STATE OF NEW JERSEY v. J.M., JR.
DOCKET NO. A-2562-13T2
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
November 21, 2014
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION; APPROVED FOR PUBLICATION November 21, 2014 APPELLATE DIVISION
Argued September 9, 2014 - Decided November 21, 2014
Before Judges Fisher, Nugent and Accurso.
On interlocutory appeal from Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 13-01-0072.
Audrey M. Curwin, Senior Assistant Prosecutor, argued the cause for respondent (Sean F. Dalton, Gloucester County Prosecutor, attorney; Ms. Curwin, of counsel and on the brief).
The opinion of the court was delivered by
FISHER, P.J.A.D.
We granted leave to appeal - and now reverse - an order which authorized the State‘s use at trial of “other-crimes” evidence regarding similar accusations made against defendant in Florida six years earlier. What makes this different from most other applications of
I
Defendant is charged with one count of second-degree sexual assault,
We granted leave to appeal and reverse not only because, as discussed in Section II, a proper Cofield analysis compels that result but also because, as discussed in Section III, acquittal-evidence should never be admitted in a later prosecution when offered to show that the prior offense actually occurred.
II
Cofield requires that the proponent of other crimes evidence2 demonstrate:
- The evidence of the other crime must be admissible as relevant to a material issue;
- It must be similar in kind and reasonably close in time to the offense charged;
- The evidence of the other crime must be clear and convincing; and
-
The probative value of the evidence must not be outweighed by its apparent prejudice.
[Ibid.; see also State v. Carlucci, 217 N.J. 129, 141 (2014).]
All four of these factors must support the admission of the evidence in question. State v. P.S., 202 N.J. 232, 255 (2010).3
In seeking reversal, defendant chiefly argues the first and fourth factors militate against admission of A.W.‘s testimony.
We conclude that, in fact, none of the four factors supports use of the testimony in question.4
A. Relevance
As to the first factor, we agree with defendant that A.W.‘s testimony about what allegedly occurred to her six years earlier is not probative of defendant‘s alleged (1) “motive,” or (2) “intent,” suggestive of (3) a “plan” to commit the offense for which he has here been charged, or admissible to demonstrate (4) “absence of a mistake.” Although the trial judge permitted use of the evidence by invoking all these purposes, the State has failed to demonstrate or persuade how any apply here.
1. Motive
Motive evidence is that which suggests the accused committed a specific offense. See, e.g., State v. Mazowski, 337 N.J. Super. 275, 283 (App. Div. 2001); M.C. Slough & J.W. Knightly, Other Vices, Other Crimes, 41 Iowa L. Rev. 325, 328 (1956) (stating that “motive supplies the reason that nudges the
will and prods the mind to indulge the criminal intent“). By way of example, in State v. Marrero, 148 N.J. 469, 489 (1997), the Court held that the defendant‘s knowledge that the victim might file new charges against him evinced a motive for the victim‘s murder. See also State v. Williams, 190 N.J. 114, 129-30 (2007) (affirming admission of consciousness-of-guilt evidence, including “lying to police, inducing others to lie, and tampering with evidence“); State v. Baker, 400 N.J. Super. 28, 45-46 (App. Div. 2008), aff‘d o.b., 198 N.J. 189 (2009) (holding that the defendant‘s failed bank robbery was relevant to show a motive for the charged store robbery the following day).
A motive theory, however, will not be permitted “when the ‘motive’ is so common that the reasoning that establishes relevance verges on ordinary propensity reasoning or when ‘motive’ is . . . just another word for propensity.” 1 McCormick on Evidence § 190 (Broun ed., 7th ed., 2013). For example, proof of a defendant‘s drug addiction to show motive for committing a burglary or theft is inadmissible on the theory that drug addicts are perpetually in need of money. Mazowski, 337 N.J. Super. at 282 (finding such a motive “indistinguishable from a claim that defendant has a ‘disposition,’ or general propensity to commit crimes, which is precisely what
2. Intent
When offered as a means of proving intent, other-crimes evidence is often indistinguishable from motive. It is admissible in this context only when disclosing a mental intention or purpose in committing a particular offense. See State v. Mulero, 51 N.J. 224, 228 (1968). Accordingly, other-crimes evidence may be probative “to evidence the intent with which [the defendant] did the act or to negative the existence of an innocent intent.” Ibid. Examples recognized in our case law reveal the extent of its application. In Mulero, evidence of prior assaults upon the victim was found admissible to show an intent to later inflict serious bodily injury to kill the
victim in the charged matter. Ibid. In an arson prosecution, we held that the defendant‘s prior threats to his landlord if he raised the rent were admissible to show an intent to burn down the landlord‘s building. State v. Schubert, 235 N.J. Super. 212, 224 (App. Div. 1989), certif. denied, 121 N.J. 597 (1990); see also State v. Davidson, 225 N.J. Super. 1, 10-13 (App. Div.), certif. denied, 111 N.J. 594 (1988).
