                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                  SUPERIOR COURT OF NEW JERSEY
                                  APPELLATE DIVISION
                                  DOCKET NO. A-0492-11T4
                                              A-1593-12T4

STATE OF NEW JERSEY,

     Plaintiff-Respondent,              APPROVED FOR PUBLICATION

                                           NOVEMBER 29, 2017
v.
                                          APPELLATE DIVISION
ROLANDO TERRELL,

     Defendant-Appellant.
_______________________________

         Submitted September 17, 2015 - Decided May 3, 2016

         Before Judges Lihotz, Fasciale and Higbee.

         On appeal from Superior Court of New Jersey,
         Law Division, Essex County, Indictment Nos.
         09-07-2029 and 09-07-2032.

         Joseph E. Krakora, Public Defender, attorney
         for appellant (Alison S. Perrone, Designated
         Counsel, on the brief).

         Carolyn A. Murray, Acting Essex County
         Prosecutor, attorney for respondent (Lucille
         M. Rosano, Special Deputy Attorney General/
         Acting Assistant Prosecutor, on the brief).

PER CURIAM

     Defendant Rolando Terrell appeals from convictions under

two indictments.   The first, Indictment No. 09-07-2029, charged

him with numerous crimes regarding the September 8, 2008 arson,

robbery, and murders of four victims.   Co-defendant Lester Hayes
was charged in the first fifteen counts of this indictment. 1                      The

second, Indictment No. 09-07-2032, charged defendant with the

single    count     of    second-degree       possession    of   a    weapon    by    a

certain persons not to possess weapons, N.J.S.A. 2C:39-7(b).

      During defendant's trial, Hayes, who pled guilty pursuant

to a negotiated plea agreement, testified on behalf of the State

as   to   the    events      underlying   the    charges    against     defendant.

Following       trial,   a   jury   acquitted     defendant      of   some   crimes,

convicted him of others, and hung on the counts charging murder

and one weapons offense.            Immediately thereafter, a second trial

was held, limited to the certain persons offense in the separate

indictment; the jury found defendant guilty.                  Defendant was then

sentenced.         Defendant     appealed      from   the   final     judgment       of


1
     An Essex County Grand Jury charged defendant, under
Indictment No. 09-07-2029, with: second-degree conspiracy to
commit robbery, N.J.S.A. 2C:5-2 (count one); two counts of
first-degree robbery, N.J.S.A. 2C:15-1 (counts two and three);
four counts of first-degree knowing and/or purposeful murder,
N.J.S.A. 2C:11-3(a)(1) and (2) (counts four, five, six and
seven); four counts of first-degree felony murder, N.J.S.A.
2C:11-3(a)(3) (counts eight, nine, ten and eleven); second-
degree unlawful possession of a handgun on September 8, 2008,
N.J.S.A. 2C:39-5(b) (count twelve); second-degree possession of
a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count
thirteen); second-degree conspiracy to commit aggravated arson,
N.J.S.A. 2C:5-2 and 2C:17-1(a)(1) and (2) (count fourteen);
second-degree aggravated arson, N.J.S.A. 2C:17-1(a)(1) and (2)
(count fifteen); third-degree defacing a handgun, N.J.S.A.
2C:39-9(e)   (count   sixteen);   and  second-degree   unlawful
possession of a handgun, N.J.S.A. 2C:39-5(b) (count seventeen).
Count seventeen was severed at trial.



                                          2                                  A-0492-11T4
conviction and argued the sentence imposed was excessive.                       His

challenges are presented under Docket No. A-0492-11.

    While this appeal was pending, the State retried defendant

on the murder and weapons defacement charges.                       Defendant was

convicted    of   the    four   murder       charges   and   acquitted    of    the

weapons charge.       Defendant appeals from the convictions and the

sentences imposed for these crimes.               The challenges raised are

presented under Docket No. A-1593-12.

    We    calendared      the   matters      back-to-back     and    address    the

issues raised in both appeals in one opinion.                       Following our

review of the arguments, in light of the record and applicable

law, we affirm.

                                        I.

    These facts are taken from the trial records.                      Initially,

we recite the facts leading to defendant's indictment, followed

by the results of the trial and retrial.                   Next, we separately

discuss     defendant's     arguments        challenging     his     convictions.

Additional    facts     specific   to    defendant's     arguments     raised    on

appeal will be included in the discussion of each argument.

                                        A.

    Michael       Fields,   his    daughter,       his   girlfriend      (Fields'

girlfriend), her daughters and grandchild lived at a residence

on Columbia Avenue in Irvington.              Fields, an avowed member of a




                                         3                               A-0492-11T4
gang, was a drug dealer and worked with gang associates James

Williams and Kevin Wigfall.            Fields openly stated he kept drugs

and sales proceeds in his home.

       Although Fields was imprisoned, he remained in contact with

his    girlfriend,     Williams    and        Wigfall.        Fields    also     knew

defendant.      Five days prior to the September 8, 2008 murders,

Fields called his home and defendant answered the phone.

       Other witnesses confirmed defendant visited the Columbia

Avenue residence prior to the murders and fire.                  One resident of

the home (the survivor) testified regarding defendant's visit in

early August, accompanied by Williams and Wigfall, and again

approximately two weeks before the murders.                   During this latter

meeting Fields' girlfriend, the survivor, and defendant sat in a

1997   red    Jeep   Grand   Cherokee.         Defendant     questioned    Fields'

girlfriend,     who    related     a     threatening        telephone    call    she

received and stated she was considering moving.

       On the morning of September 8, 2008, Hayes was waiting at a

bus    stop   when    defendant,       driving   a    red    Jeep,     stopped    and

motioned him to get in the vehicle.                  Hayes knew defendant from

prison and believed defendant was offering him a ride to his

mother's home.        Once in the vehicle, defendant told Hayes, "we

getting [sic] ready to go do this robbery now."                         Hayes told

defendant he was not interested, but defendant replied, "Nah, we




                                          4                                A-0492-11T4
getting [sic] ready to do it right now."              Hayes understood he

was to accompany defendant.

      The pair drove to and parked across the street from the

Columbia Avenue apartment.        Defendant told Hayes he intended to

rob the home, admitting he knew "the girl that lives [t]here,"

and   knew   her   boyfriend    was   in   prison.      Defendant    stated:

"Everything is going to be all right, Mu.            You know, we going to

go in here [sic], and get this money, and get this shit, and

come out, and it's going to be real easy."

      Defendant handed Hayes an empty Corona bottle.                Next, he

retrieved a gas container from the rear of the Jeep, took the

bottle, filled it with liquid, put a sock around the top and

handed the filled beer bottle back to Hayes.               Defendant also

showed Hayes a loaded black automatic handgun.

      The pair exited the Jeep and headed to Fields' girlfriend's

apartment.    As defendant followed Hayes up the stairs, he placed

the beer bottle in Hayes' back pocket and covered the bottle

with Hayes' shirt.       Fields' girlfriend answered the door and

recognized defendant.     Defendant introduced Hayes as "Uncle Mu"

and Fields' girlfriend         allowed them to enter.        Once inside,

Hayes described defendant's interaction with Fields' girlfriend

this way:

             [Defendant] turned and asked, you know,
             like, "Is everything still all right in



                                      5                              A-0492-11T4
            here," you know, inquiring about, you know,
            where's the drugs at, and stuff, if they're
            still here, and that's when it took a turn,
            because she was like, "Nah, they came and
            got it last night, yesterday," or whatever,
            and he was like, "Nah, it's still here,"
            like, he knew it was still in the house, and
            she was trying to tell him, like, no, it
            wasn't in there, and they . . . kept going
            back and forth, and he's, like, "I know it's
            in here," and she's like, "Nah, nah, it's
            not in here, it's not in here."

Fields'    girlfriend   became   hysterical     and   defendant     grew   more

aggressive    and   insistent    drugs   were   in    the   home.     As    the

argument continued, defendant "reached behind him and pulled the

gun out, and put it on her neck, and was like, 'I know it's in

here.     Bitch, I know it's in here.'"         Hayes explained defendant

continued to push Fields' girlfriend and hold the gun at her

neck, demanding she turn over the drugs.

            [A]ll of a sudden . . . [w]hen [defendant]
            pushed her for the last time, she backed up,
            and reached and grabbed something, like a
            little bag, like a billfold or something
            like that, and said, "Here, take it."    She
            threw – she must have threw [sic] it at him,
            because it bounced, and it hit him, and it
            fell, and it was a little – some money. It
            just hit the floor.

Defendant retrieved the object.

    Hayes believed defendant obtained what he wanted and moved

to exit the residence.       Defendant grabbed the beer bottle from

Hayes' rear pocket.      Hayes heard defendant say he was "tired of

you bitches."       He turned and saw defendant pull the sock from



                                     6                                A-0492-11T4
the bottle and splash its contents throughout the room.                       As

Hayes left the house he heard a gunshot.             He walked across the

street and recalled hearing a total of four or five gunshots.

When he saw defendant exit, Hayes saw smoke coming from the

windows of the home.

      The survivor, who had described the earlier meeting held in

the Jeep with defendant and Fields' girlfriend, awoke and heard

a man's voice saying "'Where's it at?             Where's it at?      You know

what I'm looking for.'"        She told police she heard only one male

voice,   which     "wasn't    old,    and    it   wasn't    young,"    perhaps

belonging to someone in his twenties or thirties.              She described

the voice as "anxious," and sounded like the man "was stopped

up,   like   he   had   a   cold."    When    interviewed    that     day,   she

believed the voice was familiar but she was unable to identify

the person; she believed she could identify the voice if she

heard it again because she heard the man talking throughout the

incident.

      During the altercation, the survivor hid in her closet and

attempted to call for help.2         When she first tried to escape, she

stopped after she heard the front door close.                 However, when

smoke alarms sounded and smoke from the living room filled the


2
     The initial 9-1-1 call was disconnected and repeated calls
were made, all of which were played for the jury.



                                       7                               A-0492-11T4
apartment, she grabbed her young nephew, ran out the back door

and began screaming for help.

         As Hayes stood across the street, he saw defendant leave

the apartment and enter the Jeep.                 Defendant picked up Hayes and

the two drove toward East Orange.                      Defendant told Hayes, "'I

don't     need    no    codefendants,     Mu.'"         Defendant     told    Hayes   he

wanted to go to Brooklyn, New York.                     Hayes agreed to get him

there.     As they drove, defendant pointed to a tattoo on his neck

and Hayes knew defendant was a gang member.                           Defendant told

Hayes: "'Yeah, Mu, I love this shit right here, I'd die for

it,'"     which    Hayes   realized       meant    he    "couldn't     tell   on   him,

because he was part of the . . . gang, and they'll come get me

if   I    did,    you   know,    'cause    they    –    they're   a   vicious      group

. . . ."          Hayes testified he felt nervous, but did not want

defendant to suspect he might inform authorities.                      While stopped

in traffic, defendant told Hayes to toss the near empty Corona

bottle from the Jeep window; defendant also threw out the sock.

         During the drive, Hayes received several calls from his

girlfriend.         For defendant's benefit, he pretended the calls

were from his mother and informed defendant he was late, as he

promised his mother he would help her get to work.                            To avoid

revealing his home address, Hayes asked defendant to stop at a

location     other      than    his   residence.        As   he   exited     the   Jeep,




                                           8                                   A-0492-11T4
defendant handed Hayes $200, repeating:         "'You know, I don't

need no codefendants now.'"     Hayes took the money "so . . . it

wouldn't look like, you know, like, I would tell on him or

anything."      Hayes assured defendant: "'Yeah, all right, Man,

I'll see you later . . . .'"

     The next day, after consulting with his attorney, Hayes

voluntarily surrendered to police.     He did not know defendant's

name, but described him and chose defendant's photograph from an

array.   He also made an in-court identification.

     The State also presented evidence from neighbors.      One, who

was across the street, heard two gunshots and observed "two or

three" Afro-American men running from a residence and enter a

red "truck."3    The witness reported the fire located in the house

across the street from where the red vehicle was parked.          The

following day, the witness was interviewed by police and chose

defendant's photograph from an array, identifying him as one of

the men observed running from the house after gunshots were

heard.       During   trial,   the    witness   made   an   in-court

identification of defendant and also identified a photograph of

the red Jeep, stating it was the "red truck" she saw parked on

Columbia Avenue on September 8, 2008.     On cross-examination, the




3
     The witness did not testify during defendant's retrial.



                                  9                         A-0492-11T4
witness advised overhearing another neighbor refer to one of the

men as "Mu."

       A different neighbor described seeing an orange Jeep at 7

a.m. parked on Columbia Avenue on the morning of September 8,

2008, as he exited his driveway.               The windows were tinted and he

could tell only that someone was inside the vehicle.

       Firefighters      were   dispatched       between    7:40   and    7:50    a.m.

Fields' girlfriend and another were dead, after being shot in

the head; two others, although shot in the head, were alive;

however, they later succumbed to their injuries.

       On September 10, 2008, while relating the events to her

boyfriend,     the    survivor    suddenly       realized   she    recognized     the

man's voice she heard on the morning of the shootings.                            The

following day police brought her in for additional questioning.

In a taped statement, she told police she was "a hundred percent

positive that [she] knew who it was," naming defendant, whom she

knew   as   "Unc."        She    was    shown     photographs      and    identified

defendant's picture as "Unc."              She also identified photographs

of Williams and Wigfall.               At trial, the survivor insisted she

initially      told   police     she     could    recognize       the    voice,   but

conceded that remark was not in her September 8, 2008 statement.

       Essex    County    Prosecutor's         Office   Detective        Christopher

Smith testified regarding his involvement in law enforcement's




                                          10                                A-0492-11T4
investigation, beginning on the morning of September 8, 2008.

He confirmed he first spoke to the survivor that morning and she

told him she recognized the voice, which was familiar, but was

unable to identify the man.               He also confirmed the survivor

subsequently identified defendant as the one she heard screaming

at Fields' girlfriend.          Police obtained a search warrant for the

Jeep and an arrest warrant for defendant.                Defendant surrendered

to police on September 13, 2008.

      Detective     Kenneth     Dougherty    was   called    by   the     State    to

testify regarding an unrelated Essex County Prosecutor's Office

investigation conducted in conjunction with the Drug Enforcement

Administration (DEA).          Police monitored an authorized wiretap of

the phone of Bengie Davis, who engaged in calls with defendant,

Williams,     and    Wigfall,     which      implicated     knowledge       of     or

involvement in the murders.

      Davis   testified,       prior   to    September      8,    2008,    he     met

defendant in a Newark bar, where the two were drinking.                          When

defendant began "acting out of control" and firing a gun in the

air, Davis took the weapon and kept it at his residence.                           He

described the weapon as a black nine-millimeter handgun with a

red dot on its side.           Davis said defendant "just kept calling

me,   harassing     me   for    it,"   meaning     his   gun.      Specifically,

defendant called Davis on September 7, 2008, when Davis told him




                                        11                                 A-0492-11T4
he was "inpatient [sic] as hell."                       Defendant told Davis he was

"meaning        .    .   .    to     come    through    and     get    it,"        which    Davis

interpreted to mean defendant would be coming to get the gun.

Davis confirmed defendant came to his apartment on September 7,

2008,     and       Davis     returned       the   gun.       Also,        Davis    identified

defendant's voice in calls he received that were played for the

jury.4

       Davis further admitted he knew Williams and Wigfall and

they were fellow gang members.                       He also knew defendant drove a

Jeep     Cherokee,           which     he    believed     was     owned       by     Williams.

Finally, he acknowledged he was testifying as a condition of a

negotiated          plea      agreement        resolving        narcotics          trafficking

charges.

       Police        recovered         an     operable     defaced          Hi-Point        nine-

millimeter          handgun        from     another    person.         Four       spent     shell

casings recovered from Columbia Avenue were determined to have

been     fired       from     the    handgun,      confirming         it    was    the     murder

4
     Among the wiretapped recordings played for the jury were:
(1) session 2050: a September 7, 2008 call at 10:03 p.m. from "a
gentleman who referred to himself as Uncle Rat in one of the
prior sessions, and . . . Davis"; (2) session 2051: a September
7, 2008 call at 10:05 p.m., between Davis and someone
identifying himself as Uncle Rat; (3) session 2052: a September
7, 2008 call at 10:08 p.m. between Davis and someone identifying
himself as Uncle Rat; (4) session 2057: a September 7, 2008 call
at 10:24 p.m., between Davis and "Mizi," who was Williams; (5)
session 2058: a September 7, 2008 call at 10:25 p.m., between
Williams and Davis.



                                                12                                       A-0492-11T4
weapon.        Davis testified this nine-millimeter handgun was the

same gun with the red dot he had taken from and later returned

to defendant on September 7, 2008.

      The State presented expert testimony regarding the fire,

its origination and cause.             A forensic chemist, qualified as an

expert    in    fire     debris     analysis,    identified     the   presence    of

volatile substances on the victims' clothing, the clothing Hayes

wore on September 8, 2008, and in the Jeep.                      The State also

called a street gang expert.

      Defendant presented testimony from a private investigator,

who had measured distances from the Columbia Avenue address to

the testifying neighbor's homes.                  Although a pretrial ruling

permitted       a    defense   expert      to    testify   in   specified     areas

regarding the accuracy and reliability of voice identification

evidence, defendant called no other witnesses and offered no

documents.

      On April 12, 2011, the jury rendered its verdict after

considering the evidence presented over fifteen days of trial.

The   jury     acquitted     defendant     of    first-degree    robbery    of   one

victim (count three) and second-degree aggravated arson (count

fifteen), but convicted him of first-degree robbery of Fields'

girlfriend          (count   two)    and   the    second-degree       offenses     of

conspiracy to commit robbery (count one), unlawful possession of




                                           13                              A-0492-11T4
a   handgun    (count      twelve),     possession         of     a    handgun    for    an

unlawful   purpose      (count       thirteen),      and    conspiracy       to    commit

arson (count fourteen).             The jury was unable to render a verdict

on all murder charges (counts four through eleven), as well as

possession of a defaced firearm (count sixteen).                          Finally, in a

separate      trial,    the     same    jury      convicted          defendant    of    the

separately       charged      certain      persons    not       to     possess    weapons

offense.

