SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2321-14T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v. 

EDUARDO LAGO, a/k/a CHULEY EDDIE,

EDGARDO LAGO, EDUARDO L. LAGO,

and EDUARDO LAGOS,

Defendant-Appellant.

____________________________________

Submitted March 14, 2017 – Decided

Before Judges Fisher, Leone and Vernoia.

On appeal from the Superior Court of New 

Jersey, Law Division, Union County, Indictment 

No. 11-04-0450.

Joseph E. Krakora, Public Defender, attorney 

for appellant (Stephen W. Kirsch, Assistant 

Deputy Public Defender, of counsel and on the 

brief).

Christopher S. Porrino, Attorney General,

attorney for respondent (Sarah E. Ross and 

Frank Muroski, Deputy Attorney Generals, of 

counsel and on the brief). 

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court."

Although it is posted on the internet, this opinion is binding only on the 

parties in the case and its use in other cases is limited. R.1:36-3.

August 1, 2017
2 A-2321-14T4

Defendant appeals his convictions following a jury trial for

murder and weapons offenses. He argues the court erred by 

permitting testimony in violation of his right to confrontation 

and by providing an incorrect response to a question posed by the 

jury during its deliberations. Based on our review of the record 

in light of the applicable law, we affirm.

I.

The charges against defendant arise from the murder of Yessina 

Feliciano at the Elizabeth home of her sister, Gloria Francisco,

and brother-in-law, Jesus Francisco.

1 In the early morning hours

of November 14, 2010, the doorbell rang and Feliciano and Gloria 

opened a side door to the home, where they were confronted by 

three men. Gloria knew defendant and immediately recognized him

as one of the men, but was not familiar with the others. She saw 

defendant lift his arms with something in his hands, and heard a 

single gunshot. Feliciano suffered a gunshot wound and died at the 

scene. The three men fled.

Defendant was arrested and charged in an indictment with 

first-degree knowing or purposeful murder of Feliciano, N.J.S.A.

2C:11-3(a) or (b) (count one); second-degree unlawful possession 

of a weapon, N.J.S.A. 2C:39-5(b) (count two); and second-degree 

 

1 We will refer to Gloria and Jesus Francisco by their first names 

to avoid any confusion and for ease of reference.
3 A-2321-14T4

possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-

4(a) (count three). The evidence during his jury trial showed the 

following.

On November 14, 2010, Gloria and Feliciano awoke to the sound 

of the doorbell and went to side door of the home. The area outside 

the door was well-lit and when Feliciano opened the door, Gloria 

saw defendant and two other men. Gloria knew defendant "extremely 

well" because he was a former friend of her son Steven Rios, had 

been at their home hundreds of times, and had lived at the home 

for a few months. When Gloria saw defendant standing at the door,

his hands were down between his legs and he was holding something.

The other two men stood with their hands at their sides.

Gloria testified that she observed "something in between 

[defendant's] hands which was a gun," but later clarified that she 

could not identify the object he held. However, Gloria saw 

defendant raise his arms while grasping the object, and point his 

arms in the direction of her and Feliciano. She heard a gunshot,

pulled Feliciano away, and closed the door. Gloria saw Feliciano 

bleeding from the chest and mouth. 

Jesus testified he awoke to screaming and went downstairs 

where he observed Feliciano bleeding from the chest. He asked 

Gloria who shot Feliciano and she said it was defendant. Jesus 
4 A-2321-14T4

called the police and, after they arrived, provided them with 

photographs of defendant and Rios together. 

Rios testified about his prior friendship with defendant and 

a dispute that had arisen between them over gang membership. Rios 

and defendant had been close friends and in 2010 joined the "Crips"

gang. Defendant later moved to Newark and joined the "Bloods"

gang. Rios's gang "boss" learned that defendant joined the Bloods 

and "gave [Rios] a green light" to beat up defendant. Rios 

testified that if he did not follow the order, he would be beaten 

by his own gang's members. Rios said he never saw defendant again,

and that his only further contact with defendant was an argument 

over the phone at an unspecified time after defendant moved to 

Newark. 

The police searched for defendant following Gloria's

identification of him as the shooter. Detective William Lord went 

to an apartment on Railroad Avenue in Newark to search for

defendant. The apartment was identified as a place defendant and 

a friend had lived. The residents of the apartment were Donte 

Kirce, his girlfriend Laisha Maldanado, her brother Kidanys 

Maldanado,

2 and other members of the Maldanado family. 

