               NOT FOR PUBLICATION WITHOUT THE
              APPROVAL OF THE APPELLATE DIVISION

                                  SUPERIOR COURT OF NEW JERSEY
                                  APPELLATE DIVISION
                                  DOCKET NO. A-5096-14T1

STATE OF NEW JERSEY,

     Plaintiff-Respondent,

v.

OLAJUWAN HERBERT,

     Defendant-Appellant.
_____________________________

          Argued February 12, 2018 – Decided January 10, 2019

          Before Judges Sabatino, Ostrer and Whipple (Judge
          Ostrer concurring).

          On appeal from Superior Court of New Jersey, Law
          Division, Essex County, Indictment No. 12-11-2693.

          James K. Smith, Jr., Assistant Deputy Public
          Defender, argued the cause for appellant (Joseph E.
          Krakora, Public Defender, attorney; Mark H.
          Friedman, Assistant Deputy Public Defender, of
          counsel and on the brief).

          Lucille M. Rosano, Special Deputy Attorney
          General/Acting Assistant Prosecutor, argued the cause
          for respondent (Robert D. Laurino, Acting Essex
          County Prosecutor, attorney; Lucille M. Rosano, of
          counsel and on the brief).

          Appellant filed a pro se supplemental brief.
      The opinion of the court was delivered by

OSTRER, J.A.D.

      Convicted of purposeful murder and related firearms offenses, defendant

Olajuwan Herbert principally contends his trial was irremediably tainted by a

detective's reference to defendant's alleged gang membership, and by

eyewitnesses' statements that they had been afraid to testify or identify

themselves. The court sustained defendant's objection to the comment about

gang membership, but denied his motion for a mistrial. The court held it cured

any resulting prejudice by instructing the jury that there was no information in

the case about gang involvement and that the jury should disregard the

statement.   The court overruled defense objections to the eyewitnesses'

continued use of pseudonyms and references to fear of testifying, relying on its

instruction to the jury that the use of pseudonyms was simply a matter of

police procedure and the witnesses' desire for privacy.

      We conclude a new trial is required because the court's instructions were

inadequate to cure the prejudice caused by the gang reference. We therefore

do not reach the issue of the eyewitnesses' repeated reference to pseudonyms

and expressions of fear.




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                                       2
                                       I.

      Harold Claudio was shot to death in an alley off Thomas Street in

Newark. The alley runs between a school on one side and a playground and

two basketball courts on the other. The homicide occurred on June 9, 2012, at

around 8:30 p.m. The principal witnesses at the trial were an investigating

detective, Tyrone Crawley, and two eyewitnesses, Lizaire Arce, a cousin of the

victim, and Jessica Maldonado, who happened to be in the area but knew

neither the victim nor defendant.

      Arce testified that the previous week, she saw Alberto Torres, a cousin

of hers and the victim's, fight with defendant at the playground. Torres got the

better of defendant, and Arce overheard her cousin call defendant by the

nickname "Gunner" 1 as he chased him from the playground. It was the first

time Arce had ever seen defendant.

      Arce said the next time she saw defendant, shortly before the murder, he

entered the playground area with Claudio and two other men she did not know.

Although it was around 8:30 p.m., Arce said it was bright out. She claimed

she could identify defendant, although, as the parties later stipulated, she was

1
    The defense did not register an objection to use of that nickname,
notwithstanding that defendant was accused of gunning down the victim. See
State v. Paduani, 307 N.J. Super. 134, 147 (App. Div. 1998) (stating that
pejorative nicknames, such as "Marijuana" or "Trouble," should be kept from a
jury unless relevant for some purpose).


                                                                        A-5096-14T1
                                       3
sitting 107 feet, 11 inches from the place of the murder.        Also, several

teenagers were playing ball on the basketball court in front of her, and chain-

link fences stood between her and defendant. She testified that she observed

defendant raise his left arm while stepping closer to Claudio, then heard three

gunshots, although she did not actually see a gun in defendant's hand. Arce

testified that she saw defendant and the two others run out of the playground,

across Pennsylvania Avenue, and up the block to Brunswick Avenue, where

defendant entered the rear seat of a 1993 or 1994 blue Honda Accord with a

silver sunroof.

      Arce went to her cousin's side and saw that a bullet had struck the back

of his head. Concluding he was "done," she left the area without calling 911.

She spent time with a boyfriend and then a female friend but did not speak to

police because, she said, she feared for herself and her family. However, she

spoke to the police two days later, after her aunt, Claudio's mother, asked her

to do so. Arce identified defendant from a photo array, and later identified

him in court, as well.

      Arce signed defendant's photo as "Jane Doe" and initialed the others she

viewed "J.D." At trial, she testified she did so for "her safety." The defense

objected, contending there was no evidence that defendant did anything to

cause her to be fearful, and asked for an instruction to that effect. The court



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                                      4
denied the request. Apparently referring to Arce's reasons for her two -day

delay in speaking to police, as opposed to her reason for signing the photos as

Jane Doe, the court said the State was entitled to explain why Arce "didn't do

certain things" before the defense raised the matter on cross-examination.