       At sentencing, on the State's motion, the judge determined

defendant was a habitual offender.                   After merger, he imposed a

life term of imprisonment on count two subject to the parole

ineligibility      period      of    the     No   Early         Release    Act    (NERA),

N.J.S.A. 2C:43-7.2; a concurrent twenty-year term, with a ten-

year    period     of   parole       ineligibility         on     count    thirteen;       a

concurrent ten-year term subject to NERA and a mandatory five-

year parole supervision on count fourteen; and on the possession

of a weapon by certain persons not to possess weapons conviction

in the separate indictment, a consecutive ten-year term, subject

to a five-year parole ineligibility period.                       Defendant filed an

appeal from these convictions (Docket No. A-0492-11).

       Defendant was re-tried by a jury on the four murder, four

felony murder and the firearm defilement charges (counts four




                                            14                                    A-0492-11T4
through eleven and sixteen).         The State's evidence was largely

identical to what was presented in the first trial.

    On July 11, 2012, the second jury found defendant guilty of

all eight homicide counts, but acquitted him on the weapons-

defilement    count.    After     merger,    he   was    sentenced     to   four

consecutive seventy-five-year terms, subject to NERA, and five

years of parole supervision upon release.                The sentences were

ordered to be served consecutively to the life sentence imposed

on the initial conviction.5        Defendant appealed (Docket No. A-

1593-12).

                                     B.

    On     appeal   defendant    raises     several     issues   for   review.

First, in appealing his initial conviction, docketed at A-0492-

11, he argues:

            POINT ONE
            THE IMPROPER EXCLUSION OF EXPERT TESTIMONY
            TO ASSIST THE JURY IN EVALUATING THE
            RELIABILITY OF CRITICAL VOICE IDENTIFICATION
            EVIDENCE    REQUIRES    THE   REVERSAL    OF
            DEFENDANT'S CONVICTIONS.

            POINT TWO
            THE GANG EXPERT EVIDENCE IN THIS CASE WAS
            IRRELEVANT, PREJUDICIAL AND INADMISSIBLE,
            THEREBY DEPRIVING DEFENDANT OF HIS RIGHT TO
            A FAIR TRIAL.




5
     The    State   moved   to   dismiss    count     seventeen,   which     was
granted.



                                     15                                A-0492-11T4
         POINT THREE
         DEFENDANT'S   ROBBERY  CONVICTION   MUST  BE
         VACATED BECAUSE GIVEN THE STATE'S FAILURE TO
         REQUEST AN ACCOMPLICE LIABILITY CHARGE, THE
         JURY QUESTIONS DURING DELIBERATIONS, AND THE
         PARTIAL VERDICT, IT IS LIKELY THAT THE JURY
         IMPROPERLY CONVICTED DEFENDANT OF ROBBERY AS
         AN ACCOMPLICE.

Second, in appealing his initial conviction on retrial, docketed

at A-1593-12, defendant argues:

         POINT ONE
         SINCE THE JUROR EXCUSED DURING DELIBERATIONS
         WAS NEITHER ILL NOR UNABLE TO CONTINUE UNDER
         [RULE] 1:8-2(d), AND THE JURORS HAD ALREADY
         REACHED AN ADVANCED STAGE OF DELIBERATIONS,
         HER REMOVAL AND THE COURT'S REFUSAL TO
         DECLARE A MISTRIAL VIOLATED DEFENDANT'S
         RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL
         BY AN IMPARTIAL JURY.    U.S. CONST. AMENDS.
         V, VI, XIV; N.J. CONST. (1947) ART. I, [¶¶]
         1, 9, 10.

         POINT TWO
         THE GANG EXPERT EVIDENCE IN THIS CASE WAS
         IRRELEVANT, PREJUDICIAL AND INADMISSIBLE,
         THEREBY DEPRIVING DEFENDANT OF HIS RIGHT TO
         A FAIR TRIAL.

         POINT THREE
         PROSECUTORIAL MISCONDUCT DEPRIVED DEFENDANT
         OF HIS RIGHT TO A FAIR TRIAL.

         POINT FOUR
         EXPERT TESTIMONY    PERTAINING TO THE CHEMICALS
         TOLUENE    AND     D5    WAS   IRRELEVANT   AND
         MISLEADING, AND    THEREFORE, SHOULD NOT HAVE
         BEEN ADMITTED AT   TRIAL.

         POINT FIVE
         DEFENDANT IS ENTITLED TO A NEW TRIAL BASED
         ON THE STATE'S DISCOVERY VIOLATION.




                                  16                       A-0492-11T4
      We will address these issues seriatim.               Where appropriate,

we will include additional factual context and combine similar

matters.

                                          II.

                                          A.

      Defendant asserts several arguments challenging evidentiary

determinations made by the trial judge.               Specifically, defendant

cites as error:       (1) the exclusion of defense expert testimony

evaluating the reliability of voice identification evidence; (2)

the   admission      of     what    he     characterizes      as   the    State's

prejudicial,     irrelevant        gang    expert    evidence;     and   (3)    the

admission of the State's misleading expert testimony pertaining

to the chemicals Toluene and D5.

      Generally,     when    reviewing      the   admission   or   exclusion     of

evidence, appellate courts afford "[c]onsiderable latitude" to a

trial judge's determination, examining "the decision for abuse

of discretion."       State v. Kuropchak, 221 N.J. 368, 385 (2015)

(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. Jenewicz, 193 N.J. 440,

456   (2008)     (stating     "the       abuse-of-discretion       standard"     is

applied    "to   a   trial    court's      evidentiary   rulings     under     Rule

702").     Importantly,       "[u]nder      th[is]   standard,     an    appellate




                                          17                              A-0492-11T4
court should not substitute its own judgment for that of the

trial court, unless 'the trial court's ruling was so wide of the

mark that a manifest denial of justice resulted.'"                 Kuropchak,

supra, 221 N.J. at 385-86 (quoting State v. Marerro, 148 N.J.

469, 484 (1997)).

             Expert testimony is admissible if it meets
             three criteria:

                 (1) the intended testimony must
                 concern a subject matter that is
                 beyond the ken of the average
                 juror; (2) the field testified to
                 must be at a state of the art such
                 that an expert's testimony could
                 be sufficiently reliable; and (3)
                 the witness must have sufficient
                 expertise to offer the intended
                 testimony.

             [State v. Henderson, 208 N.J. 208, 297
             (2011) (quoting Jenewicz, supra, 193 N.J. at
             454).]

      When   considering     proffered   expert    testimony,      the   trial

court exercises discretion in determining "[t]he necessity for,

or propriety of, the admission of expert testimony, and the

competence of such testimony."       State v. Zola, 112 N.J. 384, 414

(1988), cert. denied, 489 U.S. 1022, 109 S. Ct. 1146, 103 L. Ed.

2d   205   (1989).    "The    qualifications      of   an    expert   and   the

admissibility of opinion or similar expert testimony are matters

left to the discretion of the trial court."                 State v. McGuire,

419 N.J. Super. 88, 123 (App. Div.) (citing State v. Torres, 183




                                    18                                A-0492-11T4
N.J. 554, 572 (2005)),       certif. denied, 208 N.J. 335 (2011);

State v. Summers, 176 N.J. 306, 312 (2003).

     Finally, "[t]he party offering the evidence has the burden

of proof to establish its admissibility."         Torres, supra, 183

N.J. at 567.

            The proponent of expert testimony must
            demonstrate that it would "enhance the
            knowledge and understanding of lay jurors
            with respect to other testimony of a special
            nature normally outside of the usual lay
            sphere."   State v. Kelly, 97 N.J. 178, 209
            (1984) (quoting State v. Griffin, 120 N.J.
            Super. 13, 20 (App. Div. 1972)).          In
            addition, the proponent must demonstrate
            that   the   expert's  testimony  would   be
            reliable. Id.

            [State v. J.Q., 252 N.J. Super. 11, 25 (App.
            Div. 1991), aff'd 130 N.J. 554 (1993)).]

                                  1.

     On appeal, defendant does not contest the denial of his

Wade challenges.6     Rather, defendant sought to introduce expert

testimony from Steven Penrod, Ph.D., a research psychologist and

licensed attorney, identifying factors affecting the reliability

of   what   he   termed   "earwitness"   identification.   Defendant

6
     A separate Wade hearing was conducted to examine whether
police   identification    procedures    undergirding    the   six
identification    witnesses     suffered     from    impermissible
suggestibility. See United States v. Wade, 388 U.S. 218, 87 S.
Ct. 1926, 18 L. Ed. 2d 1149 (1967).       Specifically, the judge
considered defendant's challenges to the reliability of the
survivor's testimony regarding her recognition of the voice she
heard yelling at her mother on the morning of the murders.



                                  19                         A-0492-11T4
proffered his expert would inform the jury of relevant social

science studies and experiments conducted by others regarding

the potential for misidentification, designed to aid evaluation

of   the     reliability     of    the        survivor's    voice       recognition

testimony.

      Following       an   N.J.R.E.      104      hearing    to       discern     the

admissibility of the expert's proffered testimony, the judge, in

a written opinion, reviewed each of the eleven areas set forth

in   Dr.   Penrod's    report.7        The    judge   concluded       the   expert's

opinion    was    admissible      in   part     to    address     the   scientific

evidence     concerning      factors          affecting     the       accuracy     of

identifications.           The     judge       determined       the     limits     of

admissibility, deeming certain subjects inadmissible for reasons

including: the expert was found not qualified to address the

area; the testimony risked misleading the jury; the concepts

related matters of common sense; and the opinion tended to tread

on the jury's credibility determinations.

      Defendant argues "the limited nature of testimony permitted

under the [c]ourt's ruling" neutralized the effectiveness of Dr.

Penrod as an expert and amounted to reversible error.                        We are

not persuaded.




7
      The report is not included in the appellate record.



                                         20                                 A-0492-11T4
     Reviewing whether the expert's proffered voice recognition

testimony was admissible, the trial judge examined the areas Dr.

Penrod     discussed.        First,         the    judge    disallowed      testimony

designed    to   attack      a    witness's       credibility,      concluding      the

latter subject rested solely within the province of the jury.

The inclusion of testimony directed to the credibility of other

witnesses is not permitted.                 Henderson, supra, 208 N.J. at 297

("[E]xperts may not opine on the credibility of a particular

eyewitness.").       The judge did not suggest, nor do we infer, Dr.

Penrod offered an opinion on whether the survivor's recognition

was accurate.8

     Next,    the    judge       determined       Dr.   Penrod    was   permitted    to

testify regarding the relationship of stress and perception, and

specifically     address         the    effect     on   a    witness      experiencing

stress,    extreme    duress,          or   danger.         The   judge    found    the

information would aid the jurors and highlight flaws with the

commonly held belief that a person's ability to perceive is

heightened under highly stressful circumstances.                          However, he

disallowed    testimony      regarding        voice     recognition       because   Dr.

8
     Among the areas of Dr. Penrod's asserted expertise was "a
variety of jury issues," including "specialized issues on jury
decision making," which amounted to sixty percent of his
research grant funding.   We determine the judge's opinion was
directed to testimony, which at times, related to the influence
of a witness' statements.        These were correctly found
inadmissible.



                                            21                                A-0492-11T4
Penrod never offered an opinion, but only reviewed published

research with which he was familiar.                              As the judge noted, Dr.

Penrod       "did     not     provide        his       own    analysis       or    expertise."

Further, Dr. Penrod related only a "minimal recitation of the

facts and the process underlying the research" he reviewed and

acknowledged some research did not reflect the identification

circumstances presented at trial.                            Thus, the judge found the

expert       could    not    testify         on   the    issue      because       the    expert's

opinion was not validated by his reasoning or understanding of

the underlying methodology of others as applied to the facts at

hand.    The judge concluded such testimony "would present a risk

of misleading the jury."

       Dr. Penrod was also permitted to opine on the relationship

of a witness's confidence or level of certainty in making the

identification and its accuracy.                        However, he was excluded from

testifying          regarding          the    impact         of    subsequent          events     as

affecting witness confidence because the issue was "a matter of

common sense."

       Dr.     Penrod       next       discussed       the    small       body    of    research,

although he did not name the researcher, suggesting when people

view     a     face     and        a    voice      simultaneously           the        chance     of

misidentification             increases.                The       judge     disallowed          this

testimony, noting the doctor "did not apply his own analysis or




                                                  22                                      A-0492-11T4
expertise" on the issue, but "merely repeated the results of the

other researcher's studies" and the manner in which the study

was conducted was not described.                  The judge concluded the expert

"was unqualified" in this area and his "testimony would present

a     risk   of        misleading    the     jury."9       Similarly,      regarding

"unconscious transference," the act of transferring one person's

identity to another "from a different setting, time or context,"

the    judge   found       Dr.    Penrod    did    not   apply   his    analysis        or

expertise to the research he reviewed, and his comments would

risk misleading the jury.

       The   judge       also    found    inadmissible    opinion      regarding:      an

individuals' ability to estimate duration of events; the idea

that identifications are at times inaccurate; concepts stating

the longer an individual hears a voice and alterations in the

speaker's tone increases the accuracy of the identification; the

fact that other competing voices overlaid with a speaker's makes

identification           more     difficult;      and    the   longer     the      delay

following         an     event,     the     less     accurate    the      subsequent

identification.           All of these concepts were determined to be




9
     The suggestion the survivor viewed defendant's face when in
his company two weeks earlier is not in the record.          The
survivor only testified during this encounter she sat in the
back seat of the Jeep while defendant sat in the front seat.



                                            23                                  A-0492-11T4
within    an   average    juror's    common    knowledge    and   capable      of

evaluation without need of an expert opinion.

     Finally,     on     reconsideration,      in   light   of    a   recently

released special master's report presented to assist the Court's

review in Henderson, the trial judge considered two additional

areas sought to be presented by Dr. Penrod.             First, in light of

the survivor's testimony, the judge concluded the expert could

discuss the effect on identification when a witness is told by

police    a    suspect     was      apprehended,     conditioned        on    his

demonstration of expertise.          Second, the trial judge recognized

"jurors   tend   to    underestimate     the   importance    of   the    memory

retention interval."        However, he noted Dr. Penrod's testimony

stated the "concept of memory decay falls within the area of

common sense."     Consequently, the judge declined to disturb his

prior ruling.     Defendant chose not to call Dr. Penrod at trial.10


10
     In the event of a Wade hearing, the accuracy of eyewitness
identification, particularly cross-racial identification, has
come under scrutiny.      Much research has been devoted to
understanding   factors    influencing    such    identifications,
concentrating on encounters between strangers.        In State v.
Henderson, Chief Justice Rabner, writing for the unanimous
Court, comprehensively discussed social science research as
presented by a special master's report.     The Court reviewed in
detail various "system variables," within the State's control,
Henderson, supra, 208 N.J. at 248-61, and "estimator variables,"
representing factors outside the control of the criminal justice
system, affecting an eyewitness' ability to perceive and
remember an event.   Id. at 261-72.    Henderson provides insight
regarding research limited to eyewitness identifications and
                                                       (continued)


                                       24                               A-0492-11T4
      Following our review, we note throughout his testimony Dr.

Penrod        conflated           eyewitness          identification         with          voice

recognition, often making no differentiation between the two.

In   much     of     his    discussion,         Dr.    Penrod      listed    factors          and

research affecting mistaken eyewitness testimony with little or

no   correlation           to     how   these         concepts         applied     to      voice

recognition        or      this     matter.           While      the    evidence        perhaps

supported a theory that many identifications were mistaken, it

did not clearly explain what analysis a juror should undergo to

assess the State's voice identification evidence.

      Also, Dr. Penrod's testimony, generally, did not reveal the

methodologies used by the researchers he cited to.                           This lack of

foundation undermined the validity of wholesale acceptance of

the restated conclusions.                Rather than offering his reasoning

based    on    his      experience      and     study      regarding       the   impact        on

memory, in turn affecting the accuracy of identification based

on sight or hearing, Dr. Penrod was described by the trial judge

as   "parroting"         the      research.11         To   the    point,     Dr.    Penrod's



(continued)
courts now have the benefit of a legal standard for assessing
the suggestibility and reliability of eyewitness identification
evidence.   Henderson announced a new rule of law and the Court
directed its holding be applied "prospectively." Id. at 220.
11
     Dr. Penrod's testimony states the underlying nature of the
studies he referenced were contained in his report, a document
                                                    (continued)


                                              25                                        A-0492-11T4
testimony did not explain exactly what he relied on for voice

recognition opinions.       We do not know whether he referred to

empirical research, articles, or articles about research.                        In

the absence of this analysis we cannot agree the judge clearly

abused his discretion or embarked on a clear error in judgment

by limiting Dr. Penrod's expert opinion testimony.                       State v.

J.A.C., 210 N.J. 281, 295 (2012).

     On some matters, Dr. Penrod was found not qualified to

present an opinion because he failed to use his knowledge and

experience,   and   apply   the    research       to    reach   the    opinion   he

espoused.     For   example,      when    asked    on    cross-examination       to

relate any details about the ten cases in which he had presented

voice recognition expert testimony, he could not.                     Moreover, he



(continued)
not provided by defendant on appeal. Nevertheless, Dr. Penrod's
testimony refers to voice recognition studies conducted by
researchers in Canada and the United Kingdom. One 1994 study by
Daniel Yarmey, Ph.D., involved voice identification from a voice
line-up,   a  circumstance    not    relevant   here.    Moreover,
introduction    of   Yarmey's     conclusion    would  necessitate
introduction of the nature of his experiment as well as the
instructions   given   to   his    college    student participants
performing the evaluation, along with possible factors impacting
their identification.    This problem is also illustrated by S.
Pryke's study, also referred to by Dr. Penrod in his testimony.
Dr. Penrod described this only as "look[ing] at multiple aspects
of identification for one event[:] people who were able to
identify voice, face, and . . . clothing." The judge's decision
to exclude recitation of these conclusions as misleading because
they were unaccompanied by the expert's analysis of the studies
represents a proper exercise of discretion.



                                         26                               A-0492-11T4
had limited information on the manner in which some studies he

cited     were        conducted,          and     for    others        he     recognized       the

conditions that diverged considerably from the facts at hand.