 

2 We will refer to Laisha and Kidanys Francisco by their first 

names to avoid any confusion and for ease of reference.
5 A-2321-14T4

During the daytime hours of November 14, 2010, Lord went to 

the Railroad Avenue apartment twice in search of defendant. Lord 

spoke with Laisha and was permitted to look through the apartment 

for defendant, but defendant was not there.

Later that evening, Kirce arrived home at the Railroad Avenue 

apartment and found the door barricaded with furniture. Kidanys 

let Kirce into the apartment and Kirce saw defendant. About fortyfive minutes later, Kirce left the apartment and went to see Laisha 

where she worked. Kirce testified that Laisha "explained the 

situation" that a "lady died in Elizabeth." The court sustained 

defense counsel's hearsay objection to the testimony and struck 

the testimony. In response to the prosecutor's next questions,

Kirce said he called "Crimestoppers"

3 based on information he 

learned from Laisha. Kirce did not testify about what he told 

Crimestoppers when he called.

Kirce returned to the Railroad Avenue apartment and "sat in 

the living room with Kidanys and defendant." Kirce heard defendant 

say "[s]omebody had to go," but defendant did not indicate what 

he meant or who he was talking about. 

 

3 "Crimestoppers" was described by Lord as a hotline "where people 

can make anonymous tips to the police regarding criminal activity."
6 A-2321-14T4

The State introduced portions of Kirce's statement4 to the 

police where he explained that while he was in the apartment,

Kidanys retrieved a gun with a missing bullet from a back room and 

handed it through the apartment door to an unidentified individual.

In his statement, Kirce explained that defendant said "they" shot 

his "baby['s] mother['s] salon," that he went "looking for the 

dudes" and when he could not find them, he shot "one of the dude's 

aunt[s]." Kirce also told the police defendant was "scared" because 

defendant believed "the cops [were] coming."

In response to the information Kirce provided to 

Crimestoppers, later that evening Lord and Sergeant Jorge Jiminez

went to the Railroad Avenue apartment and arrested defendant. They 

also took Kidanys, Kirce, and two other men to the police station 

to obtain their statements. The investigation led police to the 

men that accompanied defendant to the scene of the shooting.

Noel Gonzalez was present when Feliciano was shot. He

testified that he left a party in Newark with defendant and a man 

named Chutay in a car driven by Nelson Pena. Gonzalez was 

intoxicated but remembered standing by a house and seeing defendant 

at a different house about twenty feet away. Gonzalez saw defendant

 

4 The court permitted the introduction of portions of Kirce's 

statement to the police following a hearing conducted in accordance 

with State v. Gross, 121 N.J. 1 (1990). Defendant does not 

challenge the court's ruling on appeal.
7 A-2321-14T4

"pull up [what] would appear to look like a gun" and shoot a woman 

at her doorway. On cross-examination, he acknowledged he "didn't 

see [defendant] actually pull the trigger," but did see defendant 

raise his hand right before the gunshot went off. According to 

Gonzalez, when defendant raised his hand, there was no one else 

near defendant other than the woman in front of him. 

Nelson Pena testified that at about 4:00 a.m., he left a 

party in a car with defendant, Gonzalez, Chutay and "Slash."

Defendant gave Pena directions to a street in Elizabeth, where 

Pena stopped the car in accordance with defendant's instructions. 

Pena, Gonzalez and defendant exited the car. Pena watched defendant 

and Gonzalez approach the side of a house, heard a shot and a 

scream, and the three men ran back to the car and departed. Pena 

testified that he did not see defendant with a gun and there was 

no discussion in the car concerning a shooting after they departed 

the scene.

Kidanys also testified. He was at the Newark party but did 

not leave in the car with defendant and the others. He testified 

that defendant left in a car driven by "Nelson" and there were 

three other occupants. Kidanys explained that when the individuals 

later returned to the party, defendant said they had gone to 

Elizabeth and that "They did something . . . Somebody got killed."

Defendant told Kidanys "he shot the person in the head." Defendant 
8 A-2321-14T4

said the shooting was over "family problems or something like 

that," and showed Kidanys a .22 caliber revolver and a bullet 

casing. Defendant also told Kidanys a guy was "bothering 

[defendant's] baby mom," and that he rang the doorbell of the home 

where the shooting took place and shot the woman that opened the 

door. 