      Throughout the trial, the prosecutor and Detective Crawley, the State's

key law enforcement witness, repeatedly referred to Arce as Jane Doe. The

officer who presented the photo array to Arce also said he knew her only as

Jane Doe. He testified, without an immediate objection, that he was informed

she used the pseudonym to avoid identification and "retaliation." 2

      As the defense elicited, Arce testified inconsistently about the lighting

conditions at the crime scene; the distance from which she observed defendant;

and the presence of other persons in the area. Based on these inconsistencies,

the defense challenged Arce's ability to accurately identify faces, and to

observe defendant's alleged flight in a vehicle parked over a block away.

      The other eyewitness, Jessica Maldonado, testified that she heard what

sounded like fireworks after she parked on Thomas Street. She was on her

2
   Defense counsel later asked for a curative instruction that defendant never
threatened retaliation, but the court noted that defense counsel had not timely
objected. Defense counsel responded that she did not want to highlight the
issue again, particularly in light of the court's refusal to provide an instruction
on the topic during Arce's own testimony. The court asked defense counsel to
submit a written instruction for its consideration, but counsel apparently did
not pursue the matter further.


                                                                          A-5096-14T1
                                        5
way to a baby shower at the church across the street, at the corner of Thomas

Street and Pennsylvania Avenue. A passerby told her he thought the sound

was gunshots. She grabbed her three-year-old daughter out of the car and

headed down the block. On the other side of the street, Maldonado saw a

group of four or five men running in the opposite direction, accompanied by a

man on a bicycle. For a second, she made eye contact with one man as he

turned to look back. He was holding his pants and shirt to cover an object.

She could not see it, but it had the shape of a gun.

      Three days later, she selected defendant's photo from a photo array,

signing the photo as "Jane Doe 2." At trial, the court overruled the defense's

objection to any mention of Maldonado's use of the pseudonym, but prevented

Maldonado from explaining why she used it. The State repeatedly referred to

her as Jane Doe 2 thereafter.          Maldonado did not make an in-court

identification.

      The defense elicited inconsistencies between Arce's and Maldonado's

testimony. Arce alleged that a light-skinned man almost six feet tall with

shoulder-length, orange-tipped dreadlocks accompanied defendant; yet,

Maldonado saw no such person, testifying that all the men running from the

scene had short hair and brown skin. Arce said defendant wore light-blue

capri pants, a red-and-white shirt, and Air Force sneakers. Maldonado testified



                                                                       A-5096-14T1
                                        6
that defendant wore baggy, regular-length blue jeans and a white or gray tee-

shirt.     Arce said there were no cars parked on Thomas Street between

Pennsylvania Avenue and Brunswick Avenue, which gave her an unobstructed

view of defendant's flight.     She did not see a woman with a child.       Yet,

Maldonado testified that it was difficult to find parking near the church, cars

were parked on both sides of the street, and she was on the sidewalk with her

child when the men fled past her. Arce said the four men all fled on foot.

Maldonado said there was at least one man on a bicycle.

         Maldonado's out-of-court identification was also challenged.        She

admitted that she found the identification procedure "hard"; the men in two

other photos also looked "similar" to the man she had seen; and she selected

defendant's photo only after the officer told her, in response to her question,

that she had to pick just one photo. She testified that she ultimately picked

defendant's photo because it depicted him with facial hair; however, in her

2012 statement to Detective Crawley, she said she could not tell if the man she

saw had facial hair because it was getting dark and she was not wearing her

glasses.

         Detective Crawley testified that when defendant was taken into custody,

he was wearing sneakers that fit Arce's description. However, there was no

blood or other forensic evidence tying the sneakers to the homicide.



                                                                        A-5096-14T1
                                         7
Subsequent searches of defendant's residence and cellphones were fruitless.

The weapon was not recovered, and video surveillance in the vicinity was

unilluminating.

      Crawley also admitted at trial that he had received information that

someone else was responsible for the shooting.           Torres, Arce's cousin,

reportedly told the detective that someone named Bibble had bragged he

committed the murder. But, because the State was unable to secure Torres's

presence at trial, the court barred any reference to Torres's statement on

hearsay grounds.

      Also, before trial, a different judge, relying on State v. Goodman, 415

N.J. Super. 210 (App. Div. 2010), had permitted Torres to testify that

Claudio's murder arose from a gang conflict. But, with Torres absent, gang

references were barred.

      Yet, despite the court's order, Crawley injected the subject of gangs

twice.3 The first time, on direct examination, he was asked why he did not

speak to the teenagers who were playing in the basketball court, though Arce

had identified several of them by name. He answered it was a "high-crime,

drug, gang area, and the people that live in that area are in fear of the police."

3
   The prosecutor later said that Crawley's references to gangs were "totally
inappropriate," and that "the State had gone out of its way to prep every
witness not to go into any gang information."


                                                                         A-5096-14T1
                                        8
The court sustained the defense's objection, denied a mistrial request, and

instructed the jury to disregard the statement, which was complete "speculation

and conjecture on [the detective's] part" as he had no information "as to why

anyone didn't come forward, or if there were any people that could come

forward." The judge did not address the statement that the crime occurred in a

"gang area."