For     instance,         a    study           determining      how         inaccurate      voice

identifications           occur     when       subjects       listen     to     recorded    voice

exemplars       of     strangers          is    significantly          dissimilar     to     what

occurred here.

      The      weighing       of    the        admissibility        of    expert    testimony,

which     is     focused       on     factors          that    may       produce    unreliable

identifications, cannot be lightly undertaken.                                "By merely being

labeled        as     a    specialist            in     eyewitness          [or    earwitness]

identifications, an expert has the broad ability to mislead a

jury through the 'education' process into believing a certain

factor    in     an    eyewitness         [or     earwitness]        identification         makes

that identification less reliable than it truly is."                                  State v.

Young, 35 So. 3d 1042, 1050 (La. 2010) (citing United States v.

Angleton, 269 F.Supp. 2d 868, 873-74 (S.D. Tex. 2003)).

      "The      necessity          for,    or     propriety      of,      the     admission     of

expert    testimony,          and    the       competence      of    such      testimony,      are

judgments within the discretion of the trial court."                                  State v.

Long, 119 N.J. 439, 495 (1990) (quoting Zola, supra, 112 N.J. at

414).     "[A] trial judge has a responsibility to screen expert

evidence for reliability and to determine the total effects of




                                                  27                                     A-0492-11T4
proposed     evidence,       weighing        its      probative     value   against        its

potential to (among other things) confuse the jury."                                  United

States v. Schiro, 679 F.3d 521, 529 (7th Cir. 2012) ("If jurors

are    merely      told     that     voice     identifications          frequently         are

mistaken,     what     are    they    to     do       with   this   information?           The

defendant's lawyer will argue mistaken identification and jurors

told that such mistakes are common may be afraid to make their

own judgment."); see also Landrigan v. Celotex Corp., 127 N.J.

404,   414    (1992)      (noting     the     key      to    the    admissibility       of    a

particular expert's testimony is "the validity of the expert's

reasoning and methodology" and his or her ability to explain

scientific principles and to apply them in such a way that he or

she is not simply "self-validating").                         We defer to the trial

judge, who had the benefit of reading Dr. Penrod's report, as

well   as    observing       his   testimony,          and   nevertheless       found      the

omission of analysis risked juror confusion.

       We will not interfere with the conclusion that aspects of

Dr.    Penrod's      testimony       were     excluded        because    they    involved

readily      known   and     understood       concepts,         not   aided     by    expert

opinion.        Observations such as the longer a speaker hears a

voice,       the     more      accurate           a     later       identification           is

"unremarkable."           Angleton, supra, 269 F. Supp. 2d at 874 ("The

proposition that increasing the length of the recorded speech




                                             28                                      A-0492-11T4
increases     the     accuracy   of        voice        identification      seems

intuitive.").       So, too, the possible inaccuracy of a person's

time estimation and the decrease in accuracy when voices are

accompanied    by   other   distractions         are    also   self-evident    and

intuitive.    See People v. Clark, 833 P.2d 561, 614 (Cal. 1992)

("[I]t is a matter of common experience that the ability to

remember a perceptive experience diminishes over time.                     It is

also generally known that voices may sound slightly different

through different media."), cert. denied, 507 U.S. 993, 113 S.

Ct. 1604, 123 L. Ed. 2d 166 (1993).                    Identifications can be

imperfect.      However, that alone will not render obsolete the

factual analyses necessary for the admission of expert evidence.

      We agree with our dissenting colleague that a witness is

not   disqualified     because   he        did    not     conduct   independent

research.     See State v. Smith, 21 N.J. 326, 334 (1956) ("[A]n

expert may be qualified by study without practice.").                     Nor is

there dispute Dr. Penrod is a recognized expert in eyewitness

identification.      However, an expert must provide the basis for

his opinion and relate it to the facts of the case.                   While Dr.

Penrod generally discussed concepts relating to the fallibility

of eyewitness identification and related research regarding the

reliability of voice recognition, oftentimes his focus was not

on the factors aiding analysis of voice recognition that fell




                                      29                                 A-0492-11T4
outside of common experience.             By merely reciting the findings

of other researchers, Dr. Penrod did not adequately relate his

specialized knowledge or analyze concepts he studied.                  Thus, his

opinion did not aid the jury's ability to distinguish factors

bearing on voice recognition.

       We also agree the judge inartfully suggested "if the jury

were provided documentation of the study, they would be able to

come      to   the    same   conclusion."       Following      our   review,    we

understand this reference was directed to the underpinnings of

the research, found to be either sparsely mentioned or involved

circumstances differing from the voice identification of this

case.      This is why our dissenting colleague's view as to the

learned treatise exception, Rule 803(c)(18), misses the mark.12

       At its core, the purpose of the learned-treatise exception

is   to    allow     statements   from   the   treatise   to   be    admitted   as

12
       The dissent argues:

               [t]he trial judge made the inconsistent
               finding that a distinguished expert in the
               field of witness identification did not know
               enough to explain the research, but the jury
               would somehow know and understand it if
               given the studies.    Jurors not only cannot
               be given the studies, but are instructed to
               not use the internet or do their own
               research as they cannot consider studies
               that are not in evidence through the
               testimony of an expert.

               [Post (slip op. at 17).]



                                         30                              A-0492-11T4
substantive evidence, with the caveat that the expert be on the

stand to explain the studies he or she relies on and testify to

the methodology or assist in its application.                        See Jacober v.

St. Peter's Med. Ctr., 128 N.J. 475, 491 (1992) (explaining that

the learned-treatise exception is designed for "situations in

which an expert is on the stand and available to explain and

assist in the application of the treatise if desired").                              Thus,

an expert may not be called for the sole purpose of qualifying a

treatise, nor may a treatise be introduced as a substitute for

expert    testimony.       Biunno,      Current          N.J.   Rules   of    Evidence,

comment on N.J.R.E. 803(c)(18) (2015).                     Here, Dr. Penrod could

not   adequately    explain     or   assist         in    the   application        of   the

studies he introduced on voice identification.                      Instead, he only

offered      the     conclusions        without            sufficient        supporting

information    to    assist    the     jurors       in    analyzing     the       studies,

rendering that testimony inadmissible.

      Importantly,       the   judge    did     not        reject    the     underlying

scientific     research        regarding            the     accuracy         of      voice

identification      as   suggested     by     our    dissenting       colleague,        see

post (slip op. at 3).13         Rather, the judge disallowed testimony


13
     We consider our dissenting colleague's view as suggesting
the trial judge found the expert's opinion on earwitness
testimony unreliable, a subject warranting de novo review. See
post (slip op. at 2-4).     Certainly, in a criminal trial the
                                                    (continued)


                                         31                                       A-0492-11T4
based    on    unexplained       research      conducted    under    circumstances

unlike    those      presented     in    this     matter,   which        is   simply    a

witness's later recall of a familiar voice, State v. Hackett,

166 N.J. 66, 81 (2001) ("[T]he uncritical acceptance of expert

testimony can becloud the issues." (quoting State v. R.W., 104

N.J.    14,    30    (1986))),    and    found     other    opinions      unnecessary

because       they   addressed     a    subject    understood       by    jurors     who

utilized common judgment and experience, see State v. Sowell,


(continued)
admissibility of scientific test results is permitted only when
shown to be generally accepted as reliable within the relevant
scientific community.   State v. Chun, 194 N.J. 54, 91, cert.
denied, 555 U.S. 825, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008);
State v. Harvey, 151 N.J. 117, 169-70 (1997); see also State v.
Moore, 188 N.J. 182, 206 (2006) (holding scientific theories are
accepted as reliable when "based on a sound, adequately-founded
scientific methodology involving data and information of the
type reasonably relied on by experts in the scientific field"
(quoting Rubanick v. Witco Chem. Corp., 125 N.J. 421, 449
(1991))).     Further, we agree "[a]n appellate court may
independently review scientific literature, judicial decisions,
and other authorities to determine whether proposed expert
testimony is scientifically reliable and has obtained general
acceptance so that it may be admitted in our courts." McGuire,
supra, 419 N.J. Super. at 123-24 (citing Torres, supra, 183 N.J.
at 567). However, we do not agree the judge's determinations of
admissibility turned on this issue.     Nor does the record on
appeal contain evidence allowing such a review.

     For   the   reasons   discussed   in   our   opinion,   the
inadmissibility of Dr. Penrod's expert opinion was found to turn
on other bases, which we examined.        We also note expert
testimony meeting the criteria for admission may nevertheless be
excluded under other rules. See, e.g., N.J.R.E. 704 (excluding
opinion embracing an ultimate issue); N.J.R.E. 403 (excluding
opinion that would necessitate undue consumption of time or
create substantial confusion).



                                          32                                   A-0492-11T4
213 N.J. 89, 99 (2013) (noting expert testimony is unnecessary

to     discuss      a     matter    within         the   jury's        competence      and

understanding); Hackett, supra, 166 N.J. at 83 (rejecting expert

testimony because the determination was not beyond the ken of

the average juror or "so esoteric that jurors of common judgment

and experience cannot form a valid judgment" (quoting Butler v.

Acme Markets, 89 N.J. 270, 283 (1982))).

       We do not conclude the judge abused his discretion when

limiting aspects of the proffered evidence.                     McGuire, supra, 419

N.J. Super. at 123.             He satisfactorily detailed areas where the

expert's         reasoning         and       methodology          on      "earwitness"

identification testimony seemed self-validating or jumbled with

eyewitness identifications, a topic the expert was admittedly

more    familiar        with.      As    a   result,     the    expert's       proffered

testimony not only risked juror confusion but also tended toward

subjects where expert opinion would be unnecessary.                            Further,

the    judge     did     not    preclude      the    totality     of     the   expert's

testimony, which defendant chose not to present to the jury.

       Moreover, we underscore the identification at issue was the

survivor's       recollection      it    was      defendant's     voice    she    heard.

This identification was one of several introduced by the State

and is not the sole identification evidence placing defendant at

the    scene   of       the   murders.       The    survivor    was     familiar     with




                                             33                                  A-0492-11T4
defendant and had spent ten minutes talking with him in the Jeep

two weeks earlier.         Police did not conduct a voice array from

which the survivor matched the voice she heard.              See State v.

Gallagher, 286 N.J. Super. 1, 18 (App. Div. 1995) (using voice

array to identify a defendant), certif. denied, 146 N.J. 569

(1996).   Nor was the survivor's recollection prompted by police

interrogation.     In fact, the day following the murders, as the

survivor recounted the events to her boyfriend, unprompted, she

realized the man in her home was defendant.14

     Next,   we   reject    as   lacking   merit   defendant's   additional

suggestion of prosecutorial misconduct during summation, when

referencing the survivor's reported recollection of defendant's

voice.    Defendant directs his attack to this statement by the

prosecutor: "A traumatic event like that, Ladies and Gentlemen,

one could logically infer, reasonably, that she replayed that


14
     We disagree with our dissenting colleague's assertion
stating a new trial is necessary because Dr. Penrod's testimony
"undermined the testimony of, perhaps, the most credible witness
to identify defendant, albeit by voice." See post (slip op. at
1).   Further, we cannot abide the minimization of the State's
evidence against defendant, characterized in the dissent as "two
convicted felons who testified in exchange for sweetheart plea
deals, and a young woman who survived the crimes by hiding in a
closet." See post (slip op. 2). The State presented more than
twenty   witnesses,   five   lay   individuals,   experts,   law
enforcement, scientists from the State crime lab and fire
officials.   Our role in reviewing this matter does not include
making credibility assessments, as such a determination rests
solely with the jury.



                                     34                            A-0492-11T4
over and over in her mind, and she, by doing that, determined

who that voice was."

      Not only was no objection made at trial, suggesting the

statement was innocuous, but also evidential support for the

statement was included in the survivor's testimony.                                See State

v. Carter, 91 N.J. 86, 127 (1982) (stating a prosecutor may

argue any conclusion rationally supported by evidence).                                    The

prosecutor's       assertion       restated            facts     and       responded        to

defendant's vigorous cross-examination attacking the survivor's

ability to identify defendant's voice.                      No plain error is found.

R. 2:10-2.

                                            2.

      Defendant      also       challenges         the        admission,           over    his

objection,    of     the    State's     expert         on    gang-related          activity,

Lieutenant    Earl    J.    Graves     of    the       Essex    County        Prosecutor's

Office.       Defendant         contends     the        trial        judge    abused       his

discretion by allowing testimony, which exceeded "even the broad

boundaries" permitted for admission of such evidence.                              He argues

defendant's involvement in a gang had no relevance to motive,

opportunity, or the victims and co-defendant's involvement in

the   crimes.        As     a    result,         its    admission          was     extremely

prejudicial, warranting a new trial.                        During retrial, the same

objection    was   raised       when   the   State          sought    to     use    the   same




                                            35                                       A-0492-11T4
expert evidence and witness.             We have reviewed both transcripts

and   note     the     State's        evidence   is   generally   consistent.

Therefore, we have chosen to describe the issue as it unfolded

in the first trial, understanding the same arguments arose on

retrial.

      The    introduction        of     expert   testimony   regarding   gang

behavior is guided by State v. Torres, 183 N.J. 554 (2005).                 In

Torres, the defendant was charged with first-degree murder as an

accomplice in the killing of a member of his gang by fellow gang

members.     Id. at 562-64.           Examining whether gang-related expert

testimony was admissible under N.J.R.E. 702, the Court aligned

with other jurisdictions and concluded "testimony explaining the

structure, organization, and procedures of street gangs would be

helpful to a jury's understanding of the relevant issues at

trial."     Id. at 573.     However, the Court cautioned expert gang

testimony

             must be restricted to those areas that fall
             outside the common knowledge of jurors. For
             example, a juror generally would not be
             expected to be familiar with the structure
             and organizational aspects of gangs or the
             significance of particular gang symbols.
             Those areas fall within the specialized
             knowledge of the expert, who by virtue of
             his training, experience, and skill can shed
             light on such subjects.

             [Ibid.]




                                          36                         A-0492-11T4
In Torres, the expert testimony regarding a defendant's gang

involvement       was       "relevant    to     show   the    connection       between

defendant's actions as the leader of the gang and the actions of

the   other     gang    members    who    actually      committed       the   murder."

Ibid.

      During a Rule 104 hearing, Lieutenant Graves testified as

to the origination of the specific gang set to which defendant,

Fields, Wigfall and Williams belonged.                     He identified the gang

structure, explaining defendant's role as an "OG" or "original

gangster" who headed a set, and the role of the soldiers in a

gang, explaining the information was provided by defendant and

recorded in prison classification documents.                       Also discussed was

the significance of tattoos to identify gang affiliation and

"intimidate" or "influence" others.                    Specifically linking his

expertise to the facts in this matter, Lieutenant Graves noted

his review of the wiretapped phone calls with Davis, revealed

defendant's statements support the understanding that he holds a

leadership position in a gang set and identified himself as a

"Triple OG."

      In    a    comprehensive      oral        opinion,     the     judge    concluded

Lieutenant Graves was qualified as an expert in street gangs and

permitted       him    to    testify,    concluding        defendant's       claims   of

prejudice were not outweighed by the probative value of the




                                           37                                  A-0492-11T4
evidence.    In reaching this conclusion, the judge reviewed the

evidence under the rigors of the four-factor test identified in

State v. Cofield, 127 N.J. 328, 338 (1992), and evaluated its

admissibility under N.J.R.E. 404(b).15     In doing so, the judge

concluded the evidence was relevant to "defendant's opportunity,

knowledge and motive" to commit the crimes targeted to this

specific home and family.    The judge barred testimony regarding

alleged gang habits for weapons used in criminal activity.

     In discussing the claimed prejudice to defendant, the judge

noted there was clear and convincing evidence of defendant's

gang involvement, including his own statements, the survivor's

testimony stating Fields, Williams and Wigfall knew each other

15
     "In Cofield, the Court developed 'a rule of general
application in order to avoid the over-use of extrinsic evidence
of other crimes or wrongs[.]'"      State v. Sheppard, 437 N.J.
Super. 171, 189 (App. Div. 2014) (alteration in original)
(quoting Cofield, supra, 127 N.J. at 338), certif. denied, 221
N.J. 219 (2015).    The four-pronged test for admissibility of
other evidence of prior bad-acts includes:

            1. The evidence of the other crime must be
            admissible as relevant to a material issue;

            2. It must be similar in kind and reasonably
            close in time to the offense charged;

            3. The evidence of the other crime must be
            clear and convincing; and

            4. The probative value of the evidence must
            not be outweighed by its apparent prejudice.

            [Cofield, supra, 127 N.J. at 338.]



                                 38                        A-0492-11T4
from their gang set, Hayes' compliance with defendant's requests

and the significance of defendant showing Hayes his tattoo.                 The

judge found the prejudice to defendant by the expert's testimony

was not outweighed by the probative value supporting motive and

opportunity for commission of the crimes, including defendant's

access to Williams' red Jeep, defendant's knowledge of the drugs

and money held by Fields' girlfriend, defendant's access to her

home, and Hayes' reaction to defendant's tattoo.

    Defendant moved for reconsideration, arguing the testimony

was unnecessary to explain other lay witness statements and duly

prejudicial.       The   motion   was    denied.         Also,    defendant's

objection during trial prior to the State's presentation of the

witness was overruled.

    At trial, following voir dire, Lieutenant Graves was asked

limited questions regarding the gang set, code names used for

guns and weapons, the use and significance of tattoos, the set's

structure,     enforcement   of   discipline,      and    use    of   personal

property.      His testimony and expressed opinion was far more

circumscribed than that presented in the Rule 104 hearing.                   He

stated only that defendant was a member of the gang set based on

his tattoo and statements during the wiretap.




                                    39                                A-0492-11T4
      On appeal, defendant maintains "the workings of the gang

were not even marginally related to the crime and defendant's

role in it."      We disagree.

      At   trial,       the   survivor     connected     Fields,       Williams      and

Wigfall to the same gang and stated defendant "was in the gang

as well" and "was . . . over all of them."                   Fields confirmed the

gang relationship of the parties and that defendant told Hayes

the   robbery     was    of     "his   man's    girl,"     referring      to    Fields.