Feliciano's autopsy was performed by a State medical 

examiner, Dr. Wall,

5 on the day of the shooting. At the time of 

trial, Wall was not available to testify. The State called another

medical examiner, Dr. Junaid Shaikh, to testify concerning the 

cause of Feliciano's death. Shaikh was qualified as an expert in 

forensic pathology. 

Shaikh testified he reviewed Wall's autopsy report and made 

independent findings based on his review of photographs of the 

autopsy, the toxicology report, and the record of Wall's 

investigation. Shaikh determined the cause of death was a "gunshot 

wound [to her] chest," and the manner of death was "homicide."

Defense counsel objected to Shaikh's testimony, arguing it 

was hearsay because it was based on Wall's autopsy report. The 

court overruled the objection, finding "the hearsay rules permit 

 

5 The record does not indicate Wall's full name.
9 A-2321-14T4

an expert [] to rely upon other expert[s'] reports . . . in 

reaching his or her conclusions."

Defendant exercised his right not to testify and did not 

present any witnesses. He was convicted on all counts. At 

sentencing, the court merged count three into count one and imposed 

a forty-year sentence subject to the requirements of the No Early 

Release Act, N.J.S.A. 2C:43-7.2, and a concurrent seven-year 

sentence with a three-year period of parole ineligibility on count 

two. Defendant appealed.

On appeal, defendant makes the following arguments:

POINT I

IN VIOLATION OF THE CONFRONTATION AND HEARSAY 

DOCTRINES OF STATE V. BRANCH AND STATE V. 

DEHART, THE TRIAL JUDGE IMPROPERLY ALLOWED THE 

STATE TO PUT BEFORE THE JURY EVIDENCE THAT 

DONTE KIRCE CONTACTED POLICE IN ORDER TO HAVE 

DEFENDANT ARRESTED ONLY IN RESPONSE TO BEING 

TOLD A HEARSAY ACCOUNT OF DEFENDANT'S ALLEGED 

COMMISSION OF THE CRIME. (PARTIALLY RAISED 

BELOW).

POINT II

THE JUDGE'S RESPONSE TO THE JURY'S QUESTION 

ABOUT THE DEFENDANT'S POTENTIAL CRIMINAL 

RESPONSIBILITY IF HE WERE NOT THE SHOOTER WAS 

CLEARLY ERRONEOUS AND DEPRIVED DEFENDANT OF A 

POSSIBLE VERDICT FOR A LESSER-INCLUDED 

OFFENSE. (NOT RAISED BELOW).

POINT III

THE MEDICAL EXAMINER, WHO DID NOT CONDUCT THE 

AUTOPSY OF THE DECEDENT, WAS IMPROPERLY 
10 A-2321-14T4

ALLOWED, OVER OBJECTION OF DEFENSE COUNSEL,

TO READ PORTIONS OF THE AUTOPSY REPORT THAT 

WAS PREPARED BY THE MEDICAL EXAMINER WHO 

ACTUALLY PERFORMED THE AUTOPSY, THEREBY 

VIOLATING DEFENDANT'S CONFRONTATION RIGHTS 

UNDER STATE V. BASS.

II.

"The Sixth Amendment to the United States Constitution and 

Article I, Paragraph 10 of the New Jersey Constitution confer on 

. . . defendant[s] the right to confront the witnesses against 

[them]." State v. Williams, 219 N.J. 89, 92 (2014), cert. denied,

___ U.S. ___, 135 S. Ct. 1537, 191 L. Ed. 2d 565 (2015). Defendant 

argues his right to confrontation was violated when Kirce testified

that he called the police based on information provided by Laisha. 

Defendant contends the testimony permitted the jury to infer that 

Laisha had knowledge implicating defendant in Feliciano's murder,

and that its admission requires reversal of his convictions. 

Before the challenged testimony, defendant had objected to 

Kirce's testimony that Laisha told him "about the situation" and 

that "a lady died in Elizabeth." The State argued the testimony 

was admissible to explain why Kirce subsequently called the police 

about defendant. The court sustained the objection on hearsay 

grounds and immediately advised the jury that the testimony was 

stricken. 
11 A-2321-14T4

Kirce then answered the following two questions posed by the 

prosecutor. 

[PROSECUTOR:] Without giving any testimony 

to what conversations you [and Laisha] had,

did you learn information from Laisha?

[KIRCE:] Yes. 

[PROSECUTOR:] Based upon that information,

what did you do?

[KIRCE:] I called Crimestoppers. 