      The second time, on redirect, the prosecutor asked Detective Crawley if

Arce had explained how she was able to identify defendant.           The court

overruled a hearsay-based objection from the defense. Then, the detective

stated, referring to the alleged previous altercation between defendant and

Torres, "Yes, she told me, approximately a week ago, Gunner, who is a gang

member . . . ."

      The court denied another defense request for a mistrial. Instead, in a

curative instruction, the judge directed the jury to disregard the detective's

answer. The judge asserted there was "no information" in the case that gangs

were involved – without directly addressing the detective's assertion about

defendant in particular. In the same instruction, the judge decided to issue a

limiting instruction regarding the eyewitnesses' use of pseudonyms, asserting

both that the witnesses wanted to shield their identity and that it was merely a

matter of police procedure.



                                                                        A-5096-14T1
                                       9
The judge stated:

            Ladies and Gentlemen, our function here -- I
      mean your function -- is to determine the guilt or
      innocence of Mr. Herbert fairly and impartially based
      upon the evidence.

            Sometimes during the course of the trial,
      information comes to the attention of the jury and it
      has no place in this trial. In other words, it's
      prejudicial. As I told you from the beginning, fair and
      impartial means not being prejudicial; it means fair.

            Now, Detective Crawley mentioned gangs a few
      minutes ago, unintentionally. I tell you now there's no
      information in this case whatsoever there's any gangs
      involved in this case whatsoever.              Nothing
      whatsoever. You've heard nothing beforehand, you've
      heard nothing now, and that statement by Detective
      Crawley obviously was unintentional, number one.

             Number two, I want to bring you to the -- to
      your attention again -- maybe I should have said this is
      before -- you know, the two witnesses we're [sic]
      giving [sic] John [sic] Doe 1 and John [sic] Doe 2; all
      right? There's no rationale for that other than the fact
      that they wanted to keep their identity private. All
      right?

            You should not conclude, because they had Jane
      Doe 1, and Jane Doe 2, that carries any kind of
      implication whatsoever. It does not; all right?

             So the gang situation, the John [sic] Doe
      situations are routine, -- the Jane Doe situation is
      routine police work repeatedly in these kind of cases,
      it's just done that way, and you can't consider that
      whatsoever. So you can't consider that, and you can't
      consider the gang situation.



                                                                 A-5096-14T1
                                10
                   I'm going to read you again what I read to you
            before. I direct that you not use this stricken
            testimony in your deliberations. By my striking the
            answer and directing that you disregard and not use
            this information, I'm not asking you to forget it. To
            the contrary, I'm asking that you remember what was
            stricken and understand that if, during your
            deliberations, you realize that the information is
            necessary to your decision, you may not use it.

                  Okay? Are we on the right page?

                  JURORS: Yes.

            [(Emphasis added).]

      In cross-examination of Crawley, the defense had pointed out

inconsistencies between the testimony of Arce and Maldonado, suggesting that

Crawley should have conducted a more thorough investigation. On redirect,

the prosecutor was permitted to elicit why those inconsistencies did not deter

him from seeking an arrest warrant. For example, regarding the inconsistent

clothing descriptions, Crawley was permitted to offer his opinion that

Maldonado was more focused on her child, while Arce was "affixed to"

defendant, because of the previous incident.

      Defendant did not testify or call witnesses on his behalf. In summation,

defense counsel responded to the eyewitnesses' use of pseudonyms, noting

there was no evidence that defendant threatened or intimidated them. The

defense also highlighted inconsistencies in the eyewitnesses' identifications.



                                                                      A-5096-14T1
                                      11
The State, in its summation, minimized those inconsistencies, and suggested

that defendant's motive was to retaliate for the incident the week earlier,

although defendant's assailant was Torres and not the victim.

      The jury found defendant guilty of first-degree murder, N.J.S.A. 2C:11-

3(a)(1), (2); second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-

5(b)(1); and second-degree possession of a firearm for an unlawful purpose,

N.J.S.A. 2C:39-5(a). The court sentenced defendant to life imprisonment on

the murder conviction, subject to the No Early Release Act, N.J.S.A. 2C:43-

7.2, and a concurrent five-year term, subject to the Graves Act, N.J.S.A.

2C:43-6(c), on the conviction for unlawful possession of a handgun.       The

remaining charge was merged.

                                      II.

      In his counseled brief, defendant raises the following points for our

consideration:

            POINT I

            DEFENDANT WAS DENIED A FAIR TRIAL AND
            DUE PROCESS OF LAW WHEN DETECTIVE
            CRAWLEY IMPROPERLY TOLD THE JURY THAT
            "GUNNER [DEFENDANT] IS A GANG MEMBER"
            AND THE TRIAL COURT DENIED DEFENDANT'S
            MOTION FOR A MISTRIAL.




                                                                     A-5096-14T1
                                      12
            POINT II

            THE TRIAL COURT COMMITTED REVERSIBLE
            ERROR BY ALLOWING DETECTIVE CRAWLEY
            TO TESTIFY AS TO WHY HE OBTAINED AN
            ARREST     WARRANT      DESPITE    THE
            INCONSISTENCIES   BETWEEN    THE  TWO
            IDENTIFICATION WITNESSES REGARDING THE
            DESCRIPTIONS OF THE CLOTHING WORN BY
            THE SUSPECT.

