SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A
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STATE OF NEW JERS E Y , 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. Ki rsch , 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PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not " constitute precedent or be binding upon any court . " A lthough 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, 20172 A
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Defendant appea ls 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 t he murder of Yessina
Feliciano at the Elizabeth home of her sister , Gloria Francisco , and brother

- in

- law , Jesus Franci sco . 1 In the early morning hours
of November 14 , 2010 , the doorbell ra ng and Feli ciano 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 , a nd 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
firs t
- 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
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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.

O n November 14 , 2010 , Gloria and Feliciano awoke to the sou nd
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 for mer 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 d oor , 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 F eliciano and she said it was defendant . Jesus4 A
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called the police and , after the y arrived , provided the m 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 " C rips "
gang. Defendant later moved to Newark and joined the " B loods "
gang. Rios ' s gang " boss " learned that defendant joined the Bl oods
and " gave [Rios] a gre en 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 . D etective 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 La isha 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
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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 throu gh 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 in to the apartment and Kirce saw defendant. About forty

five minutes later , Kirce lef t 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 " C rimestoppers " 3 based on information he
learned from Laisha. Kirce did not testify about what he told

C rimestoppers when he called.
Kirce returned to the Railroad Avenue a partment and " sat in the living r oom 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 descr ibed by Lord as a hotl ine " where people can make anonymous tips to the police regarding criminal activity. "6 A
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T he State introduced portions of Kirce ' s statement 4 to the police where he explained that while he was in the apartment , Kidanys retrieved a gun with a missing bullet f rom 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 " on e 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 S ergeant Jorge Jiminez
went to the Railroad Avenue apartment an d arrested defendant . They
also took K i danys , 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 pres ent 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 fee t 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
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" 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

P e na 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

n o 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 the re were three other occupants. Kidanys explained th at 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 hea d. " Defendant8 A
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said the shooting was over " family problems or something like
that ," and showed Kidanys a .22 caliber revolver and a bullet casing. D efendant also told Kidanys a guy was " bothering [defendant ' s] baby mom ," and that he rang the doorbell of the hom e where the shooting took place and shot the woman that opened the
door.
Feliciano ' s au topsy 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 t he
cause of Feliciano ' s death. Shaikh was qualified as an expert in forensic pathology.
Shaikh testified he reviewed Wall ' s autopsy report and made independen t findings based on his revi ew of photographs of the autopsy , the toxico logy report , and the record of Wall ' s investigation. Shaikh determined the cause of death was a " gunshot wound [to her] chest ," and th e manner of death was " homicide. "
Defense counsel objected to Shaikh ' s testimony , arguing it

was hearsay because it was ba sed 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
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an expert [] to rely upon other expert[s ' ] reports . . . in reaching his or her conclusions. "

D efen dant e xercised his right not to testify and did not present any witnesses. He was convicted on all counts. At sentencing , the court me rged 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 IMPROPERLY10 A
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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 confront ation was violated when Kirce testified
that he called the police based on information provided by L aisha. Defendant contends the testimony permitted the jury to infer that Laisha had knowledge implicating defendant i n Feliciano ' s murder , and that its admission requires reversal of his convictions. Before the challenged testimony , d efendant 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 t hat the testimony was
stricken.11 A
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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 narcoti cs. Id. at
266
- 67. The Court explained the h earsay rule does not prevent an officer from testifying that he took an action based " upon information received ," but that " when the officer becomes more12 A
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specific by repeating what some other person told him con cerning 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 debatab le 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 array s . A detective testified the

array s w ere assembled " based on information received. " Id. at 347. The Court found that a police officer may testify that he took an
action " based on informati on 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 35 2. " The ' common thread ' that renders testimony
about information received from non

- testifying third parties13 A
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inadmissible ' is that a police officer may not imply to the jury that he possesses superior knowledge , outside the record , that
incriminates the def endant. '" 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 sa me 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 co nstitutional 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 th e plain error standard. We will not

revers e 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 objection14 A
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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 erro r 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)).

H aving carefully reviewed the record , we are convinced
Kirce ' s testimony was not clearly capable of producing an unjust
result. R. 2:10
- 2 ; s e e also State v. Kemp , 195 N.J. 136 , 156 (2008) (finding that even where test imony may implicate " the concern s interdicted by Bankston ," a reversal is not required where the totality of the circumstances leads to the conclusion that
admissi on of the evidence was harmless ). Kirce ' s testimony that he called Crimestoppers based on information he received from

La isha does not logical ly 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
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Moreover , t here is no evidence showing Kirce knew the police were searching for defendant prior to h is conversation with Laisha.

I n his challenged testimony , Kirce said only that based on the information Laisha provided , he called Crimestoppers . T he e vidence 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 t est imony that he discussed " the situation " with Laisha and she said " a lady died in Elizabeth. " Th is 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
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Kirce ' s testimony suggested only what the jury knew from other
witness es , that the polic e 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 testim ony 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 g uilt , 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 stru ck 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 dete rmine 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 belo w or whether the error was first claimed upon appeal " ).17 A
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him as the shooter. Gonzalez and Pena established th at defendant
directed their travel to Gloria ' s home and that defendant went to
the door , stood in front of a woman , raised his hand s , 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. 2:1 0
- 2 ; Kemp , supra , 195 N.J. at 153
- 54. We also reject defendant ' s claim that Kirce ' s testimony
violated his right to confrontation. D efendant 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 Melendez

Diaz 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 cho o se as part of a reasonable18 A
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defense strategy to refrain from objecting to testimony tha t 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 unreasona ble 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 sugge sted 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 bee n identified as the shooter and that based
on that information , the poli ce 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 invited19 A
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waived his Confrontation Clause claim by failing to object to challenged testimony at trial).

III.
We next consider defendant ' s argum ent 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 relian ce on Wall ' s report and testimony detailing the report ' s findings constituted impermissi ble 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 inst ruction , "' 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) (citat ion 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
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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 29 1
- 9 2 , the C ourt held that under
certain circumstances " the State may present th e 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 in formation in the autopsy report without violating a defendant ' s confrontation rights. I bi d.

" [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 s ubstitute witness. " Id. at 317 (quoting State v. Roach , 219 N.J. 58 , 76
- 7 7 (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 autopsy21 A
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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 Sha ikh ' s independent review
of the evidence and did not violate defendant ' s right to
confrontation. See i d. 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 w here he simply parro ted Wall ' s autopsy report. 10 Shaikh referred to the autopsy r eport and testified concerning physical findings made by
Wall during the autopsy. Tho se portions of his testimony violated
defendant ' s confronta tion 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
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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. Sepa rate 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 . O ther evidence established that
Feliciano was shot in the chest and died imm ediately thereafter .
Moreover , the cause of Feliciano ' s death was not a n 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 , w e are not conv inced 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 the23 A
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parties agreed without objection to the following response to the j ury ' 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 f or 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 acquitt al. When a defendant fails to object to a jury charge at trial or a response to a jury question during deliberations , we review
fo r plain error , and " disregard any alleged error ' unless it is of such a nature as to have been clearly capable of producing a n 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
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is " [l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievou s 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 the25 A
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indictment did not expressly allege accomplice liability as lon g 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 , the re
was not a scintilla of evidence supporting a char ge of accomplice26 A
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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 sh ooter. 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 . T he 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 p ossibility of being convicted
of the lesser

- included offense of aggravated manslaughter. The

court charged the jury on the lesser

- included off ense of aggravated manslaughter , and reminded the jury it could convict defendant of either murder or aggravated manslaughter , or acquit defendant , in
its res ponse 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 the27 A
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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 crim e rather than no crime at all " ).
We hav e 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.