Defendant did not object to the questions, but now contends Kirce's 

responses violated his right to confrontation as interpreted by 

our Supreme Court in State v. Branch, 182 N.J. 338 (2005). 

In State v. Bankston, 63 N.J. 263, 265-68 (1973), the Court 

addressed an accused's right to confront witnesses in the context 

of a police officer's testimony concerning why certain actions 

were taken during an investigation. During trial, a detective 

testified that "before defendant was arrested the officers had 

been talking to an informer and that based on information received 

they went to [a] tavern," with a description of defendant's 

clothing, and found defendant in possession of narcotics. Id. at 

266-67. 

The Court explained the hearsay rule does not prevent an

officer from testifying that he took an action based "upon

information received," but that "when the officer becomes more 
12 A-2321-14T4

specific by repeating what some other person told him concerning 

a crime by the accused the testimony violates the hearsay rule 

. . . [and] the accused's Sixth Amendment right to be confronted 

by witnesses against him." Id. at 268-69. The Court reversed the 

defendant's conviction because the "detective's hearsay testimony 

led to the 'inescapable inference' that the detective received 

information from an unknown source implicating the defendant in 

the crime," Branch, supra, 182 N.J. at 349 (explaining Bankston),

and because "the record presented a debatable case for the jury,

admission of the testimony "may well have been the decisive factor 

which resulted in the guilty verdict," Bankston, supra, 63 N.J.

at 272-73. 

In Branch, supra, 182 N.J. at 346-47, the primary issue 

concerning defendant's guilt was his identification by two victims 

during their review of photo arrays. A detective testified the 

arrays were assembled "based on information received." Id. at 347. 

The Court found that a police officer may testify that he took an 

action "based on information received" to explain an action, "but 

only if necessary to rebut a suggestion that they acted arbitrarily 

and only if the use of that phrase does not create an inference 

that the defendant has been implicated in a crime by some unknown 

person." Id. at 352. "The 'common thread' that renders testimony 

about information received from non-testifying third parties 
13 A-2321-14T4

inadmissible 'is that a police officer may not imply to the jury 

that he possesses superior knowledge, outside the record, that 

incriminates the defendant.'" State v. Weaver, 219 N.J. 131, 152 

(2014) (quoting Branch, supra, 182 N.J. at 351); see also State

v. Lazo, 209 N.J. 9, 12—13 (2012) ("an officer's reasons for 

placing a particular photo in an array are irrelevant and 

prejudicial," and can "improperly bolster[] the victim's account 

and invade[] the role of the jury to weigh the 

victim's credibility").

Defendant argues Kirce's testimony that he called 

Crimestoppers based on information from Laisha violated his right 

to confrontation in the same manner as the testimony of the 

officers in Bankston and Branch. Even if we assume this testimony 

violated defendant's right to confrontation, he cannot show 

prejudice. "When evidence is admitted that contravenes not only 

the hearsay rule but also a constitutional right, an appellate 

court must determine whether the error impacted the verdict."

Weaver, supra, 219 N.J. at 154. Here, defendant did not object to 

the testimony and we therefore consider whether Kirce's testimony 

impacted the verdict under the plain error standard. We will not

reverse unless the testimony was "clearly capable of producing an 

unjust result." R. 2:10-2; see Branch, supra, 182 N.J. at 353

(applying the plain error standard where there was no objection 
14 A-2321-14T4

to testimony that violated defendant's right to confrontation).

We reverse only where there is a possibility of an unjust result 

"sufficient to raise a reasonable doubt as to whether the error 

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

State v. G.V., 162 N.J. 252, 280 (2000) (quoting State v. G.S.,

145 N.J. 460, 473 (1996)).

Having carefully reviewed the record, we are convinced 

Kirce's testimony was not clearly capable of producing an unjust 

result. R. 2:10-2; see also State v. Kemp, 195 N.J. 136, 156 (2008) 

(finding that even where testimony may implicate "the concerns 

interdicted by Bankston," a reversal is not required where the 

totality of the circumstances leads to the conclusion that 

admission of the evidence was harmless). Kirce's testimony that 

he called Crimestoppers based on information he received from 

Laisha does not logically support a conclusion that Laisha 

implicated defendant in the commission of a crime or that she had 

any knowledge concerning his involvement in any crime. 