            POINT III

            DEFENDANT'S SENTENCE IS MANIFESTLY
            EXCESSIVE AND UNDULY PUNITIVE.

In a supplemental pro se brief, defendant argues:

            POINT I

            DEFENDANT'S    STATE      AND FEDERAL
            CONSTITUTIONAL RIGHTS TO A FAIR TRIAL
            BY AN IMPARTIAL JURY AND DUE PROCESS
            OF LAW WERE VIOLATED WHEN THE
            PROSECUTOR ENGAGED IN A CONVERSATION
            WITH ONE OF THE JUROR[]S.

            POINT II

            THE TRIAL COURT ERRED IN ADMITTING
            DETECTIVE CRAWLEY'S TESTIMONY AS TO
            WHY HE OBTAINED AN ARREST WARRANT
            DESPITE THE INCONSISTENCIES BETWEEN
            THE TWO I[]DENTIFICATION WITNESSES
            REGARDING THE DESCRIPTIONS OF THE
            CLOTHING       WORN         BY     THE      SUSPECT
            (Supplemented to Point II of Primary Brief).




                                                                  A-5096-14T1
                                      13
POINT III

THE IDENTIFICATION PROCEDURES USED BY
THE    POLICE    WERE     IMPERMISSIBLY
SUGGESTIVE LEADING TO A SUBSTANTIAL
LIKELIHOOD OF MISIDENTIFICATION.

POINT IV

TRIAL COURT COMMITTED REVERSIBLE
ERROR BY ALLOWING THE PROSECUTION TO
INTRODUCE    EVIDENCE   VIA   IMPROPER
IDENTIFICATION PROCEDURE THAT DEPRIVED
DEFENDANT SUBSTANTIVE DUE PROCESS OF
LAW AND RIGHT TO A FAIR TRIAL (Not Raised
Below).

POINT V

THE TRIAL COURT'S CHARGE ON THE ISSUE
OF      IDENTIFICATION WAS    FLAWED,
THEREFORE VIOLATING DEFENDANT'S STATE
AND FEDERAL CONSTITUTIONAL RIGHTS (Not
Raised Below).

POINT VI

THE TRIAL COURT ERRED IN DENYING
DEFENDANT A NEW TRIAL ON THE GROUNDS
THAT THE VERDICT WAS AGAINST THE
WEIGHT OF THE EVIDENCE.

POINT VII

THE TRIAL COURT'S FAILURE TO CHARGE THE
JURY ON THE LESSER-INCLUDED OFFENSES
OF ASSAULT DEPRIVED DEFENDANT OF DUE
PROCESS AND HIS RIGHT TO A FAIR TRIAL.
U.S. CONST. AMEND. VI, XIV, N.J. CONST. ART.
I, ¶ 1, 10 (Not Raised Below).

                                               A-5096-14T1
                     14
                                        III.

                                        A.

      The Court in State v. Winter, 96 N.J. 640, 646-47 (1984), addressed the

specific issue posed here – "whether inadmissible evidence is of such a nature

as to be susceptible of being cured by a cautionary or limiting instruction, or

instead requires the more severe response of a mistrial." The Court held the

decision "is one that is peculiarly within the competence of the trial judge, who

has the feel of the case and is best equipped to gauge the effect of a prejudicial

comment on the jury in the overall setting." Id. at 647. Consequently, "[a]

motion for a mistrial is addressed to the sound discretion of the [trial] court;

and the denial of the motion is reviewable only for an abuse of discretion."

Ibid. (quoting State v. Witte, 13 N.J. 598, 611 (1953)); see also State v.

Yough, 208 N.J. 385, 397 (2011) (stating that whether a curative instruction

can neutralize a prejudicial remark is within the trial court's competence);

State v. Harvey, 151 N.J. 117, 205 (1997) (stating an appellate court must find

"an abuse of discretion that results in a manifest injustice" to overturn a trial

court's mistrial ruling).

      The same deferential standard that applies to the mistrial-or-no-mistrial

decision applies to review of the curative instruction itself. Winter, 96 N.J. at

647. In particular, a trial court is in the best position to assess the impact of an



                                                                           A-5096-14T1
                                        15
evidentiary ruling. See Crawn v. Campo, 136 N.J. 494, 512 (1994) (stating

that "[d]eference should be accorded to the trial court's conclusion concerning

the prejudice attributable to the" trial court's rulings and "the extent to which

that prejudice contributed to an unjust result").

                                        B.

      There is tension in our case law governing curative and limiting

instructions.   The authority is abundant that courts presume juries follow

instructions. For example, in State v. Loftin, 146 N.J. 295, 390 (1996), the

Court stated, "That the jury will follow the instructions given is presumed."

The presumption is founded in part on necessity. "[T]he courts must rely upon

the jurors' ability and willingness to follow the limiting instruction without

cavil or question." State v. Manley, 54 N.J. 259, 270 (1969). The presumption

is "[o]ne of the foundations of our jury system." State v. Burns, 192 N.J. 312,

335 (2007).

