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State v. Cole

Supreme Court of New Jersey

June 27, 2017

STATE OF NEW JERSEY, Plaintiff-Appellant,
v.
ANTHONY K. COLE, Defendant-Respondent.

          Argued January 17, 2017

         On certification to the Superior Court, Appellate Division.

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

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

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

          PATTERSON, J., writing for the Court.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

          OPINION

          PATTERSON, JUSTICE

         In this appeal, we review an evidentiary ruling made by the trial court during defendant's trial for attempted murder and other offenses.

         Several months after a municipal employee was assaulted and seriously injured during a public event, defendant Anthony K. Cole was linked by DNA analysis to evidence found at the scene. Police officers arrested defendant, transported him to police headquarters, and interrogated him in two sequential conversations, both video-recorded. Advised that the officers had forensic evidence linking him to the crime, defendant maintained his innocence, provided an alibi, and asked to be released. When the officers were in the room, defendant was gregarious and engaged. When briefly left alone during three breaks from the questioning, however, defendant adopted a starkly different demeanor; he muttered to himself, mouthed obscenities toward the location where the officers had been sitting and the video camera, and placed his hand inside his pants.

         The trial court denied defendant's motion to bar the admission into evidence of the three segments of the video recordings in which defendant appeared alone in the interrogation room. The court ruled that the contested portions of the video recordings were relevant to the credibility of defendant's statement denying involvement in the crime and that they met the standard of N.J.R.E. 401. The court rejected defendant's argument that the evidence was unduly prejudicial and should be excluded under N.J.R.E. 403.

         At trial, the State presented the video recordings in their entirety, along with substantial evidence of defendant's guilt, including DNA analysis and the testimony of witnesses who contradicted defendant's statement. The trial court offered to give the jury a limiting instruction about the video-recorded evidence upon defendant's request; defendant did not seek such an instruction. In summation, the prosecutor not only urged the jury to consider the video recording in assessing defendant's credibility, but also suggested that defendant's behavior when the officers were out of the interrogation room signified his guilt. The jury convicted defendant of all charges.

         An Appellate Division panel reversed defendant's conviction. The panel did not determine whether the trial court had properly admitted the video-recorded segments at issue as relevant to the credibility of defendant's statement to police. It held, however, that those segments were inadmissible as consciousness-of-guilt evidence.

         We do not concur with the Appellate Division's analysis of this case. The trial court admitted the disputed video-recorded segments not because they constituted proof of defendant's consciousness of guilt, but by virtue of their relevance to defendant's credibility when he denied involvement in the crime immediately before and after those segments were recorded. We conclude that the trial court properly exercised its broad discretion when it applied N.J.R.E. 401 and 403 to the contested evidence and admitted the video recordings in their entirety. We further hold that the lack of a limiting instruction and the prosecutor's comment on the evidence did not constitute plain error.

         Accordingly, we reverse the Appellate Division's judgment and remand this matter to the panel for a determination of the issues raised by defendant on appeal that remain unresolved.

         I.

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

         On the evening of September 7, 2009, David Donatelli, a supervisor employed by the Borough of South Plainfield Department of Public Works, was on duty in Spring Lake Park, preparing for the Borough's annual Labor Day fireworks display. As he stood in the northeast portion of the park near its tennis courts and an adjacent walking path, looking up to examine a light stanchion, Donatelli sensed someone brushing up against his shoulder. He felt as if his neck were struck by "a whip, " began to bleed, and realized that he had been slashed with a sharp object. Donatelli implored his fellow employees to help him, laid down on the ground, and went into shock.

         After a police officer rendered first aid, an ambulance transported Donatelli to a trauma center. Physicians conducted emergency surgery to close a laceration on the side of Donatelli's neck; the laceration measured six to eight inches in length and was deep enough to expose, but not to sever, his carotid artery and jugular vein. Donatelli was left with a permanent scar and loss of sensation in the affected area. He never returned to his job.

         Two witnesses who had been in the park to attend the fireworks display generally described a man whom they had seen running near the path in the vicinity of the assault. Police officers searched the area but did not locate a suspect. A K-9 dog led its handler along a scent trail near the path but stopped abruptly on a nearby street, signaling that an individual may have exited the park and departed in a vehicle.

         The following morning, during a search of the path near the location where Donatelli had been attacked, a police officer found two matching black-and-gray gloves, one on the ground and the other suspended from a tree thirteen feet above the ground. The gloves were secured and delivered to the New Jersey State Police forensic laboratory for DNA testing.

         For several weeks, the investigation stalled as officers interviewed various individuals but ruled them out as suspects. Five weeks after the assault, however, the State Police laboratory advised South Plainfield officers that blood identified by DNA analysis as Donatelli's had been found on the outside of the glove, on the index finger portion of the glove. State Police forensic scientists then swabbed the interior of both gloves and detected skin cells. They submitted samples of those cells for comparison with the statewide database of known DNA profiles. That comparison revealed a match between DNA extracted from the skin cells found in the gloves and defendant's DNA profile in the database.