The jury was not presented with any evidence Laisha had any 

knowledge about defendant's involvement in Feliciano's murder. She 

was not present at the scene and there is no evidence she spoke 

to anyone who was present. The evidence showed only that Laisha 

spoke to Lord when he went to the apartment on two occasions 

looking for defendant. 
15 A-2321-14T4

Moreover, there is no evidence showing Kirce knew the police 

were searching for defendant prior to his conversation with Laisha. 

In his challenged testimony, Kirce said only that based on the 

information Laisha provided, he called Crimestoppers. The evidence 

permitted only an inference that Laisha told Kirce the police were 

searching for defendant, and Kirce, who knew defendant was at the 

apartment, called Crimestoppers to report defendant's location.6

When considered in the context of the evidence, Kirce's 

testimony about the actions he took based on information Laisha 

provided relates solely to the search for defendant. Unlike the 

testimony at issue in Bankston and Branch, Kirce's testimony did 

not "permit[] the jury to draw the inescapable inference that a 

non-testifying declarant provided information that implicated"

defendant in the commission of a crime, and did not "suggest[] 

that some other person provided information that linked defendant 

to the crime." Branch, supra, 182 N.J. at 351. To the contrary,

 

6 The same result applies even if we accept defendant's contention 

that the jury could not be reasonably expected to honor the judge's 

ruling striking Kirce's testimony that he discussed "the 

situation" with Laisha and she said "a lady died in Elizabeth."

This testimony does not implicate defendant in the commission of 

any crime but even if it did, it was harmless because there is no 

evidence Laisha had any knowledge about the commission of the 

murder or of defendant's involvement in the murder. In any event,

we presume the jury followed the court's instructions to strike 

the testimony. State v. Smith, 212 N.J. 365, 409 (2012). 
16 A-2321-14T4

Kirce's testimony suggested only what the jury knew from other 

witnesses, that the police were searching for defendant. We 

therefore do not find there is a reasonable doubt that admission 

of the testimony led the jury to a result it otherwise might not 

have reached. G.V., supra, 162 N.J. at 280. 

Even assuming Kirce's testimony suggested defendant's

participation in a crime, there is an additional reason admission 

of the testimony did not constitute plain error.

7 Unlike in 

Bankston, supra, 63 N.J. at 272-73, and Branch, supra, 182 N.J.

at 353, where the challenged testimony was capable of producing 

an unjust result because there was little other evidence of guilt,

here there is substantial evidence of defendant's guilt beyond 

Kirce's brief testimony. Gloria had known defendant for a very 

long time, recognized him at the door, and immediately identified 

 

7 Defendant argues the harmless error standard of review applies 

because the challenge to Kirce's testimony was partially raised 

below when defendant objected to Kirce's testimony that he and 

Laisha discussed the situation and she said "a lady died in 

Elizabeth." We disagree. The record shows the court sustained the 

objection to the testimony and struck it. There was no objection 

to the particular testimony challenged on appeal and, as such, the 

plain error standard applies. R. 2:10-2; Branch, supra, 182 N.J.

at 353. In addition, we observe that because the harmless error 

standard requires that we determine whether an error was clearly 

capable of producing an unjust result, our decision here would be 

unchanged under that standard. See State v. Macon, 57 N.J. 325,

337-38 (1971) ("[T]he same ultimate standard applies whether the 

error was objected to below or whether the error was first claimed 

upon appeal").
17 A-2321-14T4

him as the shooter. Gonzalez and Pena established that defendant 

directed their travel to Gloria's home and that defendant went to 

the door, stood in front of a woman, raised his hands, and a 

gunshot was fired. Kirce testified defendant admitted that he shot 

"one of the dude's aunt[s] where [the dude] live at." Kidanys 

testified defendant showed him the gun and admitted to his motive 

for the shooting, and that he rang a doorbell and shot the woman 

that opened the door. 

In sum, there was substantial evidence defendant murdered 

Feliciano beyond Kirce's testimony that he called Crimestoppers 

after speaking to Laisha. Kirce's testimony was therefore not 

clearly capable of producing an unjust result. R. 2:10-2; Kemp,

supra, 195 N.J. at 153-54.