      Yet, some view the presumption skeptically. As Justice Jackson stated,

"The naive assumption that prejudicial effects can be overcome by instructions

to the jury . . . all practicing lawyers know to be unmitigated fiction."

Krulewitch v. United States, 336 U.S. 440, 453 (1949) (Jackson, J.,

concurring). Noting, if not adopting, that skeptical view, our Supreme Court

has found, "There are undoubtedly situations in which notwithstanding the



                                                                         A-5096-14T1
                                        16
most exemplary charge, a juror will find it impossible to disregard such a

prejudicial statement."    State v. Boone, 66 N.J. 38, 48 (1974) (citing

Krulewitch, 336 U.S. at 453). For example, the Court found that a limiting

instruction could never cure the prejudicial effect from the admission of a

defendant's prior but withdrawn guilty plea. Id. at 50.

      The United States Supreme Court reached the same conclusion regarding

the admission of a co-conspirator's confession that implicates a defendant.

"[T]here are some contexts in which the risk that the jury will not, or cannot,

follow instructions is so great, and the consequences of failure so vital to the

defendant, that the practical and human limitations of the jury system cannot

be ignored." Bruton v. United States, 391 U.S. 123, 135 (1968).

      Without delving into the many empirical studies on jury behavior, we

believe that jury compliance with curative and limiting instructions is neither

all truth nor all fiction. The answer is somewhere in between. See David A.

Sklansky, Evidentiary Instructions and the Jury as Other, 65 Stan. L. Rev. 407,

423-39 (2013) (Evidentiary Instructions) (analyzing various empirical studies).

As Professor Sklansky has noted, "The reality is . . . that evidentiary

instructions probably do work, but imperfectly, and better under some

conditions than others." Id. at 409.




                                                                        A-5096-14T1
                                       17
      The decision to opt for a curative or limiting instruction, instead of a

mistrial or new trial, depends on at least three factors. First, a court should

consider the nature of the inadmissible evidence the jury heard, and its

prejudicial effect. "The adequacy of a curative instruction necessarily focuses

on the capacity of the offending evidence to lead to a verdict that could not

otherwise be justly reached." Winter, 96 N.J. at 647. Additionally, while a

general charge may suffice to cure "only slightly improper" remarks, "a single

curative instruction may not be sufficient to cure the prejudice resulting from

cumulative errors at trial." State v. Vallejo, 198 N.J. 122, 136 (2009) (quoting

State v. Frost, 158 N.J. 76, 86-87 (1999)).

      Evidence that bears directly on the ultimate issue before the jury may be

less suitable to curative or limiting instructions than evidence that is indirect

and that requires additional logical linkages.     For example, distinguishi ng

between a co-conspirator's confession that directly implicates a defendant and

a confession that only inferentially does so, the United States Supreme Court

noted that "[s]pecific testimony that 'the defendant helped me commit the

crime' is more vivid than inferential incrimination, and hence more difficult to

thrust out of mind."     Richardson v. Marsh, 481 U.S. 200, 208 (1987).

Consequently, "with regard to inferential incrimination[,] the judge's

instruction may well be successful in dissuading the jury from entering onto



                                                                         A-5096-14T1
                                       18
the path of inference in the first place, so that there is no incrimination to

forget." Ibid. Likewise, in Harvey, 151 N.J. at 205-06, the Court held that a

curative instruction was sufficient to avoid a mistrial where the stricken

testimony pertained to polygraph results of an earlier suspect, and there was

substantial evidence to eliminate that suspect, rendering the prejudice to

defendant "minimal." The Court emphasized that the evidence that the earlier

suspect passed a polygraph did not directly prove defendant's guilt. Id. at 205.

      Second, an instruction's timing and substance affect its likelihood of

success. As for timing, our Court has held that a swift and firm instruction is

better than a delayed one. Winter, 96 N.J. at 648 (noting the importance of an

immediate and firm instruction to disregard an offending remark); see also

Vallejo, 198 N.J. at 134-35 (citing cases finding effective curative

instructions). Delay may allow prejudicial evidence to become cemented into

a storyline the jurors create in their minds during the course of the trial. See

Evidentiary Instructions at 422 n.52; see also id. at 451 (stating "[t]he timing

. . . of instructions [is] likely to matter"). That is why our Supreme Court has

stated – in the context of admitting evidence of other crimes under N.J.R.E.

404(b) – it is the "better practice" to give limiting instructions at the time the

evidence is presented and again in the final jury charge. State v. Blakney, 189

N.J. 88, 93 (2006). It is thought that repeating the instruction prevents the



                                                                         A-5096-14T1
                                       19
jurors from "indelibly brand[ing] the defendant as a bad person" and blinding

them from careful consideration of all the evidence in deliberations. Ibid.

      As for substance, a specific and explanatory instruction is often more

effective than a general, conclusory one. The "Court has consistently stressed

the importance of . . . specificity when trial judges provide curative

instructions to alleviate potential prejudice to a defendant from inadmissible

evidence that has seeped into a trial." Vallejo, 198 N.J. at 135. "[B]ecause

'the inherently prejudicial nature of [404(b)] evidence casts doubt on a jury's

ability to follow even the most precise limiting instruction,' the court's

instruction 'should be formulated carefully to explain precisely the permitted

and prohibited purposes of the evidence . . . .'" State v. Fortin, 162 N.J. 517,

534 (2000) (quoting State v. Stevens, 115 N.J. 289, 309, 304 (1989)); see also

State v. Cofield, 127 N.J. 328, 341 (1992).