         On December 16, 2009, the State Police forensic laboratory advised the South Plainfield Police Department that DNA evidence connected defendant to the gloves. Several of the Borough's officers were acquainted with defendant through encounters with him at the Police Athletic League (PAL) facility, where defendant regularly lifted weights. An officer contacted defendant by cellphone to determine his location. Several officers arrested defendant and brought him to police headquarters.

         Defendant stated that he wanted to talk to police officers and was immediately escorted to an interrogation room, where video-recording equipment documented the proceedings.

         After waiving his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), defendant was interviewed by two officers for approximately two hours. Defendant was talkative and responsive during the conversation; he addressed the officers in a familiar and friendly tone, invoking his prior contacts with them while lifting weights at the PAL facility. He admitted that he was in Spring Lake Park the night of the incident but denied that he was in the section of the park where the attack on Donatelli occurred. Defendant told the officers that he was alone in the park that evening and that he did not encounter anyone he knew. He stated that as the fireworks were beginning, his mother called him and said that she needed him to come home "to cut some boxes or something stupid and take them out for recycling, " and that he "just left." Defendant gave the officers an incorrect cellphone number for his mother.

         Shown a photograph of gloves similar to the gloves found in Spring Lake Park the morning after Donatelli was attacked, defendant denied ever owning or wearing gloves of that type. He offered to prove that contention by retrieving his own pair of gloves from his home and bringing them to the officers. At the officers' request, defendant provided a DNA sample by buccal swab.

         As the interview progressed, the officers revealed to defendant that "scientific" evidence connected him, as well as the victim, to the gloves found in the park. Late in the interview, an officer showed defendant an excerpt of the DNA testing results provided by the State Police laboratory. Defendant challenged the DNA evidence, reiterated his innocence, and insisted that he should be permitted to leave the police station. The officers declined to release defendant, offered to resume the conversation at defendant's request, and left the room.

         The video recording then displayed an abrupt change in defendant's demeanor. After a few seconds of silence, defendant began to mutter to himself in an agitated manner. He put his hand inside his pants and mouthed obscenities in the direction of the seats where the officers had been sitting, and in the direction of the camera. Approximately five minutes later, defendant stood up and summoned an officer by knocking on the door. When an officer responded, defendant addressed him in a collegial manner. Defendant was escorted from the room. At that point, the first of the two video recordings ended.

         Minutes later, defendant spotted South Plainfield's Chief of Police, with whom he was acquainted, and asked to speak with him. Defendant, the Chief of Police, and another officer entered the interrogation room and the video-recorded interrogation resumed.[1] After waiving his Miranda rights for the second time, defendant again denied involvement in the attack on Donatelli and requested that the Chief of Police release him from custody. The Chief told defendant that according to the DNA evidence, defendant had worn the gloves found at the scene. He offered to leave the room to give defendant an opportunity to decide whether to explain the presence of his DNA in the gloves. Left alone in the interrogation room for less than two minutes, defendant became agitated and muttered to himself.

         When the Chief of Police returned, defendant resumed his cooperative demeanor. He bantered with the Chief about weightlifting and referred to one of the other officers as a "cool guy." Defendant offered to state his case to a judge, provided that the Chief release him from custody. The Chief asked defendant to explain what had happened at Spring Lake Park on the evening of the crime. Defendant insisted that he was alone that evening and that he was not by the tennis courts. He again requested to be released and promised to explain his innocence to "the judge."

         The Chief of Police again left the room. For about three minutes, the camera recorded defendant as he reviewed a document regarding the DNA test results and mouthed words. The Chief of Police then returned and offered to call one of defendant's relatives regarding defendant's status. Defendant insisted that if the Chief of Police called someone on his behalf, that person should be permitted to drive him home. Defendant told the Chief of Police that he had "nothing to do" with Donatelli and "[did not] even care about him." The Chief departed, and the second video recording concluded.

         Police officers later conducted consent searches of the rooms that defendant occupied in his parents' homes but found no evidence. Pursuant to a communications data warrant, officers obtained records of cellphone calls to and from defendant and his mother for September 7, 2009; those records revealed no telephone conversation between defendant and his mother on that date. Defendant's cellphone records indicated that at 8:47 p.m. that evening, shortly after Donatelli was assaulted, defendant used his cellphone to call a local taxi service.

         The State Police forensic laboratory advised the investigating officers that the DNA sample taken by buccal swab during defendant's interrogation confirmed that defendant was the source of the skin cells extracted from the gloves found in Spring Lake Park the morning after Donatelli was assaulted. According to the State's forensic expert, defendant's DNA sample and the ...


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