We also reject defendant's claim that Kirce's testimony 

violated his right to confrontation. Defendant waived the claim

by failing to object to the testimony at trial. "The defendant 

always has the burden of raising his Confrontation Clause 

objection." Williams, supra, 219 N.J. at 99 (quoting MelendezDiaz v. Massachusetts, 557 U.S. 305, 327, 129 S. Ct. 2527, 2541,

174 L. Ed. 2d 314, 331 (2009)). "The right of confrontation, like 

other constitutional rights, may be waived by the accused." Id.

at 98. A defendant is not required to assert a constitutional 

right, and a defense attorney may choose as part of a reasonable 
18 A-2321-14T4

defense strategy to refrain from objecting to testimony that may 

be otherwise inadmissible because it violates a defendant's right 

to confrontation. Id. at 99.

A failure to object to testimony that violates a defendant's 

right to confrontation may not result in a waiver where the failure 

"is so patently unreasonable and so clearly erroneous that no 

rational counsel acting within the wide range of professional 

norms would pursue such a course." Ibid. That is not the case 

here. Kirce's challenged testimony added little to the State's

proofs at trial because it suggested only that he learned from 

Laisha that the police were searching for defendant. The testimony 

did not prejudice defendant because other witnesses established 

that defendant had been identified as the shooter and that based 

on that information, the police were searching for defendant. 

"[G]enerally, a defendant must attempt to exercise his 

confrontation right and object when necessary, if he wishes later 

to claim that he was denied that right." Id. at 93. By failing to 

do so here, defendant waived any claim Kirce's testimony violated 

his right to confrontation.8 See id. at 102 (finding the defendant 

 

8 Because we conclude that defendant waived his right to challenge 

Kirce's testimony on Confrontation Clause grounds, it is 

unnecessary to decide whether his challenge is also barred under 

the invited error doctrine. Id. at 100; State v. A.R., 213 N.J.

542, 561-62 (2013). We note, however, that "[u]nder the invited 
19 A-2321-14T4

waived his Confrontation Clause claim by failing to object to 

challenged testimony at trial). 

III.

We next consider defendant's argument that the court erred 

by permitting Shaikh to testify concerning Wall's autopsy report. 

Defendant asserts that because Shaikh did not perform the autopsy,

his reliance on Wall's report and testimony detailing the report's 

findings constituted impermissible hearsay evidence and violated 

his right to confrontation. Defendant interposed a hearsay 

objection to the testimony at trial.9 We therefore consider his 

 

error doctrine, 'trial errors that "were induced, encouraged or 

acquiesced in or consented to by defense counsel ordinarily are 

not a basis for reversal on appeal."'" State v. Munafo, 222 N.J.

480, 487 (2015) (quoting State v. A.R., 213 N.J. 542, 561 (2013)). 

A defendant cannot agree to a particular instruction, "'and upon 

adoption by the court, take his chance on the outcome of the trial,

and if unfavorable, then condemn the very procedure he sought and 

urged, claiming it to be error and prejudicial.'" State v. Ramseur,

106 N.J. 123, 281-82 (1987) (citation omitted).

9 We reject the State's argument defendant waived his right to 

challenge Shaikh's testimony on Confrontation Clause grounds 

because defendant did not raise the issue prior to trial and during 

trial objected only on hearsay grounds. State v. Wilson, 227 N.J.

534, 543-44 (2017); see also State v. Bass, 224 N.J. 285, 311 

(2017) (explaining that although confrontation clause objections 

are "best addressed before trial," they are not waived if raised 

during a witness's testimony (quoting Williams, supra, 219 N.J.

at 102)). Like the defendant in Wilson, defendant not only 

objected on hearsay grounds at trial, he also "alluded to an 

inability to cross-examine" Wall, Wilson, supra, 227 N.J. at 543 

(quoting State v. Wilson, 442 N.J. Super. 224, 235 n.4 (App. Div. 

2015)), by asking, "Don't I have the right to cross-examine the 

person who performed the autopsy?"
20 A-2321-14T4

contentions under the harmless error standard, R. 2:10-2, and must 

reverse if we determine the purportedly erroneous admission was 

clearly capable of producing an unjust result. State v. Scott, ___ 

N.J. ___, ___ (2017) (slip op. at 17). 

In Bass, supra, 224 N.J. at 291-92, the Court held that under 

certain circumstances "the State may present the testimony of a 

qualified expert who has conducted independent observation and 

analysis regarding an autopsy performed by a medical examiner who 

is unavailable to testify at trial, without violating the 

defendant's" right to confrontation. The testifying doctor is 

permitted to testify "as an independent reviewer of the information 

generated by the autopsy" based on a review of "autopsy 

photographs" and other evidence. Id. at 319. The testifying doctor,

however, may not simply "parrot" the information in the autopsy 

report without violating a defendant's confrontation rights. Ibid.