Lieutenant      Graves    also     confirmed      Davis'     testimony      regarding

defendant's statements about "his girlfriend" were references to

his gun, although Lieutenant Graves admitted the reference was

not necessarily limited to gang members.                    In his conversations

with Hayes, defendant conveyed a message by specifically drawing

attention    to   his     set    tattoo.        Lieutenant      Graves    also    noted

defendant's higher rank in the gang caused Williams to give

defendant his Jeep when directed to do so.

      The limited areas covered by the expert aided the jury's

understanding       of    defendant's      reference       to    his     tattoo    when

telling Hayes he did not "want any co-defendants" as an implied

threat to secure his silence, defendant's use of Williams' Jeep,

and   defendant's        relationship      with    Davis,       Williams,      Wigfall,

Fields and his girlfriend.             Moreover, as the trial judge noted,

no other evidence could fully explain defendant's opportunity in




                                           40                                  A-0492-11T4
committing these crimes, and why the events unfolded as they

did.

       We also reject the notion defendant's convictions resulted

because     of    evidence       of   his    gang    membership.          See    State    v.

Goodman,      415    N.J.    Super.         210,    226    n.4     (App.    Div.       2010)

(reaffirming a court "may not convict an individual merely for

belonging to an organization that advocates illegal activity")

(quoting United States v. Abel, 469 U.S. 45, 48, 105 S. Ct. 465,

467, 83 L. Ed. 2d 450, 455 (1984)), certif. denied, 205 N.J. 78

(2011). To reach such a result would require us to disregard the

judge's      supported      findings         leading      to     his   conclusion        the

proffered testimony was helpful for the jury's understanding or

other witness testimony and not designed to enhance the State's

evidence.        Moreover, such a conclusion gives no consideration to

the jury selection voir dire16 and jury instructions issued by

the trial judge limiting the use of the evidence.

       We   determine       no    basis      to     interfere      with    the     judge's

exercised         discretion          in      admitting          Lieutenant        Graves'

circumscribed       testimony,        which       provided     a   framework     for     the

jury's      understanding        of    key    events,      testimony       by    the     lay


16
     A series of five questions issued during jury selection
examined whether a prospective jury could remain fair and
impartial in performing as a juror if evidence of defendant's
gang involvement was presented.



                                             41                                   A-0492-11T4
witnesses    and    the    relationship    between   defendant   and    co-

defendants.17      Finally, the judge mitigated possible prejudice

through   the   use   of   direct   voir   dire   questions   during   jury

selection.      Goodman, supra, 415 N.J. Super. at 234;          State v.

Muhammad, 145 N.J. 23, 52 (1996) (stating "there is no reason to


17
     Our dissenting colleague concludes the expert testimony is
neither   relevant    nor   probative,   but    "significant[ly]"
prejudicial. See post (slip op. at 40). We cannot accept this
view, which appears to overstate the breadth of the ten pages
containing Lieutenant Graves' sustentative direct and cross-
examination testimony.    At trial, Lieutenant Graves did not
opine that defendant was a higher ranking member than Fields,
Williams and Wigfall, see post (slip op. at 38), or state
defendant had no fear of retaliation from Fields because of gang
hierarchy, see post (slip op. at 39). Rather, Lieutenant Graves
succinctly related the general gang set hierarchy.          Facts
regarding defendant's rank and authority in the gang were
elicited by Hayes, Fields and the survivor.    Also, we note the
dissent rejects the judge's factual findings in favor of an
independent weighing of the evidence, including the credibility
attached to facts asserted by other State witnesses.

     As to whether the testimony was unduly prejudicial, our
colleague   emphasizes   that   gang   evidence   is   inherently
prejudicial.   Certainly, "[o]ther-crimes evidence is considered
highly prejudicial."     State v. Vallejo, 198 N.J. 122, 133
(2009).   However, the trial judge considered all evidence and
took appropriate steps at voir dire to mitigate possible
prejudice.     The trial judge also crafted explicit jury
instructions limiting the jury's use of the evidence as to
motive. See Goodman, supra, 415 N.J. Super. at 230 (admitting
gang evidence to prove motive).      "The mere possibility that
evidence could be prejudicial does not justify its exclusion."
State v. Long, 173 N.J. 138, 164 (2002).      The trial court is
necessarily in the best position to balance possible resulting
prejudice from the admission of this evidence.          State v.
Krivacska, 341 N.J. Super. 1, 40 (App. Div.), certif. denied,
170 N.J. 206 (2001), cert. denied, 535 U.S. 1012, 122 S. Ct.
1594, 152 L. Ed. 2d 510 (2002).



                                     42                           A-0492-11T4
believe that jurors will not act responsibly in performing their

duty").

       We also reject, as unfounded, defendant's claim Lieutenant

Graves' testimony exceeded the bounds permitted by the judge and

the Court in Torres.         Defendant identifies no specific statement

or line of testimony to support this contention.                             His broad

generalization is rejected as meritless.                   R. 2:11-3(e)(2).

                                          3.

       Defendant further cites as error the admission of testimony

regarding the chemicals toluene and decamethylcyclopentasiloxane

(D5) found at the crime scene, in the red Jeep, and on Hayes'

clothing.     This issue was raised not only in the initial trial,

but also on retrial.18

       On appeal, defendant argues, as he did before the trial

judge, the testimony was not relevant because the existence of

these substances failed to prove his guilt.                   We disagree.

       The   evidence    was      related      to    the    aggravated    arson      and

conspiracy    to    commit     aggravated       arson      charges.      The   State's

witness, a chemist who qualified as an expert in fire debris and

hair    analysis,     explained         although      often    found     in    various

household    products,       it   was    rare   to    find    these    two     volatile

18
     The same judge tried each matter.        His ruling during
retrial remained consistent with his initial decision.        In
presenting the issues, we describe it as presented initially.



                                          43                                   A-0492-11T4
substances     together.             Yet    she       isolated         both     chemicals         on

clothing    worn    by   the     victims,         in    the       Jeep,      and    on    several

articles of Hayes' clothing.                Although not probative of how the

fire started, the proofs tended to corroborate Hayes' version of

events because the unusual combination of substances found in

these   places     logically         linked      Hayes       to    Fields'         girlfriend's

apartment and the Jeep.               See State v. Koskovich, 168 N.J. 448,

480-81 (2001).       Thus, there was a logical connection between the

State's    proffered      evidence         and    a    fact       in    issue.           State    v.

Hutchins, 241 N.J. Super. 353, 358 (App. Div. 1990).

    We     conclude      the    judge      properly         analyzed         the    issues       and

correctly noted defendant's challenges affected the weight of

the evidence and not its admissibility.                       N.J.R.E. 403.              Further,

the judge also noted the probative value outweighed any possible

prejudice,     which      was        skillfully         borne          out    during       cross-

examination,       and   which        perhaps         led    to     the       jury's      verdict

acquitting    defendant         of    aggravated            arson.           See    Hisenaj       v.

Kuehner, 194 N.J. 6, 24-25 (2008) (deficiencies in expert report

were explored during cross-examination and jury was charged with

determining the opinion's weight).

                                             B.

    Defendant argues the judge erroneously denied his motion

for a new trial on the first-degree robbery charge.                                    Defendant




                                             44                                           A-0492-11T4
suggests    the    jury's    questions         and   the     resultant    deadlock    on

murder and felony murder shows some jurors likely relied on a

theory of accomplice liability to support the related robbery

conviction.       Defendant maintains the State's failure to include

an    accomplice    liability         charge    precludes      his    conviction     for

first-degree robbery.           We are not persuaded.

       After     receiving      the     charge,      which    included     Model   Jury

Charge (Criminal), "Robbery in the First Degree (N.J.S.A. 2C:15-

1)" (Sept. 10, 2012),19 and Model Jury Charge (Criminal), "Felony

Murder-Slayer Participant (N.J.S.A. 2C:11-3(a)(3))" (March 22,

2004),     the     jury    submitted       questions         during      deliberations

including:        "Does felony murder mean the defendant killed the

victims in this case, or does it mean that he was present during

the   murders,     but    did     not   actually      kill     the   victims?"       The

State's    theory    of     the    case    against      defendant     was   principal

liability.       Defendant suggested the question showed the jury was

considering defendant's guilt as an accomplice, which was never

presented.




19
     The model charge cited is the one provided by the State in
its appendix, but the charge in effect at the time of trial in
2011 was Model Jury Charge (Criminal), "Robbery in the First
Degree (N.J.S.A. 2C:15-1)" (May 10, 2010).        Nevertheless,
neither side claims the modification presents a meaningful
distinction.



                                           45                                 A-0492-11T4
      The judge granted defendant's request to respond directly

to the jury question and then reread the applicable charges.                   He

informed the jury:

             Okay, just so it's crystal clear, Ladies and
             Gentlemen, I'm going to reread your question
             number 2 and then answer it in two parts.

             "Does felony murder mean that the defendant
             killed the victims in this case?" In short,
             the answer is yes.    In order to find the
             defendant guilty of felony murder, you must
             find beyond a reasonable doubt that this
             defendant, Mr. Terrell, killed the victims
             in this case.

             And then the second part, "Or does it mean
             that he was present during the murders and
             did not actually kill the victims," the
             short answer to that question is no.

The judge elaborated on these direct answers, making it clear

the   jury   could   not   find     defendant    guilty   of   felony    murder

"unless you first find him guilty beyond a reasonable doubt of

having committed . . . the robbery. . . .               [I]n summary, . . .

in order for [defendant] to be found guilty of murder, the State

must prove beyond a reasonable doubt that the defendant is the

person   who    actually      killed    the     victims."       This     latter

instruction was repeated when recharging felony murder, and the

judge added "felony murder does not mean that the defendant was

merely   present     during   the    murders,"    but   defendant   had     been

"engaged in the commission of, or attempt to commit, or flight




                                       46                               A-0492-11T4
after committing, or attempting to commit, the crime of robbery,

as charged in counts 2 and 3."

      Deliberations       resumed   and    additional      questions     from      the

jury issued.      One question asked whether, with respect to felony

murder,     "a   person    would    have       to   directly     rob   the    person

murdered, or does this merely mean that any one person within

the   household    was    robbed    and    members    of   the    household      were

murdered?    This seems to be a contradiction."

      The judge informed the jury that neither the indictment nor

the verdict sheet were evidential.              He then instructed:

            In order for you to find the defendant . . .
            guilty of felony murder, you must find
            beyond a reasonable doubt that he killed the
            victims named in [the indictment] during the
            course of committing a robbery of . . .
            [Fields' girlfriend] and [the survivor]
            regardless of whether he did so purposely or
            even    knowingly,    or     recklessly   or
            unintentionally, or even by accident. . . .
            [Y]ou cannot find [defendant] guilty of
            felony murder unless you first find him
            guilty beyond a reasonable doubt of having
            committed the crime of robbery.

      The verdict sheet reflected the jury found defendant guilty

of robbing Fields' girlfriend, but not guilty of robbing another

victim.     The jury could not reach a verdict on the murder and

felony murder counts.

      Ruling on defendant's motion for a new trial, the judge

rejected defendant's argument the deadlock on the felony-murder




                                          47                                 A-0492-11T4
charge     must    mean     "[a]t        least      one    of   the    jurors       must     have

believed that defendant was an accomplice, not the principal,

with respect to the killings."                     Defendant's argument, if he were

the principal, assumed, as suggested by the guilty verdict on

the robbery charge, he would have been convicted of felony-

murder.     The judge found the State's evidence was sufficient to

support the first-degree robbery conviction.

      A motion for a new trial is granted in the interests of

justice, but the court shall not set aside a jury verdict as

against the weight of the evidence "unless, having given due

regard     to     the    opportunity          of    the     jury      to     pass    upon     the

credibility       of     the      witnesses,         it    clearly         and    convincingly

appears that there was a manifest denial of justice under the

law."      R.     3:20-1.          The    motion      is    decided         in    the   court's

discretion in light of the credible evidence and with deference

to   the   trial        judge's    feel       for    the    case      and    observation       of

witnesses.        State v. Brooks, 366 N.J. Super. 447, 454 (App. Div.

2004).      In    our     review,        we   do    not    attempt      to       reconcile    the

verdicts on the different counts nor do we speculate whether

verdicts resulted from "jury lenity, mistake, or compromise,"

and even inconsistent verdicts.                       State v. Muhammad, 182 N.J.

551, 578 (2005).           For purposes of appellate review, this court

considers the evidence presented in support of each count as




                                               48                                       A-0492-11T4
though it were presented in a separate indictment.                  Ibid.     The

jury verdict will be upheld where there is sufficient evidence

to support the conviction on that charge.              Ibid.

    Here,       defendant   was    charged    under       N.J.S.A.    2C:15-1,

providing a person is guilty of first-degree robbery when in the

course of a theft he or she attempts to kill, purposely inflicts

serious bodily injury, or uses or threatens the use of a deadly

weapon.     Neither the State nor defendant sought an accomplice

liability charge.

    Evidence from both the survivor and Hayes satisfied the

requisite    proof   requirements    beyond    a       reasonable    doubt    for

first-degree robbery.       Hayes described defendant's use of a gun

held to Fields' girlfriend's neck, while demanding she turn over

the drugs and money she held.         Defendant's attempt to view the

robbery   and   felony-murder     verdicts    as   a    combined    offense    is

rejected.    The evidence supporting first-degree robbery could be

separated from the evidence of the murders.               These verdicts are

not inconsistent.     The trial judge's analysis of the sufficiency

of the evidence when denying defendant's motion for a new trial

is well supported.

                                     C.

    After deliberations commenced in the retrial, two jurors

requested to be excused.        Defendant contends the court erred in




                                     49                                A-0492-11T4
handling    these        requests      by        not     properly    making        necessary

findings before excusing one of the two jurors.                              He maintains

the    judge's    inquiry      and    conclusory          findings    were       flawed    and

dismissal       and     replacement         of     one    juror,     over        defendant's

objection, rather than declaring a mistrial, was error.                                     We

reject these arguments.

       The jury had deliberated for less than eight hours, spread

over    three    days     (excluding        time       periods     spent     listening      to

testimony       read    back),       when    the       judge      informed       counsel     he

received a note stating:               "Two jurors, Number 2 and Number 6,

would like to be replaced."                 Counsel was consulted regarding how

to    proceed.         Defendant     argued       the     judge    should     "not    react"

because the juror's note was not specific as to the hardship and

"pulling them out now -- it might be premature."                                   The State

disagreed and reminded the judge "Juror [2] was originally the

juror that was perceived to have been spoken to.                              Whether you

term it as a threat — but it was an outside communication to her

on Friday morning as she walked into the courthouse."                              The State

also    noted      juror       six     related          she    recorded       an     outside

communication encounter.             Jurors two and six were actually being

transported       to     and   from     the        courthouse       by     the     sheriff's

department.       Following argument, the judge conducted separate




                                             50                                      A-0492-11T4
limited voir dire of the jurors.               As a result of the jurors'

responses, the judge excused juror two and retained juror six.

      After explaining he "just want[ed] to broadly discuss the

issue    of   why   a   note    indicating    that      you    would     like     to   be

replaced      was   sent   out;   that's     the   focus      of   the   discussion,

nothing having to do with the jury deliberations[,]" the judge

engaged in the following colloquy with juror two:

                   THE COURT: Do you feel that there is
              emotionally an inability for you to proceed
              and perform your duties as a deliberating
              juror?

                    THE JUROR:     Yes.

                   THE COURT: Do you feel that these
              emotions that you have, again, would impact
              upon your ability to perform your function
              in this case?

                   THE JUROR: No.   I know it's not
              balanced in what I'm saying, but there's
              [sic] reasons why I can't speak without
              giving away –

                   THE COURT: I don't want you to talk
              about that.   But emotionally, you feel you
              can't continue?

                    THE JUROR:     Correct.

                   THE COURT: I'm going            to    leave     it    at
              that for now. Thank you.

      Similar questions were posed to juror six, who stated she

had     neither     emotional     nor   personal        reasons     presenting         an

inability to proceed and perform the duties of a deliberating




                                        51                                      A-0492-11T4
juror.     The judge questioned whether something else prevented

her from continuing to serve as a juror, without going into jury

deliberations.        She replied:              "Without going into – it is very

difficult to explain-"               The judge interrupted, warning: "I don't

want to go there."              Juror six confirmed her reason for wanting

to be excused was neither emotional nor physical.

       One of the two alternates replaced juror two.                               Juror six

returned      to     the        panel.          The     judge   issued       supplemental

instructions        and    directed       deliberations         begin   anew       with   the

replacement        juror.        The     jury    then     retired   for      the    evening.

Deliberations commenced the following morning.                            Approximately

two-and-one-half hours following the replacement of juror two,

the jury reached a verdict.

       "Our   review       of    a   trial      court's    decision     to    remove      and

substitute a deliberating juror because of an 'inability to

continue,' pursuant to Rule 1:8-2(d)(1), is deferential."                             State

v. Musa, 222 N.J. 554, 564-565 (2015).                      "We will not reverse a

conviction unless the court has abused its discretion."                              Id. at

565.

       The substitution of a juror in the course of deliberations

"does not in and of itself offend a defendant's constitutional

guarantee of a trial by jury."                  State v. Ross, 218 N.J. 130, 146

(2014) (quoting State v. Williams, 171 N.J. 151, 162 (2002)).




                                                52                                  A-0492-11T4
"Such a substitution, however, contravenes constitutional norms

if it impairs the mutuality of deliberations — the 'joint or

collective exchange of views among individual jurors.'"               Id.    at

146-47   (quoting      Williams,   supra,   171   N.J.   at   163).   Indeed,

"[b]ecause     juror    substitution    poses     a   clear   potential     for

prejudicing the integrity of the jury's deliberative process, it

should be invoked only as a last resort to avoid the deplorable

waste of time, effort, money, and judicial resources inherent in

a mistrial."    State v. Hightower, 146 N.J. 239, 254 (1996).

           The court must be prepared to declare a
           mistrial if a substitution would imperil the
           integrity of the jury's process.      [Id. at
           253-54.]     The   trial   judge's   task   is
           complicated   by  the   need   to  diligently
           protect   the    confidentiality    of    jury
           communications as he or she inquires about
           the status of the juror in question.        In
           short, the trial court must appraise the
           impact of a juror substitution on the jury
           process, without tainting that process with
           intrusive questions.     It must conduct any
           inquiry with respect to the juror in
           question . . . with caution and restraint.