      An instruction also can be more effective when it explains itself.

"Because I said so" is likely to be even less effective from a judge to a jury

than it is from a parent to an eight-year-old. See Evidentiary Instructions at

439 (stating, based on a review of empirical research, that instructions "work

better when the judge gives the jury a reason to follow them"); id. at 452

(noting, subject to exception, that "[o]n the whole, mock jury studies do




                                                                        A-5096-14T1
                                       20
suggest that evidentiary instructions are more apt to be followed if the judge

explains the reason for the underlying rule"). 4

      Although trial judges may understandably try to avoid repeating and

thereby reinforcing an offending remark, a court must describe it with enough

specificity to enable the jury to follow the instruction. The instruction must be

"clear enough [and] sharp enough to achieve its goal." Vallejo, 198 N.J. at

136-37 (holding that an "instruction did not fulfill its purpose" where judge

referred too generally to "things . . . blurted out that have nothing to do with

this case").

      Third, a court must ultimately consider its tolerance for the risk of

imperfect compliance.        See Bruton, 391 U.S. at 135 (referring to

"consequences of failure so vital to" a criminal defendant).       Yet, even in

criminal cases involving errors of constitutional dimension, "not 'any'


4
  Some of our evidence rules, such as those pertaining to hearsay, are designed
to exclude inherently unreliable evidence. N.J.R.E. 802; State v. White, 158
N.J. 230, 238 (1999). Others, such as privileges, exclude probative evidence
in service of other policy goals. See State v. Briley, 53 N.J. 498, 505-06
(1969). This difference may affect compliance with a curative instruction. For
example, a judge could explain in detail why our system excludes an
incriminatory patient-to-physician statement – to encourage candor and protect
privacy in the health-care relationship. See Snyder v. Mekhjian, 125 N.J. 328,
337 (1991). However, inasmuch as that explanation does not pertain to the
evidence's probative value, it may be less successful in persuading a jury to
disregard it, than, say, an explanation as to why a hearsay statement is
inherently unreliable and should be disregarded.


                                                                         A-5096-14T1
                                        21
possibility [of an unjust result] can be enough for a rerun of the trial." Winter,

96 N.J. at 647 (quoting State v. Macon, 57 N.J. 325, 336 (1971)).            "The

possibility must be real, one sufficient to raise a reasonable doubt as to

whether the error led the jury to a result it otherwise might not have reached."

Ibid. (quoting Macon, 57 N.J. at 336). By contrast, a non-constitutional error

"shall be disregarded by the appellate court 'unless it is of a nature as to have

been clearly capable of producing an unjust result.'" Id. at 648 (quoting State

v. LaPorte, 62 N.J. 312, 318-19 (1973)).

      The United States Supreme Court has required an "overwhelming

probability" that the jury cannot comply, in order to conclude a curative

instruction was inadequate. Greer v. Miller, 483 U.S. 756, 766 n.8 (1987)

("We normally presume that a jury will follow an instruction to disregard

inadmissible evidence inadvertently presented to it, unless there is an

'overwhelming probability' that the jury will be unable to follow the court's

instructions, and a strong likelihood that the effect of the evidence would be

'devastating' to the defendant." (citing Richardson, 481 U.S. at 208; then citing

Bruton, 391 U.S. at 136)). We note that our own Supreme Court has not

expressly adopted the "overwhelming probability" standard.




                                                                         A-5096-14T1
                                       22
                                        C.

      Applying these principles, we are constrained to conclude that the court's

instructions did not cure the prejudicial impact of the detective's inadmissible

statements that defendant was a gang member and the homicide occurred in a

gang area.    We reach this conclusion in large part because the judge's

instructions missed the mark. It is one thing to assume jury compliance with a

well-crafted curative or limiting instruction.     It is quite another to assume

compliance with an instruction that fails to clearly and sharply address the

prejudicial aspect of the inadmissible evidence. An instruction can be curative

only if the judicial medicine suits the ailment.

      The detective's gang references were prejudicial.       They may not be

minimized as "fleeting comments" that likely escaped the jury's notice. Cf.

Jackowitz v. Lang, 408 N.J. Super. 495, 505 (App. Div. 2009) ("Fleeting

comments, even if improper, may not warrant a new trial, particularly when

the verdict is fair."). Each time the detective referred to gangs, the trial came

to an abrupt halt. The second time, when the detective called defendant a gang

member, the jury gasped, according to defense counsel at sidebar.            The

assistant prosecutor contended the gasp followed his own loud reaction to the

detective's statement. Either way, the detective's comment was not missed.




                                                                        A-5096-14T1
                                        23
      The comments filled a hole in the State's case: defendant's motive for

killing Claudio. The State argued that defendant was retaliating for the beating

he received a week earlier. But, that theory had a problem. The target was not

the person who did the beating. Inserting the gang element provided a reason

for the killing. The jury could conclude that the homicide arose out of a gang

conflict involving both Claudio and Torres.