"[A] testimonial report that is not admitted into evidence can 

engender a violation of the Confrontation Clause if that report 

is 'integral' to the testimony of a substitute witness." Id. at 

317 (quoting State v. Roach, 219 N.J. 58, 76-77 (2014), cert. 

denied, ___ U.S. ___, 135 S. Ct. 2348, 192 L. Ed. 2d 148 (2015)).

Contrary to defendant's assertions, there were portions of 

Shaikh's testimony that did not violate defendant's confrontation 

rights. Shaikh explained that he conducted a review of the autopsy 
21 A-2321-14T4

photographs, which showed Feliciano's internal and external 

injuries, the gunshot wound, the entrance of the bullet at the 

left side of Feliciano's chest, and the recovery of the bullet 

within Feliciano's body. Based on his review of the photographs 

and the autopsy and toxicology reports, he made an independent 

finding that Feliciano died as the result of a gunshot wound to 

the chest. This testimony was based on Shaikh's independent review 

of the evidence and did not violate defendant's right to 

confrontation. See id. at 319 (explaining that a substitute medical 

examiner may provide an opinion based upon an independent review 

of the evidence). 

There were, however, portions of Shaikh's testimony where he 

simply parroted Wall's autopsy report.10 Shaikh referred to the 

autopsy report and testified concerning physical findings made by 

Wall during the autopsy. Those portions of his testimony violated 

defendant's confrontation rights. Id. at 316-20. We therefore must 

consider whether the admission of those portions of his testimony 

require reversal of defendant's convictions. 

 

10 We reject the State's argument that Shaikh's testimony 

concerning the autopsy report did not violate defendant's 

confrontation rights because the report was not testimonial. See

id. at 316-17 (finding autopsy report was testimonial under the 

"primary purpose test" where the autopsy was conducted during an 

active police investigation of a homicide).
22 A-2321-14T4

In determining whether admission of Shaikh's testimony 

parroting Wall's report constituted harmless error, we consider 

the importance of the testimony in the context of all of the 

evidence presented at the trial. Id. at 308. The record shows 

there was other substantial evidence demonstrating Feliciano died 

from a gunshot wound to her chest. Separate from his parroting of 

Wall's report, Shaikh testified that his own independent 

evaluation of the evidence supported his conclusion Feliciano died 

from a single gunshot wound. Other evidence established that 

Feliciano was shot in the chest and died immediately thereafter. 

Moreover, the cause of Feliciano's death was not an issue genuinely

disputed issue at trial. Instead, defendant argued only that the 

State failed to establish beyond a reasonable doubt that he fired 

the gun. Therefore, we are not convinced Shaikh's testimony, to 

the extent it parroted Wall's report, was clearly capable of 

producing an unjust result.

IV.

We last address defendant's claim that the court erred in its 

response to a question posed by the jury during its deliberations. 

The jury asked: "[c]an the defendant cause the victim's death by 

instructing and leading everyone to the scene regardless of who 

pulled the trigger[?]" The court conferred with counsel and the 
23 A-2321-14T4

parties agreed without objection to the following response to the 

jury's inquiry.

The answer to your question is no. Since the 

defendant is charged with causing the death 

of [] Feliciano himself, he cannot be found 

guilty of causing [] Feliciano's death by 

. . . instructing and leading everyone to the 

scene regardless of who pulled the trigger.

If you are not convinced beyond a reasonable 

doubt that it was [defendant] who caused the 

death of [] Feliciano knowingly or purposely,

then you must find him not guilty. 

However, if you are convinced beyond a 

reasonable doubt that he did cause her death 

and all the elements of either murder or 

aggravated manslaughter have been proven by 

the State beyond a reasonable doubt, then you 

must convict the defendant. 

Defendant argues for the first time on appeal that the court 

erred in not instructing the jury on principal and accomplice 

liability, thereby depriving defendant of an opportunity for a

verdict on the lesser-included offense of aggravated manslaughter 

or a potential acquittal. 

When a defendant fails to object to a jury charge at trial 

or a response to a jury question during deliberations, we review

for plain error, and "disregard any alleged error 'unless it is 

of such a nature as to have been clearly capable of producing an 

unjust result.'" State v. Funderburg, 225 N.J. 66, 79 (2016) 

(quoting R. 2:10-2). Plain error, in the context of a jury charge,
24 A-2321-14T4

is "[l]egal impropriety in the charge prejudicially affecting the 

substantial rights of the defendant and sufficiently grievous to 

justify notice by the reviewing court and to convince the court 

that of itself the error possessed a clear capacity to bring about 

an unjust result." State v. Camacho, 218 N.J. 533, 554

(2014) (alteration in original) (quoting State v. Adams, 194 N.J.