           [Ross, supra, 218 N.J. at 147.]

    Accordingly, a trial judge "must determine the cause of the

juror's concern and assess the impact of the juror's departure

on the deliberative process."           Ibid.     Further, the judge must

"ascertain whether a reconstituted jury will be in a position to

conduct open-minded and fair deliberations."             Ibid.




                                       53                             A-0492-11T4
       In Ross, the Court reviewed consideration of this issue and

reaffirmed     that      when    "evaluating        the   cause    of     a    juror's

departure,     our    courts     distinguish        between   reasons         that    are

personal to the juror, which may permit a substitution under

Rule     1:8-2(d)(1),      and     issues       derived    from    'the        juror's

interaction with the other jurors or with the case itself,'

which may not."           Ibid. (quoting Williams, supra, 171 N.J. at

163).    Also, "a juror's psychological condition as a reason that

he or she cannot continue to serve" has been addressed, noting

"[t]he 'inability to continue' language of Rule 1:8-2(d)(1) 'has

been invoked to remove a juror under circumstances that reveal

the juror's emotional condition renders him or her unable to

render a fair verdict.'"            Id. at 148 (quoting Williams, supra,

171 N.J. at 164); see also State v. Miller, 76 N.J. 392, 406-07

(1978)    (holding    judge      properly     substituted     an   alternate          for

juror who explained because of "his then nervous and emotional

condition, he did not think he could render a fair verdict").

In conducting this examination, the judge must not permit the

juror to reveal confidential jury communications.

       Defendant     argues     juror   two's    explanations      fell       short    of

what     is   required     to    satisfy      the    "inability     to        continue"

standard, stating the juror did not reveal she was unable to

render a fair verdict.           He additionally infers from juror two's




                                         54                                    A-0492-11T4
comments she was at odds with other jurors, a circumstance not

justifying excusal.          See State v. Jenkins, 182 N.J. 112, 124-25

(2004)   (holding     excusing       a    juror    cannot    be   based   on    juror

interaction with other jurors).                   We cannot agree the juror's

comments revealed she faced hostility from fellow jurors or, as

defendant now suggests, she was "the lone holdout."                       See Ross,

supra, 218 N.J. at 152.          We reject such presumptions following

examination of the facts of record.

      Here,    the   trial    judge      sought    the     explanation    for   juror

two's request to be excused.                    He directed the juror not to

reveal juror interactions and deliberations.                      Jenkins, supra,

182 N.J. at 134 ("We cannot overemphasize the importance of

maintaining the secrecy of jury deliberations . . . .").                        After

the inquiry, the judge explained the release of juror two: "I

think she was pretty unequivocal that emotionally she cannot

continue.     I even got that sense from her voice.                 Her voice was

cracking . . . ."        This determination relied on not only the

juror's verbal responses, identifying her emotional condition,

but   more    importantly,     was       supported    by    observations       of   her

physical demeanor, which revealed an obvious personal emotional

condition, rendering her unable to continue.

      Regardless of whether we believe the inquiry could have

been more probing to more firmly establish the juror's specific




                                           55                               A-0492-11T4
reasons confirming her request was personal to her, we respect

the trial judge's ability to assess the juror's demeanor to

discern whether the concern was evoked from interaction with

fellow jurors or an individualistic reaction in reviewing the

matter.      See Musa, supra, 222 N.J. at 565 ("The deference that

must be accorded to trial court fact-findings in this setting

must guide our analysis . . . .").

      The trial judge was in the best position to make these

determinations.        We conclude the trial judge properly carried

out the delicate balancing function in exercising his reasoned

judgment.      Indeed, he evaluated the testimony of two jurors,

each seeking to be excused, and reached different conclusions

based on their responses.          The judge gave particular attention

to   each    juror's   demeanor.      The   conclusion    that   juror    two

suffered emotional distress making her unable to continue was

based   on    the   judge's   evaluation    of   her   statements   and   the

judge's observations of her demeanor, which must be respected.

Nothing in the record suggests juror two requested to be removed

because of her interaction with other jurors or that she was a

lone holdout.       As we discuss below, the record shows the jury

was still evaluating evidence and had not progressed to a point

where the determination of factual issues was reached.




                                     56                             A-0492-11T4
       We decline to conclude the judge abused his discretion in

releasing juror two based on alternate possibilities developed

in hindsight for the juror's expressed emotional condition, as

advanced by defendant or the additional questions which could

not have been posed to the juror as suggested by our dissenting

colleague, see post (slip op. at 46).                      See Musa, supra, 222 N.J.

at     572    ("Questioning,          if    not        properly    narrowed,      had    the

potential to impermissibly infringe on the jury's deliberative

process."); State v. Lipsky, 164 N.J. Super. 39, 44 (App. Div.

1978) ("[D]espite our disagreement with the judgmental decision

of   the     trial    judge,     we   cannot       conclude       that   his   failure    to

utilize       better      alternatives        constitutes          an     abuse   of     the

discretion vested in him in procedural matters of this kind.").

Reversal is unwarranted.                   Goodman, supra, 415 N.J. Super. at

234-35.

       We further conclude the deliberations had not proceeded to

such    an    extent      that   declaring         a    mistrial    was    required.       A

mistrial      is     an   extraordinary        remedy       used    when   necessary      to

prevent a manifest injustice.                 Id. at 234.           The Court has also

observed that granting a mistrial "imposes enormous costs on our

judicial system," and the Court has noted its awareness that the

prospect of a retrial after days or weeks of testimony creates a

sense of futility.          Jenkins, supra, 182 N.J. at 124.




                                              57                                  A-0492-11T4
       In Ross, the Court rejected imposition of an "inflexible

rule" to preclude substitution of a juror after deliberations

had been conducted over a specific period of time.                             Ross, supra,

218    N.J.   at     151.     Instead,      a     trial    judge,         in   his    or    her

discretion,         considers       whether       the     jury       appears         to     have

progressed     to     the   point    where       issues    have       been     decided       and

deliberations        cannot    commence      anew       with    a    substituted          juror.

Ibid.

       In this matter, although three days had elapsed from the

time the case was submitted to the jury, deliberations had not

been continuous.           The jury submitted numerous requests to review

evidence and hours of read-backs were performed in the presence

of the jury and the alternates.                  No prior communications denoted

the jury had decided any factual or legal issue.                               Id. at 152.

Viewing all events and circumstances, we conclude the judge's

determination the jurors were in the process of sifting through

the    evidence      and    deliberations        had     not    gone      so   far    that     a

reformulated        jury    would    not    be    able     to       conduct     open-minded

dialogue      to     determine      defendant's          guilt       or    innocence         was

supported.         See Williams, supra, 171 N.J. at 169 (stating read-

back    requests       demonstrate         uncertainty          concerning       guilt        or

innocence and did not prohibit substitution of jurors).




                                            58                                        A-0492-11T4
       We   further   reject    defendant's       speculative    inferences     in

support of a claim of prejudice, drawn from the shorter period

of   deliberations     undertaken      by   the    reconstituted    jury.       No

prejudice or other basis requiring we set aside the judge's

substitution of the excused juror is presented.

                                       D.

       Defendant next identifies five comments by the State during

summation as unsupported by evidence.              He asserts these improper

statements amount to prosecutorial misconduct, the cumulative

prejudice from which denied him a fair trial.

       Following the State's closing, defendant objected to these

five    statements     as    unfounded:     (1)    suggesting    Williams      and

Wigfall must have been the people who picked up the drugs from

Fields' girlfriend; (2) stating Williams and Wigfall were gang

members     with   defendant;    (3)    asking     whether,     after    spending

eighteen     years    in    prison,   Hayes   really    knew    what     gasoline

smelled like; (4) assuming "women are better at colors than men"

to explain why a male witness stated the Jeep was orange not

red; and (5) asserting defendant was not arrested when stopped

for a motor vehicle infraction while driving the Jeep after the

crimes because the officer did not have a warrant.                      The State

responded to each of these, providing the facts from which these

reasonable inferences were drawn, and conceded the judge could




                                       59                                A-0492-11T4
give an instruction addressing the comment about women's ability

to identify colors.

       Considering the arguments, the judge stated "looking at the

five    you   mentioned,      I      don't    think    it     warrants     a     curative

instruction       on    any     of     them."         He     emphasized        the   jury

instructions were replete with references that it is the jury's

decision "as to what the facts [we]re not what counsel says"

and "summations are not evidence, [they are] the recollection of

the    evidence   by    the   attorneys."         He       also   noted    the    overall

instructions to the jury fully address their role and properly

inform the jurors that summations include counsel's "comment" on

what the State thinks was proven and what the defense thinks the

State failed to prove.

       "Prosecutors are afforded considerable leeway in closing

arguments as long as their comments are reasonably related to

the scope of the evidence presented."                  State v. Frost, 158 N.J.

76, 82 (1999).          In determining whether comments in summation

require reversal, an appellate court "must take into account the

tenor of the trial and the degree of responsiveness of both

counsel    and    the   court     to   improprieties         when   they    occurred."

State v. Marshall, 123 N.J. 1, 153 (1991), cert. denied, 507

U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993).

              Whether particular prosecutorial efforts can
              be tolerated as vigorous advocacy or must be



                                             60                                  A-0492-11T4
           condemned as misconduct is often a difficult
           determination to make.   In every instance,
           the performance must be evaluated in the
           context of the entire trial, the issues
           presented,   and   the  general   approaches
           employed.

           [State v. Negron, 355 N.J. Super. 556, 576
           (App. Div. 2002).]

Where    prosecutorial              misconduct   has     occurred,       to   justify

reversal, the misconduct must have been "so egregious that it

deprived the defendant of a fair trial."                  Frost, supra, 158 N.J.

at 83.

    Judged        by        these    standards    and     also     considering      the

comprehensive jury instructions presented to the jury by the

trial    judge,        we    cannot     agree    these    five     comments    caused

prejudice or in any way diminished the fairness of defendant's

trial.    The prosecutor's explanation, responding to defendant's

objection,   tied       testimonial       evidence      directly    to   support    the

statements to show they presented a reasonable inference from

the facts of the record.               McGuire, supra, 419 N.J. Super. at 140

(stating the prosecutor is granted "wide latitude to make 'fair

comment' on the evidence") (quoting State v. Mayberry, 52 N.J.

413, 437 (1968), cert. denied, 393 U.S. 1043, 89 S. Ct. 673, 21

L. Ed. 2d 593 (1969)).                The only exception was item four, the

prosecutor's comment on color identification.                      The inclusion of

this statement had little or no impact on the trial.




                                            61                                A-0492-11T4
    Mindful that remarks in summation must be measured in the

context of both closings and the trial as a whole, State v.

Johnson, 31 N.J. 489, 513 (1960), we find no error.                   See State

v. Mahoney, 188 N.J. 359, 376-77 (holding prosecutor's comments

were fairly based on the facts and reasonable inferences to be

drawn therefrom), cert. denied, 549 U.S. 995, 127 S. Ct. 507,

166 L. Ed. 2d 368 (2006).

                                        E.

    Defendant's final challenge lodges a discovery violation.

He maintains the State failed to timely disclose a possible

exculpatory witness, that is, a woman who had contacted police

three weeks before trial stating defendant was with her at the

time of the murders.          During jury selection, defendant's mother

called   the    judge's      chambers    advising    that   Detective    Robert

Morris   of    the   Essex    County    Prosecutor's   Office   was     given    a

statement from "Michele" who provided an alibi for defendant.

Defendant had received similar information from his mother, but

insisted the State failed to disclose an exculpatory witness.

    In    response     to    the   defendant's      application,   the     judge

stated: "You're turning it on its head.              Your client would have

had this information" because it related to where he allegedly

was during the crime.          Defendant would have known had he been

with the alibi witness.            However, he never gave notice of an




                                        62                              A-0492-11T4
alibi.   Also, the judge aptly noted this was a retrial and an

alibi was never before raised.          For these reasons, we conclude

the   argument    lacks   sufficient    merit   to   warrant   additional

discussion in our opinion.     R. 2:11-3(e)(2).

      Affirmed.




                                   63                            A-0492-11T4
HIGBEE, J.A.D., dissenting.

      I     respectfully          disagree    with     the   majority         on    several

issues.        The    trial       court   excluded     almost    all     of    a    defense

expert's testimony describing the scientific research on voice

identification, as well as the expert's opinions based on this

research, for reasons that in some instances merely implicated

the weight of the evidence, and in other instances were grounded

in    unprecedented         and     unsupportable      precepts.          The       defense

expert's     testimony        undermined      the    testimony     of,   perhaps,          the

most credible witness to identify defendant, albeit by voice.

Precluding defendant from presenting the evidence arguably in

and of itself denied defendant a fair trial; but there was more.

      The    trial        court    admitted      all   but   one    of    the       State's

expert's opinions about street gangs, even though the prejudice

to defendant — primarily demonstrating he was a high ranking

leader    of    a    dangerous       gang    —    substantially        outweighed          the

purported probative value of explaining other testimony.                                    In

addition,      the    trial       court   erred     during   the   second          trial    by

replacing a deliberating juror based on a limited and inadequate

inquiry into the juror's reasons for wanting to be excused.

      Any one of these errors had the clear capacity to affect

the   outcome        of    the     trials.        Cumulatively,        they     leave       no

reasonable doubt defendant was denied fair trials.
       It is undisputed that four women were fatally shot in the

head    during      a   robbery        and   left        to     die    in        their    burning

apartment.         The State accused defendant, Rolando Terrell, of

perpetrating the robbery of two of the victims, the arson of

their   apartment,        and    the    execution        of     all    four       women.        The

State's three key lay witnesses were two convicted felons who

testified in exchange for sweetheart plea deals, and a young

woman   who    survived     the    crimes        by    hiding         in    a    closet.        She

identified       defendant       solely       by       his      voice.             Because       my

disagreement       with    the    majority       begins         with       the    exclusion      of

expert testimony tending to undermine the voice identification,

I begin with that issue and discuss in turn the two other issues

on which I disagree with my colleagues.

              I.    EXCLUSION OF DEFENSE EXPERT'S TESTIMONY

       My disagreement with the majority on this issue involves

both the appropriate standard of review and the trial court's

application        of   legal    principles           governing        the        admission      of

expert testimony.          The majority cites State v. Kuropchak, 221

N.J. 368, 385-86 (2015), for the proposition that our review of

a trial court's evidential rulings is deferential.                                       Kuropchak

involved      neither     the     admission         of        scientific         evidence       nor

appellate review of a trial court's decision to bar a defense

expert's scientific opinions in a criminal trial.




                                             2                                            A-0492-11T4
       In State v. Torres, 183 N.J. 554 (2005), the Supreme Court

held   a   trial   court's   evidentiary   rulings    excluding    defense

expert testimony in criminal trials are reviewed under an abuse

of discretion standard, but with less deference than in other

settings.     The Court explained that when reviewing the admission

of scientific evidence, the appellate court must evaluate the

reliability of the proffered scientific evidence, noting:

           While the trial court is in a better position to
           shape   the    record   and    make    credibility
           determinations, "appellate courts can digest
           expert testimony as well as review scientific
           literature,   judicial   decisions,    and   other
           authorities."      The appellate    court   should
           carefully review the relevant authorities in
           determining the correctness of the decision to
           admit or exclude the disputed testimony.        In
           short, the appellate court need not be as
           deferential to the trial court's ruling on the
           admissibility of expert scientific evidence as
           it should be with the admissibility of other
           forms of evidence.

           [Torres, supra,    183   N.J.   at   567   (citations
           omitted).]

       There are other subtle variations in the standard of review

of the admission of defense expert testimony in criminal cases.

The admissibility of expert testimony is governed by N.J.R.E.

702:

             If    scientific,   technical,   or   other
             specialized knowledge will assist the trier
             of fact to understand the evidence or to



                                    3                              A-0492-11T4
             determine a fact in issue, a witness
             qualified as an expert by knowledge, skill,
             experience,   training,  or   education  may
             testify thereto in the form of an opinion or
             otherwise.

There    are   three     requirements         for    expert   testimony     to    be

admissible:       "(1) the . . . subject matter [must be] beyond the

ken of the average juror; (2) the field . . . must be at a state

of   the    art    [such]   that     an       expert's    testimony   could      be

sufficiently reliable; and (3) the witness must have sufficient

expertise to . . . testi[fy]."            State v. Townsend, 186 N.J. 473,

491 (2006) (quoting Torres, supra, 183 N.J. at 567-68).

     Appellate review of the second prong has moved steadily

closer to de novo review.          "An appellate court may independently

review     scientific    literature,      judicial       decisions,   and    other

authorities to determine whether proposed expert testimony is

scientifically reliable and has obtained general acceptance so

that it may be admitted in our courts."                  State v. McGuire, 419

N.J. Super. 88, 123-24 (App. Div.) (citing Torres, supra, 183

N.J. at 567), certif. denied, 208 N.J. 335 (2011)).                       Although

appellate courts continue to review a trial court's rulings on

prongs one and three for abuse of discretion, our review of a

trial court's exclusion of defense expert testimony in criminal

cases    requires      consideration      of        "[N.J.R.E.]   702's     liberal

approach favoring admissibility."               State v. Jenewicz, 193 N.J.




                                          4                               A-0492-11T4
440,    456     (2008).         With   this    in      mind,    the    Supreme      Court

explained:

               That   the   strength   of   an   individual's
               qualifications may be undermined through
               cross-examination is not a sound basis for
               precluding an expert from testifying as part
               of a defendant's defense, even if it likely
               will affect the weight that the jury will
               give the opinion.     Rather, a court should
               simply be satisfied that the expert has a
               basis   in   knowledge,    skill,   education,
               training, or experience to be able to form
               an opinion that can aid the jury on a
               subject that is beyond its ken.

               [Id. at 455.]