      The second comment was particularly prejudicial because it directly

tarred defendant as a gang member.         In holding that evidence of gang

membership was properly analyzed under N.J.R.E. 404(b) as evidence of other

crimes and wrongs, we observed that "membership in a street gang . . . is at the

very least strongly suggestive of" criminal activity. Goodman, 415 N.J. Super.

at 227. A "mere . . . allegation[] of gang membership carries a strong taint of

criminality." Ibid. (quoting United States v. Acosta, 110 F. Supp. 2d 918, 931

(E.D. Wis. 2000)). Evidence of past criminality risks conviction because the

jury may conclude defendant is a bad person with a propensity to commit

crimes. State v. Skinner, 218 N.J. 496, 514 (2014); State v. Rose, 206 N.J.

141, 180 (2011) (citing United States v. Green, 617 F.3d 233, 248-49 (3d Cir.

2010)).   "There is widespread agreement that other-crime evidence has a

unique tendency to turn a jury against the defendant.       'The likelihood of

prejudice is acute when the proffered evidence is proof of a defendant's



                                                                        A-5096-14T1
                                      24
uncharged misconduct.'"      Stevens, 115 N.J. at 302 (quoting Edward J.

Imwinkelried, The Need to Amend Federal Rule of Evidence 404(b): The

Threat to the Future of the Federal Rules of Evidence, 30 Vill. L. Rev. 1465,

1487 (1985)).

      The judge's instructions following the gang references missed the target.

In response to Crawley's first mention of gangs, the court did not address the

issue at all. Rather, the judge focused on the fact that Crawley was speculating

about why teenagers did not, or would not, want to cooperate. So, the jury was

free to use the testimony that gangs were rampant in the area for another

purpose: that the crime charged was somehow related to gangs.

      The judge's instruction following the second mention only partly

addressed the prejudice of Crawley's comment that defendant was a gang

member. The judge said, "[T]here's no information in this case whatsoever

there's any gangs involved in this case." First, this statement was inaccurate,

because the detective testified both that the playground was a gang area –

which the court did not strike – and that defendant, a gang member, was

involved. Also, the court's assertion that there was "no information in this

case" about gang involvement did not contradict the truth of the detective's

statement.




                                                                       A-5096-14T1
                                      25
      At best, the jury could understand the judge's statement to mean there

was no evidence that a gang had ordered the homicide or the homicide arose

out of a gang rivalry.    But the judge's statement did not directly address

defendant's membership, which conveyed the taint of criminality and

propensity to commit crimes. 5 Further, the court's direction that the jury not

consider the "gang situation" suffered from vagueness.

      The judge also asserted, as a fact, that Detective Crawley's statement

about defendant was "unintentional."        But the court's fact-finding lacked

evidence in the record. 6 It was also inappropriate, because it bolstered the

detective's credibility in the juror's minds.    The jury was more likely to

consider the statement to be true because it was unintentional.7


5
  In other words, even if the instructions effectively removed the shadow of
gang involvement from the homicide, it did not remove it from the defendant
himself. To illustrate, if a defendant were charged with domestic violence
against his girlfriend, mentioning the defendant's involvement in a gang –
though totally unrelated to the alleged violence – would still prejudice the
defendant. It would convey to the jury that he was a bad person who regularly
engaged in acts of criminality and violence – that is, a person capable and
prone to commit the crime charged.
6
  If anything, the record would have supported the opposite conclusion, given
the prosecutor's statement that he expressly warned each witness to avoid the
subject of gangs, and the detective's reference to defendant's alleged gang
membership was his second misstep.
7
   To increase the likelihood the jurors would actually disregard the detective's
statement, the judge could have explained that giving it weight would disserve
                                                                     (continued)

                                                                        A-5096-14T1
                                       26
(continued)
the fact-finding function, and would unfairly prejudice their view of defendant.
To further guard against misuse, the court should have provided a warning
akin to that accompanying admissible Rule 404(b) evidence. For example, the
judge could have stated:

            Ladies and gentlemen, you just heard Detective
            Crawley mention that defendant is a member of a
            gang. I am striking that statement, and direct you to
            disregard it and give it no weight whatsoever. Let me
            explain why.

            First, the statement is unsupported by any evidence in
            this case. Regardless of whether the detective actually
            believes what he says, his statement may be based on
            hearsay, or rumor, or mistaken information. It would
            be unfair to defendant, and wrong for you to credit the
            detective's statement without proof, without evidence.
            Without proof, it is nothing more than an allegation.
            You are obliged to make fact-findings based not on
            allegations, but on the evidence presented in this
            courtroom, and only that evidence, in accord with the
            instructions I give you. There has been, and will be
            no evidence that gangs were involved in this
            homicide, or defendant is himself a gang member.
            The detective's statement by itself is not evidence.

            Second, because we knew in advance that there would
            be no evidence in this trial to support the detective's
            statement, the detective was directed not to mention
            gangs. He did so anyway, in violation of my
            direction. You should disregard his statement.