186, 207 (2008)).

Appropriate and proper jury charges, including instructions 

on lesser-included offenses, are essential to a fair trial. State 

v. Savage, 172 N.J. 374, 387 (2002); see also State v. Gonzalez,

444 N.J. Super. 62, 70 (App. Div.) (explaining that jury 

instructions play a critical role in criminal prosecutions),

certif. denied, 226 N.J. 209 (2016). However, a defendant's 

counsel's failure to object to jury instructions not only "gives 

rise to a presumption that he did not view its absence as 

prejudicial to his client's case," State v. McGraw, 129 N.J. 68,

80 (1992), but is also "considered a waiver to object to the 

instruction[s] on appeal." State v. Maloney, 216 N.J. 91, 104 

(2013). 

"When a defendant may be found guilty either as a principal

actor or as an accomplice, the jury should be instructed about 

both possibilities." State v. Roach, 146 N.J. 208, 223 (1997). The 

judge may charge the jury on accomplice liability even if the 
25 A-2321-14T4

indictment did not expressly allege accomplice liability as long 

as there is a rational basis in the evidence for accomplice 

liability. State v. Hakim, 205 N.J. Super. 385, 388 (App. Div. 

1985). The rational basis standard is a low threshold, requiring 

"more than a mere 'scintilla of evidence.'" State v. Harvey, 151 

N.J. 117, 149 (1997) (quoting State v. Mejia, 141 N.J. 475, 489 

(1995)), cert. denied, 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed.

2d 683 (2000).

"[T]he obligation to provide the jury with instructions 

regarding accomplice liability arises only in situations where the 

evidence will support a conviction based on the theory that a 

defendant acted as an accomplice." State v. Crumb, 307 N.J. Super.

204, 221-22 (App. Div. 1997), certif. denied, 153 N.J. 215 (1998). 

"When the State's theory of the case only accuses the defendant 

of being a principal, and a defendant argues that he was not 

involved in the crime at all, then the judge is not obligated to 

instruct on accomplice liability." Maloney, supra, 216 N.J. at 

106.

Applying these principals, we find no error, let alone plain 

error, in the court's response to the jury question. Defense 

counsel never requested a jury charge on accomplice liability and 

agreed to the judge's response to the question. Moreover, there 

was not a scintilla of evidence supporting a charge of accomplice 
26 A-2321-14T4

liability. Harvey, supra, 151 N.J. at 149. The State's theory of 

the case was that defendant shot Feliciano based on gang-related 

retaliation against Rios and Rios's family. There was no evidence 

that anyone other than defendant was the shooter. 

Defendant did not testify or present any witness testimony. 

In summation, defense counsel argued that the State put on an 

incomplete case where no witness saw the gun allegedly used in the 

shooting and the gun was not recovered. Counsel also argued each 

witness had a different story and that defendant had no motive to 

kill Feliciano based on gang-related issues with Rios. In other 

words, defendant's theory was that he did not commit the crime at 

all. The court therefore was not obligated to sua sponte instruct 

the jury on accomplice liability in response to the jury question. 

Maloney, supra, 216 N.J. at 106.

Defendant is also incorrect that the court's response to the 

jury question deprived him of the possibility of being convicted 

of the lesser-included offense of aggravated manslaughter. The

court charged the jury on the lesser-included offense of aggravated 

manslaughter, and reminded the jury it could convict defendant of 

either murder or aggravated manslaughter, or acquit defendant, in 

its response to the jury's question. The judge ensured there was 

no risk that the jury convicted defendant simply because it was 

called upon to reach an "all-or-nothing" determination on the 
27 A-2321-14T4

murder charge. See State v. Short, 131 N.J. 47, 54 (1993) 

(explaining where jurors are not instructed on a lesser-included 

offense, they "may be tempted to find defendant guilty of a crime 

he or she did not commit simply because it prefers to convict on 

some crime rather than no crime at all").

We have considered defendant's remaining arguments and find 

they are without merit sufficient to warrant discussion in a 

written opinion. R. 2:11-3(e)(2).

Affirmed.