       Moreover, defendants in criminal cases have "a fundamental

constitutional right to a fair trial, which necessarily includes

the    right    to    present     witnesses      and   evidence       in   [their]     own

defense."       Id. at 451 (citing Washington v. Texas, 388 U.S. 14,

19, 87 S. Ct. 1920, 1923, 18 L. Ed. 2d 1019, 1023 (1967)).                             This

"fundamental right . . . is protected not only by the Federal

Constitution         but   also   by   Article    1,    paragraph      1   of    the   New

Jersey Constitution."             Ibid.   For this reason, "the substantial

liberty interest at stake for [a] defendant" is a factor that

must be considered by a trial court in exercising its discretion

to admit or deny expert testimony.                  Id. at 456.        Significantly,

"[N.J.R.E.] 702's liberal approach favoring admissibility . . .

and    the    substantial     liberty     interest       at    stake   for      defendant

[may] tip the scales in favor of finding error in the trial



                                           5                                     A-0492-11T4
court's preclusion of [a defense expert's] testimony."                                Ibid.

That should have been the result here.

       The trial judge held a pretrial hearing under N.J.R.E. 104

to determine the admissibility of the opinions of defendant's

expert,    Dr.    Steven      Penrod.        The     testimony     elicited       at    the

hearing disclosed the following information.                       Dr. Penrod has a

Bachelor's degree from Yale, a J.D. from Harvard University, and

a Ph.D. in social psychology from Harvard.                    After completing his

education,       Dr.    Penrod   served         as    an   assistant        and   a    full

professor of psychology at the University of Wisconsin.                           He then

became a faculty member at the University of Minnesota School Of

Law    before     becoming     program      director       for    joint      degrees     in

psychology and law at the University of Nebraska.                           At the time

of the hearing, he held the title of distinguished professor in

psychology at the John Jay College of Criminal Justice in New

York City where he had worked since 2001.

       Dr. Penrod described himself as a research psychologist.

He    testified    his      primary     areas    of    research       and    study     have

focused on jury decision making and eye-witness identification.

He has devoted much of his career to the study of law and

psychology,       specifically        of     memory        encoding,        recall,     and

identification         by   witnesses      particularly      in   a    criminal       trial

context.        As a result, Dr. Penrod has been qualified as an




                                            6                                     A-0492-11T4
expert    and    testified     about   memory   formation    and    eye-witness

recognition in various State and Federal courts well over 100

times.    He testified he has also been qualified as an expert in

voice identification cases approximately ten times in various

courts, although voice identification is relevant in criminal

trials considerably less often than eye-witness identification.

In 2009, the Supreme Court appointed Judge Geoffrey Gaulkin,

P.J.A.D., (retired and temporarily assigned on recall), as a

Special Master to preside over a hearing on the reliability of

eye-witnesses and prepare a report on his findings.                     Dr. Penrod

was chosen as one of the experts to testify and offer his expert

opinions at the hearing.

    Within the scientific community that concentrates on the

study of memory and witness identification, Dr. Penrod has been

asked    to    speak   and   present   his   research    papers    at    over   200

conferences involving psychologists from the United States and

Europe.       He authored or co-authored five books on eye-witness

identification and published over 140 articles on jury decision

making and witness identification.              More than forty percent of

his papers have been published in peer reviewed journals.

    His research for the last thirty years, and continuing at

the time of the hearing, was primarily funded by the National

Science       Foundation     (NSF).    He    explained    that    only     fifteen




                                        7                                 A-0492-11T4
percent     of    proposals   submitted          to    the   NSF   are   approved     for

grants yearly, and at the time of the hearing, his research was

being funded by two separate NSF grants.

      Dr.    Penrod    has    done     his       own    independent      research     and

studies      on      jury     decisions,              memory,      and       eye-witness

identification; however, he acknowledged he had not conducted

his own experiments or studies on voice identification.                                He

studied the research on voice identification, and included the

topic in one of the first articles he wrote after graduating

from Harvard.        Dr. Penrod reviewed research on the subject from

the 1930s and a published study from 1944.                         However, until the

1970s, there had been little research in that specific field.

He testified a "new flourishing body of research" was undertaken

by psychologists on voice identification starting in the 1970s.

He admitted there was still a much smaller body of research

limited to voice identification than was devoted to eye-witness

identification.       However, despite the smaller body of research,

the   investigations         focused    on        the    same      factors    and   were

"parallel streams of research."

      The doctor explained that recalling and identifying a face

or a voice a witness has seen or heard before relies on the

ability to encode and then reconstruct the memory.                       According to

Dr. Penrod, a memory is not, as is commonly believed by jurors,




                                             8                                  A-0492-11T4
a photograph or a tape recording sitting in the brain waiting to

be retrieved.     Rather, memory involves piecemeal construction

and   reconstruction    and    is   fallible.       He   testified     that

psychologists study the same factors affecting reliability of

memory reconstruction and eye-witness identification as those

studied on ear-witness identification.          Dr. Penrod provided a

list of more than twenty scientific research papers specifically

about ear-witness identification.         He particularly referenced

the work of the leading researcher on the topic, a Canadian

psychologist    named   Dan   Yarmey,   who   has   published   over    ten

research papers specifically on witness voice identification.

      Dr. Penrod testified the opinions he gave in his report

were based on scientific research on both eye-witness testimony

and ear-witness testimony that were generally accepted in the

scientific community.     He advised the court he would not comment

on the witnesses or the specific facts, as he never opines on a

particular witness's credibility.        He explained he would simply

testify about the science that could be applied by the jury to

evaluate the evidence.1




1
   The prosecutor, on one hand, argued for exclusion because Dr.
Penrod's testimony would not address the facts of the case,
while arguing on the other hand his testimony would invade the
province of the jury to determine credibility.     The judge did
not bar testimony based on either of these arguments.



                                    9                            A-0492-11T4
      Following the hearing, defendant argued Dr. Penrod was a

qualified expert in the field of voice recognition and that his

testimony would assist the jury in understanding and evaluating

the ear-witness testimony.

      The    State     did     not    call       an     expert    to     challenge       the

reliability of the science underlying Dr. Penrod's testimony;

nor did it produce any evidence disputing the general acceptance

by the scientific community of Dr. Penrod's opinions on face and

voice identification.          The State moved to exclude the testimony

of Dr. Penrod, arguing he was not qualified as an expert to give

testimony on voice recognition; that the testimony he proffered

was not outside the ken of the average juror; that he did not

give an opinion about the facts of the case; and the jury should

determine credibility without assistance.

      The    trial     judge     issued      a        written    opinion      and    order

excluding almost all of Dr. Penrod's testimony.                               First, the

judge acknowledged that although the evaluation of credibility

of   any    witness   was    solely    within         the   province     of   the    jury,

expert testimony in cases involving witness identification was

admissible to demonstrate to the jury a witness may genuinely

believe     their     identification         is       accurate    even     when     it    is

incorrect.     The trial judge stated:

           In cases where expert testimony has been admitted
           to elucidate witness statements, it was therefore



                                          10                                      A-0492-11T4
         not to address whether the witness was giving
         truthful testimony, but rather to give the jury a
         "context in which to more realistically and fairly
         . . . appraise and consider the witness' perceptual
         accuracy."    The trend is toward admitting such
         testimony after ensuring that it meets the rules
         for the admissibility of expert testimony.

         [(Citations omitted).]

    The    trial      judge   proceeded    to   rule   specifically    on   the

admissibility of each separate topic presented in Dr. Penrod's

report based on the criteria set forth in State v. Kelly, 97

N.J. 178, 208 (1984), stating:

           (1) the intended testimony must concern a
           subject matter that is beyond the ken of the
           average juror; (2) the field testified to
           must be at a state of the art such that an
           expert's testimony could be sufficiently
           reliable; and (3) the witness must have
           sufficient expertise to offer the intended
           testimony.

    In his analysis of the admissibility of evidence, the trial

judge did not exclude any of the testimony based on the second

prong of the three prong test.            In fact, the prosecutor did not

request exclusion of the testimony under prong two.                   Instead,

the prosecutor and the trial judge — as does the majority -

focused on an out-of-context quotation by the expert that he

relied on "experimental" research.                The prosecutor and trial

court   relied   on    this   quotation    when    discussing   the   expert's

qualifications to testify, thus seemingly implying the science

was in doubt, but making no finding that the subject of voice



                                     11                               A-0492-11T4
identification       was    not    sufficiently     accepted   or    reliable    for

admission.         In      fact,    Dr.    Penrod's    testimony      included     a

description    of     studies      based   on    results   from     scientifically

controlled experiments and other types of studies that gathered

data   from   field      observations      or    statistical   databases.        Dr.

Penrod at one point differentiated other types of research from

"experimental"          research     where       experiments      were   actually

conducted.     At no time did he use the word "experimental" in the

context of "unproven."

       The following is a review of the rulings made by the trial

judge on each of the reliability factors affecting ear-witness

testimony as explained by Dr. Penrod.

       A.   STRESS

       The testimony proffered by the expert on stress was based

on studies showing that when an individual is under "flight or

fight" stress, which is when they believe they are in immediate

danger, their perception and ability to construct an accurate

memory of a face or a voice is diminished.                     Their subsequent

recall of that face or voice, and thus their identification of a

defendant, is less reliable than if they were not under stress.

       The judge barred Dr. Penrod from testifying on the effect

of   stress   on     the   reliability      of   ear-witness      testimony,    thus

significantly limiting the defendant's ability to challenge the




                                           12                             A-0492-11T4
survivor's voice identification of defendant.                           The judge found

the    stress    testimony     was      not   within      the     ken   of     the   average

juror.       Specifically, he found "information concerning stress

and perception appears to be of potential help to the trier of

fact    in     understanding       the    identification           testimony         of    [the

survivor]."       The judge made a general finding that the field of

study     demonstrating         stress        diminishes          the     capacity          for

perception      is   "at    such    a    state     of    the     art    that    it    can    be

reasonably relied upon."                Indeed, Dr. Penrod testified at the

hearing      there    is    general       acceptance           within    the    scientific

community of the studies affecting both eye-witnesses and ear-

witnesses.           The      judge       stated:         "cases        evaluating          the

admissibility        of    expert       testimony        considering         'ear-witness'

identifications have drawn correlations to, or seen it                                     as a

subset of, expert testimony concerning eye witness testimony."

       However, the judge barred the testimony on stress's effect

on voice identifications holding "it appears that Dr. Penrod is

therefore       unqualified     to       testify    concerning          the    effects       of

stress    on    voice      recognition,       and       that    such    testimony         would

present a risk of misleading the jury."                        The judge reasoned Dr.

Penrod    was     unqualified       because        he    never     conducted         his    own

studies on voice identification.                   The State in their brief does

not cite any precedential published case decided by any New




                                              13                                     A-0492-11T4
Jersey court that one must have conducted their own experiments

or   studies       to   be     qualified      as    an    expert      witness.           To   the

contrary, N.J.R.E. 702 states "a witness qualified as an expert

by   knowledge,         skill,    experience,        training,            or    education     may

testify      thereto      in     the   form    of        an    opinion         or    otherwise."

(Emphasis added).              The rule does not require that an expert

personally conduct experiments.

       The trial court cites to one case from 1992 where a federal

judge barred Dr. Penrod's testimony on stress and eye-witness

testimony.         In United States v. Nguyen, 793 F. Supp. 497, 515-16

(D.N.J. 1992), the federal district court judge found one of the

reasons      for    barring      his     testimony            was   Dr.    Penrod       had   not

conducted his own experiments.                     Nguyen, which the State relied

upon   and    which      the     trial   judge       discussed        at       length    in   his

opinion,      presents          two    legally       unsupported               and    untenable

assertions which fly in the face of legal precedent in this

State and elsewhere.

       The first is the assertion that not having done original

research or experiments on a particular scientific topic is a

basis for finding an expert is not qualified to give an opinion

in that field.           The second is the assertion that a subject is

not outside the ken of the average juror if the jurors could

read the scientific studies themselves, and understand them.




                                              14                                        A-0492-11T4
       Both of those misguided assertions were repeated by the

trial    judge     here   as   reasons   to      bar    Dr.   Penrod's      testimony.

Nguyen, however, does not reflect New Jersey controlling law in

1992 or in 2011, or the law in any other state.                    The trial judge

here cited several other federal court decisions from the 1990's

that    admitted    eye-witness     expert       testimony,     including      a   1991

decision by the Third Circuit that admitted the testimony of Dr.

Penrod.      See U.S. v. Stevens, 935 F. 2d 1380, 1397 (3d Cir.

1991)

       The trial judge, again borrowing from the legally unsound

reasoning of Nguyen, further held:                  "It is likely if the jury

were provided documentation of the study, they would be able to

come    to   the   same   conclusions       .   .   .   ."     This    reasoning     is

incompatible with our Rules of Evidence.

       In 1991, the Supreme Court adopted the federal rule of

evidence on the admission of learned treatises in Jacober v. St.

Peter's Medical Ctr., 128 N.J. 475, 495 (1992).                          Before that

decision,     published        textbooks,       research      papers   or    articles

describing the current scientific knowledge in a field were not

admissible except when used on cross-examination of a witness

who acknowledged them as authoritative.                    In Jacober, the court

adopted the federal evidence rule that allowed the admission

into evidence of learned treatises.                 What prevents the jury from




                                         15                                   A-0492-11T4
considering as evidence any article published by anyone anywhere

is the requirement that the treatise be vouched for by an expert

on the stand.

       As   Justice     Stein    wrote:        "Recently,     we     noted       that      in

determining       reliability     '[t]he       focus   should       be    on    what      the

experts in fact rely on, not on whether the court thinks they

should so rely.'"            Jacober, supra, 128 N.J. at 495-96 (quoting

Ryan   v.   KDI    Sylvan     Pools,    Inc.,    121   N.J.     276,      289   (1990)).

Thus, a jury can consider a learned treatise only when an expert

can    testify    to    its    reliability,      explain      it,    and       be    cross-

examined about it.            Justice Stein explained this principle as

follows: "[t]he rule's emphasis on expert guidance, as well as

its prohibition on the receipt of learned treatises as exhibits,

limits the risk that factfinders will misunderstand or misapply

learned-treatise statements and discourages the use of learned

treatises as substitutes for expert testimony."                     Id. at 491.

       Following       the    Jacober   decision,      N.J.R.E.          803    (18)      was

adopted and learned treatises were made an exception to the

hearsay rule under the condition they be introduced by an expert

on the stand and not be given directly to the jury.                             The Rule

states:

            To the extent called to the attention of an
            expert witness upon cross-examination or relied
            upon by the expert in direct examination,
            statements contained in published treatises,



                                          16                                        A-0492-11T4
          periodicals, or pamphlets on a subject of
          history, medicine, or other science or art,
          established   as   a  reliable   authority  by
          testimony or by judicial notice. If admitted,
          the statements may not be received as exhibits
          but may be read into evidence or, if graphics,
          shown to the jury.

          [N.J.R.E. 803(18) (emphasis added).]

      The trial judge's statement that if the jurors were given

the documentation they could come to the same conclusion as the

expert as a reason to bar expert testimony is incomprehensible

in light of N.J.R.E. 803(18)'s explicit preclusion of statements

in learned treatises being received as exhibits.             The question

is,   does   the   average   juror     know   the   information     and   the

scientific acceptance of the information?           The trial judge made

the   inconsistent   finding   that    a   distinguished   expert    in   the

field of witness identification did not know enough to explain

the research, but the jury would somehow know and understand it

if given the studies.          Jurors not only cannot be given the

studies, but are instructed to not use the internet or do their

own research as they cannot consider studies that are not in

evidence through the testimony of an expert.

      A finding that Dr. Penrod was not qualified in the face of

the evidence that was presented on his qualifications was as

unsound as the court's statement the jurors themselves could




                                      17                            A-0492-11T4
read and understand the studies.              The ruling constituted a clear

abuse of discretion.

      B.    WITNESS CONFIDENCE

      The survivor testified she heard defendant speak only once

before the date of the crime.            She could not identify who he was

by his voice when interviewed by police immediately after the

crime.       The   next    day   she    spoke     to   her    boyfriend      and   she

testified, while talking to him, she realized the voice she had

heard was defendant's voice.              She did not report this to the

police until they called her to come into the station two days

after the crime.          At that point, the co-defendant had already

identified defendant as the murderer to his friend, his brother,

and the police.           The police advised the survivor they had a

suspect.       The    police      did   not     provide       her   with    a   voice

identification test similar to a line up or photo identification

test.       The witness identified defendant's voice only by her

stated recollection.        At trial she testified she was 100 percent

certain about her identification of defendant.

      Dr.    Penrod   would      have   testified      that    studies      generally

accepted by the scientific community demonstrate there was only

a   very    modest    correlation       between    the    level     of     confidence

asserted by a witness and the accuracy of their identification.

Yet, research conducted by Dr. Penrod and others showed that




                                         18                                  A-0492-11T4
jurors are systematically influenced by the level of confidence

the     witness       displays     in    their        identification         and    do     not

understand how little that means in terms of accuracy of the

identification.

      The doctor further opined that the level of confidence of a

witness is influenced by subsequent events unbeknownst to the

witness.         He    explained        even    a     response       as    slight    as    the

researcher saying "good" when the identification was made would

substantially increase the confidence of the witness.                                    Other

studies     demonstrated         that    when       the    witness    became      aware   the

person    they    identified       had    been       identified       by    someone      else,

their     confidence       in     the     identification             was    substantially

increased.

      The trial judge ruled he would allow testimony regarding

witness     confidence      being        only       modestly     correlated        with    the

accuracy of an identification, but would not allow Dr. Penrod to

testify that confidence was increased or decreased by feedback.

The judge again discussed the decision in Nguyen pointing out

that the federal judge had barred Dr. Penrod from giving any

testimony about confidence and accuracy.

      The    trial       judge     explained:             "Dr.   Penrod's      [proffered]

testimony     that       subsequent        events          may    effect      a     witness'

confidence in her testimony is a matter of common sense, and is




                                               19                                   A-0492-11T4
not outside the knowledge of the average juror."                The evidence

provides no support for this finding.

       To the contrary Dr. Penrod testified:

             Well, there have been a number of surveys of
             the general public and what they believe
             about the influence of a variety of factors
             that have been the subject of research
             investigation, and whether they have the
             same understanding of these effects as
             research psychologists.