            Third, you must not conclude, based on the detective's
            unsupported statement, that defendant is a bad person,
            or that he was more likely to commit the crimes
            charged based on the detective's characterization of
                                                                      (continued)

                                                                         A-5096-14T1
                                      27
      As a result of these deficiencies, the risk of the jury's non-compliance

with the court's instructions was intolerably high. The State's case was far

from overwhelming, as it depended on the often-inconsistent testimony of two

eyewitnesses.     The trial judge recognized, in the course of one side-bar

discussion, that this was a "very close case."       And in the colloquy after

Crawley's second gang reference, specifically alleging defendant was a gang

member, the judge stated that if there were further errors, the State would be

"bordering on a mistrial."

      The question before us is not whether comprehensive and well-targeted

instructions could have cured the taint of the inadmissible references to gangs


(continued)
              him. The statement is unsupported and should be
              given no weight.

              While I am on the subject, I also direct you to
              disregard and give no weight to the detective's
              statement that the neighborhood near the school is a
              "high gang area." The detective provided no evidence
              to support that statement. That statement also violated
              my direction that unsupported statements about gangs
              were prohibited. It would be unfair and wrong for you
              to conclude that the alleged presence of gangs in the
              area provided a reason for the homicide, or supported
              a finding that defendant committed it.

              To repeat, the statements regarding gangs are
              unsupported; it would be unfair and wrong if you gave
              them any weight; and I direct you to disregard them.


                                                                        A-5096-14T1
                                        28
and to defendant's gang membership. The instructions did not fully and clearly

address the prejudicial aspects of the testimony.

      Therefore, we conclude that the gang references caused substantial

prejudice, which the judge's instructions did not cure. On this basis, we are

constrained to reverse the conviction. Given our conclusion on this point, we

need not address in this opinion whether the court erred in its instructions on

the subject of the eyewitnesses' use of pseudonyms and expressions of fear. 8

      As for the other issues raised on appeal in the counseled and pro se

briefs challenging the conviction, we find they lack sufficient merit to warrant

discussion.    R. 2:11-3(e)(2).   We add that Crawley's explanation for the

differences in the eyewitnesses' description would have been inappropriate

opinion testimony; but defense counsel opened the door to the subject by

challenging Crawley's reasons for obtaining an arrest warrant despite the

differences.

      Reversed and remanded for a new trial. We do not retain jurisdiction.




8
   However, Judge Ostrer comments on this subject in an unpublished
concurrence.


                                                                        A-5096-14T1
                                       29
___________________________________

OSTRER, J.A.D., concurring.

      The gang references provide a sufficient basis for reversal.       I write

separately because I believe the prejudice from the gang references was

compounded by the repeated references to Arce and Maldonado as "Jane Doe";

and Arce's testimony that she delayed speaking to police and used a

pseudonym because she feared retaliation against her and her family. When

supported by competent evidence, attempts to tamper or intimidate a witness

may well establish a consciousness of guilt that is probative of the underlying

charges. Goodman, 415 N.J. Super. at 232. Although the State presented no

evidence that defendant did anything to intimidate either witness, the use of

pseudonyms and testimony about fear created the risk that the jury would find

that such intimidation occurred here.

      The timing and specificity of the judge's instructions were also ill-suited

to the prejudice created. As a matter of timing, the judge refused to provide

any instruction in response to the use of "Jane Doe" or Arce's expression of

fear while Arce and Maldonado testified. Only after the two eyewitnesses

were off the stand, in the midst of the curative instruction prompted by

Crawley's second gang reference, did the judge add an instruction about the

use of pseudonyms. The judge himself conceded that perhaps he should have
addressed the issue earlier. By that time, jurors may have cemented in their

minds the ideas that (1) defendant did something to cause fear and to prompt

the eyewitnesses to seek anonymity; and (2) defendant acted that way because

he was conscious of his guilt.

      The judge's instruction was also poorly focused. The judge said the

eyewitnesses simply "wanted to keep their identity private," but then seemed

to attribute the use of pseudonyms to police procedure, stating "the Jane Doe

situation is routine police work repeatedly in these kind of cases, it's just done

that way." The judge did not address the reasons why the witnesses wanted

anonymity. Arce said she was afraid. An officer testified he heard she was

afraid of retaliation.

      Nor did the judge explain why police routinely gave witnesses

pseudonyms.     The factual basis for the court's statement is unclear, as the

police officers who presented the photo arrays to Arce and Maldonado did not

testify that the use of pseudonyms was "routine." Most importantly, the judge

did not instruct the jury that there was no evidence that defendant had

intimidated or tampered with the witnesses, and they should not use the

evidence of the witnesses' desire for anonymity, and any fear they experienced,

as evidence of defendant's consciousness of guilt.




                                                                         A-5096-14T1
                                        2
      The repeated use of the pseudonyms, and the references to fear of

retaliation, provided indirect support for the statements that defendant

belonged to a gang, and gangs were present in the area. Jurors did not need to

hear from an expert to know that gang members might intimidate those who

assist the police against them.

      Once the court permitted the testimony that Arce delayed going to police

out of fear and both witnesses utilized pseudonyms, it was incumbent upon the

court to limit the use of such testimony, by instructing the jury that there was

no evidence that defendant had intimidated or threatened them. The court's

omission provides additional grounds for granting defendant a new t rial.




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