September 25, 2017
appeal from the Superior Court, Appellate Division, whose
opinion is reported at N.J.Super. (App. Div. 2016).
E. Krakora, Public Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender, attorney; Joseph E.
Krakora and Alison Perrone, 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).
E. Ross, Deputy Attorney General, argued the cause for amicus
curiae Attorney General of New Jersey (Christopher S.
Porrino, Attorney General, attorney; Sarah E. Ross, of
counsel and on the brief).
appeal as of right, defendant Rolando Terrell challenges the
Appellate Division's affirmance of his convictions as to
the three issues raised in the dissenting opinion: the
exclusion of the defense expert's testimony, the
admission of testimony by the State's gang expert, and
the replacement of a deliberating juror.
April 2011, a jury convicted defendant of first-degree
robbery and the second-degree offenses of conspiracy to
commit robbery, unlawful possession of a handgun, possession
of a handgun for an unlawful purpose, and conspiracy to
commit arson for his role in the September 2008 arson,
robbery, and murders of four people. The jury was unable to
render a verdict on the murder charges, as well as possession
of a defaced firearm. In a separate trial, the same jury
convicted defendant of the separately charged persons not to
possess weapons offense. Defendant filed an appeal from the
convictions. Defendant was re-tried by a jury on the murder,
felony murder, and firearm defilement charges; a second jury
found defendant guilty of all eight homicide counts, but
acquitted him on the weapon defilement count.
appealed, raising several issues for review. In addition to
claims beyond the scope of this appeal, defendant argued that
his expert's testimony was improperly excluded, that the
State's gang expert's evidence should not have been
admitted, and that the trial court erred in excusing a juror
during deliberation. The appellate panel majority affirmed.
__ N.J.Super.__(2016) (slip op. at 3).
sought to introduce expert testimony from Steven Penrod, a
research psychologist and licensed attorney, identifying
factors affecting the reliability of what he termed
"earwitness" identification. Defendant 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. The trial court 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.
majority was unpersuaded by defendant's argument that
'"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." (slip op. at 20) (alteration in original). The
majority concluded that the judge did not "abuse his
discretion when limiting aspects of the proffered evidence,
" but rather "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."
(slip op. at 31). "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." (slip op. at 31-32). Underscoring
that "the identification at issue was the survivor's
recollection it was defendant's voice she
heard"-based on her familiarity with defendant and
without prompting by police interrogation-the majority also
observed that the identification "was one of several
introduced by the State and [was] not the sole identification
evidence placing defendant at the scene of the murders."
(slip op. at 32).
also contended that the trial judge abused his discretion by
allowing, over defendant's objection, testimony by the
State's expert on gang-related activity, because
defendant's involvement in a gang had no relevance to
motive, opportunity, or the co-defendant's involvement in
the crimes. As a result, its admission was extremely
prejudicial, warranting a new trial. The majority disagreed
and discerned "no basis to interfere with the
judge's exercised discretion in admitting [the
expert's] circumscribed testimony, which provided a
framework for the jury's understanding of key events,
testimony by the lay witnesses and the relationship between
defendant and co-defendants." (slip op. at 39). The
majority noted that "the judge mitigated possible
prejudice through the use of direct voir dire questions
during jury selection." (slip op. at 40).
deliberations commenced in the retrial, two jurors-Number 2
and Number 6-asked to be excused. Defendant contended the
court erred in handling the requests by not properly making
necessary findings before excusing Juror Number 2. He
maintained that the judge's inquiry and conclusory
findings were flawed and that dismissal and replacement of
the juror, over defendant's objection and rather than
declaring a mistrial, was error.
majority rejected defendant's arguments. The majority
noted that the judge conducted separate limited voir dire of
the jurors and that, as a result of the jurors'
responses, the judge excused Juror Two and retained Juror
Six. The majority stressed 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.'" (slip op. at 51) (quoting State v.
Ross. 218 N.J. 130, 147 (2014) (internal quotation marks
omitted)). The majority observed that "the trial judge
sought the explanation for juror two's request to be
excused, " "directed the juror not to reveal juror
interactions and deliberations, " and then
"explained the release of juror two: T think she was
pretty unequivocal that emotionally she cannot continue. I
even got that sense from her voice. Her voice was cracking
....'" (slip op. at 52). The panel stated that,
"[r]egardless of whether we believe the inquiry could
have been more probing to more firmly establish the
juror's specific 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." (slip
op. at 52-53). Noting that "[t]he trial judge was in the
best position to make these determinations, " the panel
concluded that "the trial judge properly carried out the
delicate balancing function in exercising his reasoned
judgment." (slip op. at 53). The majority further found
that "the deliberations had not proceeded to such an
extent that declaring a mistrial was required." (slip
op. at 54).
Honorable Carol E. Higbee, J.S.C., dissented on the grounds
that: excluding almost all of the defense expert's
testimony precluded defendant from presenting evidence that
undermined the testimony of a witness who identified
defendant; the prejudice to defendant caused by the
State's expert's opinions about street gangs
substantially outweighed the probative value of those
opinions; and the trial court erred 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 those errors had the ...