                  The common pattern of findings is that
             some portion of the general public shares a
             belief that matches the research findings,
             but another substantial portion of the
             general public doesn't share that belief.

The average juror does not necessarily have any knowledge about

the impact of even slight feedback.          The judge's decision to bar

this testimony was arbitrary.          He did not examine the totality

of Dr. Penrod's testimony and abused his discretion.

       C.    LISTENERS' VIEW OF FACE

       Dr. Penrod testified that there is an inherent level of

unreliability in witness voice identification which is increased

when a witness looks at the person while hearing their voice.

He described studies where individuals listened to a voice and

then   had    to   identify   the   voice.   In   the   other   arm   of    the

studies, individuals saw a person's face as they spoke and then

had to identify the voice.          The results demonstrated that when a

person hears just a voice there is a better chance they will be




                                      20                              A-0492-11T4
able to subsequently identify it than if they see the person and

hear the voice simultaneously.       The reason proffered by Dr.

Penrod is that people focus more on faces than on voices, and

therefore do not create as accurate a memory of the voice.

     This is information the jury should have been allowed to

hear because it could have assisted them in their evaluation of

the identification of the defendant's voice by the survivor.

The one time she heard defendant speak before the crime was

committed, she was simultaneously looking at him.       She next

heard his voice on the night of the crime.       It was from her

memory of the prior occasion that she was able to identify his

voice.   According to the research, the reliability of her memory

could be affected if the memory of his voice was developed while

viewing defendant.2

     The judge again used the language and reasoning of the

district court judge in Nguyen to bar Dr. Penrod's testimony,

finding he was not qualified to testify as an expert because he

2
   The record does not reflect whether the survivor was looking
at defendant's face when he spoke because this area of testimony
became irrelevant when the expert's testimony was barred.     It
most certainly would have been probed during her examination if
the expert's testimony was not already barred. Then, depending
on her testimony, Dr. Penrod could have been cross-examined on
the reliability of the research.    If the testimony established
the survivor did not see defendant's face as he spoke, the State
could have moved to bar this area of testimony. Significantly,
this was not part of the trial court's reasoning for barring the
testimony.



                                21                       A-0492-11T4
relied upon the studies of other researchers, did not provide

his own analysis, and provided only a "minimal recitation of the

facts and processes underlying the research."                         The judge also

noted, "if the jury were provided documentation of the study,

they    would       be   able   to   come    to   the    same   conclusions."      The

indisputable error in that statement has already been discussed.

Such a misunderstanding and misstatement clearly constitutes an

abuse of discretion.            See Moraes v. Wesler, 439 N.J. Super. 375,

378 (App. Div. 2015) (noting abuse of discretion arises when,

among       other    things,     a   decision       impermissibly      departs   from

established policies, rests on an impermissible basis, or is

based       upon     consideration          of    irrelevant     or    inappropriate

factors).

       D.    UNCONSCIOUS TRANSFERENCE

       Dr. Penrod testified that sometimes a witness is influenced

to identify the wrong perpetrator when they have some limited

prior exposure to that person.                    He described several studies

including one where researchers staged thefts both in classroom

and in street settings.               Witnesses were asked to identify the

thief.       Twenty-five percent of witnesses wrongly identified an

innocent bystander, unconsciously transferring a face they had

some memory of to the perpetrator.                      The jury should have been




                                             22                              A-0492-11T4
permitted to consider unconscious transference in evaluating the

reliability of the witness identification.

      The studies described by Dr. Penrod on this topic did not

include    specific      studies    of   voice     identification         versus   eye-

witness identification.             However, the judge did not find his

opinions on voice identification were unscientific.                        Rather, he

again   barred     the     testimony     finding     it     could    be    misleading

because Dr. Penrod did not do his own studies or "apply his own

analysis or expertise to it."             He also found the jury "would be

able to come to the same conclusions" if they were given the

studies to read.          Barring this testimony on that basis, which

has no foundation in the law, was an abuse of discretion.

      E.   DURATION OF EXPOSURE TO VOICE

      Dr. Penrod testified at the hearing that studies show the

longer a witness is exposed to a voice, the more accurate the

witness identification of the voice.                  The trial court barred

expert testimony on both factors.

      As to the proffer that the longer the exposure the more

accurate    the     identification,          the    trial     judge       barred    the

testimony and found this was common sense and within the ken of

the   average     juror.      The    judge    was    correct    on    that    limited

finding.     The    expert,    however,       was   actually        proffering     this

testimony to explain the common understanding that duration of




                                         23                                   A-0492-11T4
exposure     is    equated   to    accuracy   is   only   true    "if   all   other

[factors] are equal."             Dr. Penrod referenced a study conducted

on military personnel who were interrogated for forty minutes

face-to-face in both high stress and low stress situations.                      The

effect of very high stress was of such significance that even

though the interrogation was of long duration the accuracy rate

of subsequent identifications was only twenty-seven percent.

      Dr. Penrod also used the concept of duration of time to

explain that although studies show that longer time exposure

improved accuracy, if the exposure was broken up in several

episodes, the observer would have better recall.                    For example,

if one hears a voice for a period of time, then there is a break

in   time,    and    then    exposure   begins     again,   the     witness    will

usually have more accurate recall than if the exposure to the

voice was for the same length of time but was continuous.                     Thus,

Dr. Penrod had more to offer to the jury than the isolated

concept that the longer one is exposed to a voice, the more

accurate     the    identification.       For      this   reason,    the   judge's

finding, which did not address the entirety of what was being

proffered and took Dr. Penrod's testimony out-of-context, was

made arbitrarily and was an abuse of discretion.




                                        24                                 A-0492-11T4
      F.    TIME ESTIMATIONS

      The    doctor's      second        opinion         about    time     of    exposure

concerned the overestimation by test subjects of the length of

time of non-routine brief events.                    A witness's description of

how long a period of time an event lasted, and thus how long

they were exposed to a persons' voice or face, according to Dr.

Penrod, is almost always overestimated by a significant amount

when the event is brief and not routine.                            Researchers found

witness     time    estimates      are       significantly        more    accurate      for

longer events than shorter events.                   The trial judge barred this

testimony because it was within the ken of the average juror,

but   offered      no   support    for       this    holding.       Some       jurors   may

believe it to be true and others may not, but few, if any,

jurors will have read the scientific literature and know what

studies have demonstrated.              Nor could they use them in the jury

room without expert testimony.

      The judge, in barring this testimony and several of the

factors     that    follow,      also     held      that    the     accuracy      of    the

witness's    testimony         could    be    tested      based    on    the    witness's

demeanor and through cross-examination.                          This finding by the

court demonstrates a lack of comprehension of the entire purpose

of    allowing      expert       testimony          on    witness       identification.

Normally     jurors      can     evaluate         credibility       because      deciding




                                             25                                   A-0492-11T4
whether someone is telling the truth is a skill learned through

experience.           The problem with witness identification is it can

be mistaken for reasons explained by Dr. Penrod, even in the

absence      of   a     motive    to   lie    that    can   be   revealed    on     cross-

examination.            The witness may be an honest person with good

intentions        who     sincerely     but        mistakenly     believes    they       are

telling the truth.               The witness's demeanor will be that of a

truth teller if they believe they are being truthful.

  Finally, the judge again found the expert just recited the

findings of others as opposed to doing original research, and

that the jury could read and understand the studies themselves.

These reasons are unsupported by the law and demonstrate an

abuse of discretion.

       G.    CHANGES IN SPEAKER'S TONE

       Dr.    Penrod      testified     another       factor     that   affects       voice

recognition is whether the speaker's tone of voice is the same.

He described a Canadian study where individuals were played a

recording of a speaker talking in a normal non-emotional voice

and subsequently were asked to identify that voice from other

voice   recordings,         including        the    original     speaker   speaking       in

very    emotional         tones.         Here,       the    survivor       first      heard

defendant's voice in a conversation while sitting in a truck,

then two weeks later at the crime scene where the speaker was




                                              26                                   A-0492-11T4
shouting and threatening in an angry voice.                The effect a change

of tone can have on the reliability of an identification could

be helpful to the jury in evaluating reliability.

      The trial judge barred it, however, because he found it was

within the ken of the average juror that hearing a voice in a

different tone would make it more difficult to identify.                       What

the judge ignored is that the study described by the expert

demonstrated statistically that subjects in the study who heard

a voice in a different tone were no more statistically likely to

identify the right voice than would have occurred by chance, or

in   other    words,   just   guessing.    While      a    juror   might    assume

through common sense that a change in tone might affect the

accuracy     of   a   voice   identification,   the       experiments   and      the

research demonstrate that tone of voice is very significant in

terms of recollection.           The trial judge did not look at the

totality of the information Dr. Penrod proffered.                   The barring

of testimony applying this limited examination of the proffered

testimony was an abuse of discretion.

      H.     COMPETING VOICES

      Dr. Penrod's proffered testimony on competing voices was

that the reliability of voice identification is diminished when

there are other voices and sounds heard at the same time.                          He

offered no additional information.          The trial judge barred the




                                      27                                   A-0492-11T4
testimony because he found this is common sense.                          There was no

error in this ruling.

      I.    RETENTION INTERVAL

      The trial judge found Dr. Penrod's testimony on the effect

of   the   duration         of    time    between    hearing   the    voice      and    the

identification         of    the    voice    was    not   beyond    the    ken    of    the

average juror, and he barred it as falling within the realm of

common     sense.        The      trial     judge    oversimplified       Dr.    Penrod's

testimony by describing it as simply an opinion that the longer

the time period between the identification and the crime, the

less accurate the identification.

      In fact, there are two time periods in this case possibly

affecting the reliability of the identification.                            First, the

survivor heard defendant's voice two weeks before she heard it

during the crime.            Second, there was a different period of time

following the crime before she was able to identify the voice as

defendant's.          The studies Dr. Penrod described in his testimony

relate     to   how    the       duration    of    time   between   first       hearing    a

voice, and then hearing it a second time, impacts the accuracy

of the identification.               Although the average juror would have a

common sense understanding that the longer the time gap, the

less accurate the identification will be, Dr. Penrod proffered

more scientific information that is not common sense and does




                                              28                                  A-0492-11T4
fall    outside      the     ken     of       the       average    juror.      Dr.       Penrod

testified:

              [M]ost people do recognize that, with the
              passage of time, we lose information.  What
              people typically will not understand, and
              what the research shows — and, indeed this
              is research dating back to the 1880s with
              regard to memory – is that the loss of
              memory is most rapid in the first few hours
              and then days following an event.

       Dr. Penrod testified that he, along with other colleagues,

have   done     a    meta-analysis            of    the    research    on   loss     of    face

memory, which demonstrated that the most rapid loss of memory

occurred      in    the     first       ten    hours.         Specifically,         in    voice

recognition         studies,       he     testified         other     researchers         found

between     a       nineteen        and       sixty-nine          percent     accuracy       in

identifying a voice after two weeks.                          This is not information

within the ken of the average juror, and it was an abuse of

discretion to bar the testimony on this basis.

       J.   VOICE VERSUS FACE RECOGNITION

       The trial judge barred Dr. Penrod's testimony that voice

identification         is     substantially               less     accurate     than      face

identification, i.e., eye-witness versus ear-witness.                               The judge

again found this was common sense and not beyond the ken of the

average juror.         The fact that it is easier to identify a face

than   a    voice     may    not        be    common       knowledge.         Dr.    Penrod's

testimony went beyond the general knowledge the average juror



                                                   29                                A-0492-11T4
might have as to the level of accuracy of voice identification.

The     research      demonstrates,          according        to      Dr.    Penrod,

"dramatically      worse"     results       for    voice     recognition.              He

discussed    the   specific       differences      and    study    results       in   his

pretrial testimony.        It was an abuse of discretion to bar all of

his testimony because of a finding the average juror may have

some information based on his or her own experience, without

recognizing the average juror is unlikely to know the accepted

scientific research that puts the juror's general understanding

in    the   context   of    the    magnitude       of    difficulties       in    voice

recognition.

       K.   WITNESS IDENTIFICATION GENERALLY

       Dr. Penrod proffered testimony about a body of research

that shows witness identification by both eye-witnesses and ear-

witnesses is much more unreliable than the average juror would

expect.     The three Kelly criteria were met by this proffer, but

the trial judge barred the testimony finding inexplicably this

could be explored on cross-examination.                  I disagree.

       There is no lay witness that can be cross-examined about

the    research    that     has     found    the        reliability    of    witness

identifications to be problematic.                 The judge's determination

this was within the ken of the average juror is not supported by

the studies relied on by the expert.                    According to Dr. Penrod,




                                        30                                   A-0492-11T4
the research demonstrates that jurors have mixed understandings

about the reliability of witness identification and the factors

that affect it.         The trial judge barred this area of testimony

because    he   found    that   "while    courts     have     allowed     testimony

concerning special factors affecting identification accuracy, it

does not appear that courts have admitted testimony concerning

the   general     reliability      or         unreliability     of   eye-witness

identifications."        It is understandable that this lack of prior

precedent would cause a trial judge to pause and consider the

reason    for   the   same.     However,       evidence     cannot   be   excluded

because it has not been found admissible in prior cases.                      As we

explained in State v. Burr, 392 N.J. Super. 538, 557 (App. Div.

2007), aff'd as modified, 195 N.J. 119 (2008):

            Our court rules allow the admission of "all
            relevant evidence" that is not otherwise
            excluded by law.       Relevant evidence is
            defined as any evidence that has "a tendency
            in reason to prove or disprove any fact of
            consequence to the determination of the
            action."    In determining whether proffered
            evidence is relevant, the trial court should
            inquire as to whether a "logical connection"
            exists between the evidence and a fact in
            issue.   Stated another way, if the evidence
            renders a desired inference more probable or
            logical,   then   the   evidence  should  be
            admitted. The test for relevancy is a broad
            one that generally favors admissibility.

            [(Citations omitted).]




                                         31                                A-0492-11T4
       Considering     this     standard       for    admissibility        of    relevant

evidence, it was an abuse of discretion to preclude Dr. Penrod's

testimony about studies on the general lack of reliability of

witness identification.           Dr. Penrod could be cross-examined by

the    State   about     any    flaws     in    the     studies        themselves,      his

reasoning, and the applicability of eye-witness studies to voice

identification.

       L.    RECONSIDERATION BY THE COURT

       After the judge ruled on the admissibility of Dr. Penrod's

testimony, the Special Master's Study ordered by the Supreme

Court was completed and released.                    Defendant made a motion for

reconsideration on the admission of Dr. Penrod's testimony.                             The

trial judge denied the motion, and stood by his prior decisions,

except for one.

       The   judge   addressed     in     some       detail      two    specific     areas

discussed in the report.           The Special Master found that jurors

tend to underestimate the importance of memory decay.                           The trial

judge acknowledged this contradicted his prior finding that this

area   of    testimony    was    within    the       ken   of    the    average    juror.

Nonetheless, he ruled it was barred as being common sense, based

on one statement, taken out-of-context, where Dr. Penrod said

the general principle was common sense.                         The judge overlooked

the balance of the expert's testimony.




                                          32                                      A-0492-11T4
      The      second     area        the   judge       addressed    was    defendant's

argument that because the witness was told by the police they

had a suspect before she identified defendant, this might have

tainted the identification.                 The judge applied the same flawed

criteria he relied upon to bar other testimony, namely, he would

only consider allowing the testimony into evidence if Dr. Penrod

had conducted his own study on this factor.3                      Defense counsel did

not contend Dr. Penrod performed such a study.

      In view of the trial judge's rulings — which eviscerated

the expert's opinion — defendant did not call the expert as a

trial witness to testify about two factors: (1) the effect of

stress on eye-witness testimony, not including the effect of

stress    on    voice     identification           or   the   crossover     between     the

studies; and (2) studies showing a witness's confidence level

and   the      accuracy     of        his    or    her    identification          are   not

correlated,       not     including         the    studies      showing    how     outside

factors can affect the witness' confidence level.                          The majority

faults    defendant       for    not    presenting        his   expert's    eviscerated

opinion,       stating:    "On    appeal,         defendant     claims     'the    limited

nature of testimony that he would be permitted under the Court's

ruling'     neutralized         its    effectiveness.           We   disagree."         Our


3
   The judge pointed out another psychologist had testified on
this factor before the Special Master and not Dr. Penrod.



                                              33                                  A-0492-11T4
agreement       or     disagreement       with     defendant's            decision       is

irrelevant.        The question is whether defendant was deprived of

"a    fundamental      constitutional      right       to    a    fair    trial,      which

necessarily includes the right to present witnesses and evidence

in    his    own     defense."       Jenewicz,     supra,         193    N.J.    at    451.

"[N.J.R.E.] 702's           liberal approach favoring admissibility . . .

and    the   substantial      liberty     interest      at       stake   for    defendant

[may] tip the scales in favor of finding error in the trial

court's preclusion of [a defense expert's] testimony."                             Id. at

456.         Here,    the    trial    judge      not    only        overlooked        these

considerations, he barred defendant from presenting evidence in

his    own     defense      based    on   unsupported            assumptions       and    a

misunderstanding of the rules of evidence.

       The law in the          area of witness identification                   is still

developing.        The Supreme Court's decision in State v. Henderson,

208 N.J. 208 (2009),4 is not retroactive, but the evidence that

was wrongfully barred in this case was admissible under our case

law at the time of the trial.             The trial court's rulings barring

testimony of Dr. Penrod should be reversed for the reasons and

with the exceptions set forth above.




4
     Dr. Penrod's testimony before the Special Master and his
published work were quoted at length in the decision, which
focused on eye-witness identification.



                                          34                                     A-0492-11T4
         II. ADMISSION OF TESTIMONY BY STATE'S GANG EXPERT

    The trial judge allowed the State to call Lieutenant Earl

Grave as an expert on gangs.      Lieutenant Graves works for the

Essex County Prosecutor's Office.     Defendant argues that while

Lieutenant Graves' testimony may have been otherwise admissible,

it should have been barred under N.J.R.E. 404(b), which states:

           Except as otherwise provided by Rule 608(b)
           evidence of other crimes, wrongs, or acts is
           not admissible to prove the disposition of a
           person in order to show that such person
           acted   in   conformity   therewith.      Such
           evidence may be admitted for other purposes,
           such   as   proof  of   motive,   opportunity,
           intent,    preparation,    plan,    knowledge,
           identity or absence of mistake or accident
           when such matters are relevant to a material
           issue in dispute.
    It is accepted that even when the jurors are instructed

that prior crimes or bad acts are being admitted into evidence

for reasons other than demonstrating defendant's propensity to

engage   in   criminal   activity,   such   evidence   is   uniquely

prejudicial and inflammatory.   The Supreme Court recognized this

as we acknowledged in State v Hernandez, 334 N.J. Super. 264,

269-70 (2000), aff'd as modified, 170 N.J. 106 (2001):

           Because of the "widespread agreement that
           other-crimes evidence has a unique tendency
           to turn a jury against the defendant . . .
           ," State v. Stevens, 115 N.J. 289, 302
           (1989),    the   compromise   between   the
           antagonistic interests that the Rule seeks
           to effect can be achieved only by the most
           delicate balancing.   As Stevens, supra, at
           303, explains, "[i]t is this inflammatory


                                35                           A-0492-11T4
          characteristic of other-crimes evidence that
          mandates a careful and pragmatic evaluation
          by trial courts, based on the specific
          context in which the evidence is offered, to
          determine whether the probative worth of the
          evidence outweighs its potential for undue
          prejudice."     The tension between undue
          prejudice to the defendant and probative
          value   to  the   State  to  prove   a  fact
          legitimately in issue induced the Supreme
          Court in State v. Cofield, 127 N.J. 328, 338
          (1992), to articulate further the conditions
          of admissibility of other-crimes evidence,
          the Court defining those conditions as
          follows:

                  1. The evidence of the other crime
                  must be admissible as relevant to
                  a material issue;

                  2. It must be similar in kind and
                  reasonably close in time to the
                  offense charged;

                  3. The evidence of the other crime
                  must be clear and convincing; and

                  4. The probative value of the
                  evidence must not be outweighed by
                  its apparent prejudice.

          [(Alteration in original).]

    Defendant argued under the first and last Cofield prongs

the admission of the prosecution's gang expert's testimony in

both trials was error.        Lieutenant Graves' testimony was of

little or no probative value, and had such a strong potential

for prejudice it should have been excluded.

    The   State    argues   the   testimony   by   the   gang   expert   was

admissible as relevant to several material issues in dispute.



                                    36                             A-0492-11T4
      A. "GIRLFRIEND" AS GUN

      Defendant was intercepted on a wiretap telling a man he was

coming by the next day to pick up his "girlfriend."                    The man

testified for the State that he had a gun belonging to defendant

and   the   gun   was   the    "girlfriend."      He    further   testified    he

returned the gun to defendant the day before the murder.                      One

reason the State gave for calling the gang expert was to explain

that on the street, "girlfriend" means gun.              This could have been

explained    without    a     reference   to   gangs.    Instead,   Lieutenant

Graves was asked:

            Prosecutor: In your experience, have blood
            gang members, or gang members in general,
            used coded words to, I guess, hide their
            activities?

            Expert: Absolutely, code words.

                  . . . .

            Prosecutor: How about the weapons? Do they
            use any code words to hide the meaning of a
            handgun or any weapon?

            Expert: Yes.

            Prosecutor: What code words or phrases do
            they use?

            Expert: Girlfriend or wifey.

                  . . . .

            Prosecutor: And what is the purpose of using
            these coded words?




                                      37                             A-0492-11T4
           Expert:   To,  uh,   conceal  it          from    law
           enforcement, or just hide it.

    These references to illegal gang activity were unnecessary

and had limited probative value.        The jury heard the tape.             The

same testimony offered by the expert about slang used for guns

came in from the man who had the gun.          No one on the jury had any

reason to think defendant had left his actual girlfriend with the

man for days and wanted to pick her up.

    B.    USE OF JEEP

    Lieutenant     Graves   testified   that    a   lower    ranking      gang

member had to lend his personal property to a higher ranking

member of the gang:

           Prosecutor: What      about personal property
           within the gang?       How is that shared or
           used?

           Expert: It's shared with other members, and,
           of course, the higher you are up the food
           chain, the hierarchy, the more power you
           would have and influence and use of whatever
           you want, just as – – I'm a captain.    If I
           want something, you know, I'll use something
           one of my – – one of my lieutenants or
           detectives have, I'll just tell them to give
           it to me, order 'em.

    Because the red Jeep that was identified as being driven to

and from the crime by defendant was not owned by defendant, the

State   asserts   the   expert   testimony   was    needed   to    show    why

defendant had use of the Jeep, even though the expert did not

mention the Jeep directly.         However, there was testimony by



                                   38                               A-0492-11T4
other witnesses that defendant was seen driving the Jeep on

other occasions, and that it was owned by a man who let him use

it.   There was no need to show this was because of gang ties.

Additionally, there was testimony that the police had stopped

defendant for traffic violations while in the Jeep.                  There was

no dispute defendant frequently drove the Jeep.                 The gang expert

testimony had little or no probative value because defendant's

use of the Jeep was available and given by other witnesses and

not   even    directly       addressed   by    the    expert.     Under   these

circumstances, the references by the gang expert did little more

than remind the jury defendant was a high ranking gang member.

      C.    OPPORTUNITY

      The victim, who defendant was convicted of robbing in the

first trial and murdering in the second, was the girlfriend of a

man in jail.         The boyfriend and victim were drug dealers.             The

co-defendant testified defendant told him he was going to rob

the victim and it would be easy.              The State established through

testimony that defendant had been to the victims' home before

the murder.      The State claims the gang expert was called to

explain that defendant had the opportunity to gain entry into

the residence.         The State asserts that since defendant was a

higher     ranking    gang   member   than    the    victim's   boyfriend,   the

victim, who was not a gang member, had to admit defendant into




                                         39                            A-0492-11T4
her home.        The gang expert never gave this proffered testimony

and it would have been unnecessary as there was other testimony

defendant     was      allowed       in   the     home        and    knew     the       victim's

boyfriend was in jail.

    D. TATOOS

    Lastly, the State asserts the gang expert's testimony about

gang tattoos had probative value.                       The co-defendant testified

defendant    showed       him   a    tattoo      on     his    neck       after    the       crime,

telling     the     co-defendant          that     he     did       not    need        any     "co-

defendants."        The co-defendant testified he knew defendant was a

gang member after seeing the tattoo.                       He also testified seeing

the tattoo made him nervous because he knew the defendant's gang

was vicious, and he feared for his family's safety.                                         It was

unnecessary, therefore, for the gang expert to explain that gang

members   had      tattoos      to    identify          them    as    part        of    a    gang.

Defendant presented no evidence he was not part of a gang or the

tattoo was not a gang symbol.

    The     gang       expert   testimony        simply        repeated      facts          already

established       by    the   lay    witnesses.           The       probative          value   was

limited     or      non-existent.                The     prejudice,          however,           was

significant because the gang expert testimony was not limited by

the judge to the testimony the State claims was relevant.




                                            40                                           A-0492-11T4
      E. PREJUDICIAL EFFECT

      The error in the admission of expert testimony is that it

included prejudicial testimony of defendant's involvement with

the     "Bloods"     and    specifically     included     Lieutenant     Graves'

history    and     habits    of   the   Bloods.      This   history    included

references to the Bloods' feud with the Crips, which had no

relevance to the crime.            This testimony was followed by the

expert's identification of defendant as a top leader of the

Bloods gang, or as he described it, an original gangster or

founder of the gang.          These gang names are well known, and the

public perception is that people who belong to these groups are

bad people with a propensity to commit crimes.                Even if any of

the jury had not heard of the Bloods before the trial, they knew

about their involvement with law enforcement by the trial's end;

a fact relevant to no material issue in dispute.                     Defendant's

gang membership would have come before the jury, but not with

the same impact as when a member of law enforcement testifies

about     the      gang,    its   history,     its      hierarchy,     and    law

enforcement's prior focus on and encounters with gang members.

      The probative value of the references to defendant's gang

ties were substantially outweighed by its undue prejudice.                    See

N.J.R.E. 403 ("evidence may be excluded if its probative value

is substantially outweighed by the risk of [] undue prejudice").




                                        41                              A-0492-11T4
Gang    references      are   admissible        only    if    N.J.R.E.    404(b)       is

satisfied.          "Other    crimes       evidence      is    considered        highly

prejudicial."       State v. Vallejo, 198 N.J. 122, 133 (2009).                      "The

prejudice of other-crime evidence is its tendency to demonstrate

a criminal predisposition; therefore, it poses a distinct risk

that it will distract a jury from an independent consideration

of the evidence that bears directly on guilt itself."                          State v.

G.S.,    145    N.J.   460,   468    (1996).       An    individual      may    not    be

convicted merely for belonging to an organization that advocates

crime.    Scales v. United States, 367 U.S. 203, 220-21, 81 S. Ct.

1469, 1481-82, 6 L. Ed. 2d 782, 796, reh'g denied. 366 U.S. 978,

81 S. Ct. 1912, 6 L. Ed. 2d 1267 (1961).

                 III. REPLACEMENT OF A DELIBERATING JUROR

       After deliberations commenced in the retrial, two jurors

requested to be excused.            Defendant contends the judge's inquiry

and    conclusory      findings     were   flawed,      and   replacement       of    one

juror,    over    defendant's       objection,     rather      than   declaring         a

mistrial, was error.

       A court's substitution of an alternate juror is limited by

Rule 1:8-2(d)(1), which provides in relevant part:

               Following the drawing of the names of jurors to
               determine the issues, the court may in its
               discretion order that the alternate jurors not be
               discharged, in which event the alternate jurors
               shall be sequestered apart from the other jurors
               and shall be subject to the same orders and



                                           42                                  A-0492-11T4
             instructions of the court, with respect to
             sequestration and other matters, as the other
             jurors.     If the alternate jurors are not
             discharged and if at any time after submission of
             the case to the jury, a juror dies or is
             discharged by the court because of illness or
             other inability to continue, the court may direct
             the clerk to draw the name of an alternate juror
             to take the place of the juror who is deceased or
             discharged.    When such a substitution of an
             alternate juror is made, the court shall instruct
             the jury to recommence deliberations and shall
             give    the   jury    such   other   supplemental
             instructions as may be appropriate.

      We     review   a   trial      court's      decision     to    substitute      an

alternate juror for an abuse of discretion.                    State v. Musa, 222

N.J. 554, 564-65 (2015).          We are guided by certain principles in

applying this standard; Rule 1:8-2(d)(1) "delicately balances

two important goals:          judicial economy and the right to a fair

jury trial."      State v. Jenkins, 182 N.J. 112, 124 (2004).                       The

Supreme Court has explained that juror substitution should only

be invoked as a last resort because it "poses a clear potential

for   prejudicing      the    integrity      of    the   deliberation      process."

State v. Hightower, 146 N.J. 239, 254 (1996).                         With this in

mind, "[t]he court must be prepared to declare a mistrial if a

substitution would imperil the integrity of the jury's process."

State   v.    Ross,    218    N.J.    130,    147    (2014).         In   making    its

decision,     "the    trial   court    must       determine    the    cause   of    the

juror's concern and assess the impact of the juror's departure

on the deliberative process."                Ibid.       Additionally, the court



                                         43                                   A-0492-11T4
"must   ascertain      whether        a     reconstituted          jury        will    be     in    a

position to conduct open-minded and fair deliberations."                                   Ibid.

      Here, the trial judge was confronted with the difficult

task of learning the source of the juror's distress without

asking a question that might elicit information about the jury's

deliberations.       To avoid such disclosure, "[j]udges must caution

a juror at the outset of the colloquy that she must not reveal

the way in which any juror plans to vote, or the vote tally on a

verdict."     Jenkins, supra, 182 N.J. at 134.

      The Supreme Court has "restrictively interpreted the phrase

'inability     to    continue'         in     Rule        1:8-2(d)(1)          to     protect       a

defendant's     right      to     a    fair        jury     trial,    forbidding              juror

substitution when a deliberating juror's removal is in any way

related to the deliberative process."                       Jenkins, supra, 182 N.J.

at   124.     "A    deliberating            juror    may     not     be     discharged           and

replaced     with    an     alternate            unless     the     record           'adequately

establish[es]       that    the       juror      suffers      from     an       inability          to

function     that    is     personal          and     unrelated           to     the       juror's

interaction    with       the   other        jury    members.'"                Id.    at    124-25

(quoting Hightower, supra, 146 N.J. at 254).

      In    Jenkins,      the   Supreme          Court      strongly       emphasized            the

importance     of   not     removing         a     juror     because       of        inter-juror

conflict:




                                              44                                           A-0492-11T4
         A juror cannot be removed merely because she is
         taking a position at odds with other juror's
         views. A juror has the unassailable right to see
         the evidence in her own way and to reach her own
         conclusions, regardless of how overwhelming the
         evidence or how illogical her view may appear to
         other jurors.    "If a court suspects that the
         problems with the juror are due to interactions
         with other jurors, the court should instruct the
         jury to resume deliberations."

         [Id. at 125 (citations omitted).]

    We review what the judge did in this case in light of the

controlling law.    Here, jurors two and six asked to be excused

via a note sent to the court.     The judge interviewed juror two

who was described as clearly upset and emotional.      The judge

described the juror's voice as cracking.

    The judge first told juror two she could not discuss the

deliberations.     This was appropriate, but the interview itself

was extremely short consisting of only three questions to which

the juror gave conflicting answers.   Most importantly, the juror

was never asked to explain her reason for being upset.          The

judge was required to ascertain why the juror was upset and

asking to be removed from the jury.   He never achieved this goal

and made very little effort to get the information he needed.

His finding she was upset and emotional is undoubtedly true.

However, if her reasons for being upset were personal, she could

be removed and replaced, but if she was upset because of how

deliberations were going or because of interactions with other



                                 45                       A-0492-11T4
jurors during deliberations, she either had to continue or the

court was obligated to declare a mistrial.               That decision could

not be made without information about the cause of her distress.

    The colloquy between the court and the juror follows:

         THE COURT: Do you feel that there is
         emotionally an inability for you to proceed
         and perform your duties as a deliberating
         juror?

         THE JUROR: Yes.

         THE COURT: Do you feel that these emotions
         that you have, again, would impact upon your
         ability to perform your function in this
         case?

         THE JUROR: No. I know it's not balanced in
         what I'm saying, but there's [sic] reasons
         why I can't speak without giving away —

         THE COURT: I don't want you to talk about
         that.   But emotionally, you feel you can't
         continue?

         THE JUROR:     Correct.

         THE COURT:  I'm going to leave it at that
         for now. Thank you.

    It is difficult to reconcile that limited exchange with the

majority's    conclusion      that   "the        trial   judge   sought      the

explanation for juror two's request to be excused."                 Ante at 55.

The judge appears to have avoided eliciting an explanation that

could require a mistrial, at the cost of wrongfully replacing a

juror.   The juror never said she could not be fair to both

sides.   In   her   limited    response     to    question   two,    the   juror



                                     46                                A-0492-11T4
denied that was the situation, but was prevented from giving an

explanation.         She agreed in response to question one and three

that she did not feel she could continue with the deliberations

but gave no explanation as to why.

    The majority opinion states:

              He [defendant] additionally infers from
              juror two's comments she was at odds with
              other jurors, a circumstance not justifying
              excusal.   See []Jenkins, [supra,] 182 N.J.
              [at] 124-25 [] (holding excusing a juror
              cannot be based on juror interaction with
              other jurors).   We cannot agree the juror's
              comments revealed she faced hostility from
              fellow jurors . . . .

              [Ante at 54-55.]

    We do not know, based on this record, if the juror was

upset because she was at odds with other jurors since the juror

was never given the opportunity to reveal the reason for her

distress.      Moreover, her assertion that "there's [sic] reasons

why I can't speak without giving away –" does reasonably imply

that she needs to discuss her emotional state in the context of

something relating to jury deliberations, which was the only

thing   she    was    instructed    not    to   mention.         The    trial   judge

discharged     juror     two   on   a   record    that     did    not    adequately

establish her inability to function.

    The trial court's inquiry was insufficient to determine the

cause of the juror's unwillingness to continue deliberations.




                                          47                                A-0492-11T4
The juror started a statement that gave the trial court reason

to suspect the juror's problem was due to interactions with

other jurors, but he stopped her before she could complete her

answer.      Even   if    there       is   some     other    way    to    interpret       the

juror's     statement,         the    trial        record    does       not    adequately

establish    the    juror      suffered       from    an     inability        to    function

personal to her and unrelated to her interaction with other jury

members.

      Although it is clear the trial court's effort was designed

to preserve the verdict and "avoid the deplorable waste of time,

effort, money, and judicial resources inherent in a mistrial,"

Hightower, supra, 146 N.J. at 254, the cause of juror two's

emotional    distress         could    have        been    attributable        to     either

personal problems or her interaction with other jurors.                                   The

record does not adequately establish the cause. For that reason,

it   is   necessary      to    conclude      the     trial    court      misapplied       its

discretion by replacing juror number two.5

                                            IV.

      Our Supreme Court has explained the doctrine of cumulative

error:    "the   rule     is    that       where    any     one    of    several      errors


5
   The judge could have simply sent the jury home for the day to
allow the juror to calm down or could have asked whether her
reasons were related to other juror's interactions with her,
after telling her to limit her initial response to yes or no.



                                             48                                     A-0492-11T4
assigned    would    not    in    itself      be    sufficient    to    warrant     a

reversal,     yet    if    all   of    them    taken    together       justify    the

conclusion that defendant was not accorded a fair trial, it

becomes the duty of this court to reverse."                   State v. Orecchio,

16 N.J. 125, 134 (1954) (quoting State v. Dolliver, 184 N.W. 849

(Minn. 1921)).        Here, the trial court excluded relevant and

potentially    exculpatory       testimony,        admitted   mostly     irrelevant

testimony    about    gangs,     and   improperly      excused   a     deliberating

juror.     In my view, each of these errors deprived defendant of a

fair trial.     Their cumulative effect clearly did so.                    For the

reasons set forth above, I would reverse the convictions in both

trials and remand for a new trial on all remaining charges.




                                        49                                 A-0492-11T4