These examples reveal that proof of intent in this context requires a closer nexus between the prior crime and the charged offense than may be fairly or logically asserted here. In each of these examples, the victim was the same person. That, of course, is not the case here. And, although other-crimes evidence to show intent need not always relate to the same victim, there must nevertheless be some other logical relationship. See State v. Covell, 157 N.J. 554, 566-67 (1999) (admitting the defendant‘s earlier statement that he was only interested in young girls to show his intent to later lure a child-victim into a car); Marrero, 148 N.J. at 485 (admitting evidence of a sexual assault to rebut evidence that sexual relations were consensual in a later aggravated sexual assault and murder prosecution).
The State has not shown a sufficient nexus between the alleged Florida offense and the matter at hand. The alleged victims are different and no logical relationship (other than the suggestion of a propensity) has been revealed. As said in a similar context in State v. Stevens, 115 N.J. 289, 307 (1989), the invocation of “intent” as a ground for the admission of this type of evidence requires “an enhanced degree of precision” not present here.
3. Plan
With regard to “plan” - the third ground asserted by the State and endorsed by the trial judge - the proponent must demonstrate the evidence “proves the existence of an integrated plan, of which the other crimes and the indicted offenses are components.” Id. at 305-06; see also State v. Louf, 64 N.J. 172, 178 (1973) (holding that other-crimes evidence must “establish the existence of a larger continuing plan of which the crime
Moreover, even if it could be said, as have some courts of other states, that “plan” possesses a broader scope in sexual abuse and domestic violence matters, 1 McCormick on Evidence, supra, § 190, the lack of “sufficient common features” negates the argument that the prior event and the charged offense “are manifestations of a common design or plan.” People v. Ewoldt, 867 P.2d 757, 771 (Cal. 1994); see also State v. DeJesus, 953 A.2d 45, 75-76 (Conn. 2008). The State argues similarities in that in both matters defendant was engaged as a masseuse and his alleged victims were female customers. No other similarity, however, has been suggested; the State has not argued the alleged victims have similar appearances, that defendant‘s conduct was so similar as to constitute signature offenses,7 or that there was a peculiarity about the two alleged offenses that would provide a sufficient link and negate the potential that a
jury would view the prior alleged offense as revealing defendant‘s propensity to commit such an offense.
4. The Absence of Mistake
The State argues that the evidence is admissible to prove absence of a mistake in the conduct charged here. Defendant, however, has asserted he will not assert mistake at trial, negating absence of a mistake as a basis for admitting A.W.‘s testimony. See State v. Darby, 174 N.J. 509, 518 (2002) (holding that other-crimes evidence must be relevant to prove a fact genuinely in dispute).
To summarize our view of this first Cofield factor, the allegation that defendant was motivated, intended or planned to molest E.S. because he allegedly did something similar six years earlier is simply another way of asserting propensity to engage in such conduct - the very contention
B. Similarity and Temporality
The second Cofield factor requires that other-crimes evidence be “similar in kind and reasonably close in time to the offense charged.” 127 N.J. at 338. To be sure there are similarities. As we have mentioned, in both instances defendant was working as a masseuse and the alleged victims were female customers. But the similarities there end.
If we assume the truth of both E.S.‘s statement and A.W.‘s testimony, nothing suggests such a similarity as to represent signature crimes or a distinctive modus operandi. E.S. has asserted that, without warning, defendant digitally penetrated her while he exposed himself; on the other hand, A.W. testified that defendant asked whether she wanted to continue the massage, touched her without objection for fifteen to thirty seconds, and stopped upon her request.
Cofield also held that courts should consider whether the two events were “reasonably close in time.” 127 N.J. at 338. Although the application or weight to be given to this factor has since been limited, see State v. Rose, 206 N.J. 141, 163 (2011) (stating that “[t]he second prong of the Cofield test, addressing the similarity and temporality of the evidence, is not found in Rule 404(b), and is not universally required“); Williams, 190 N.J. at 131 (recognizing the second factor‘s “usefulness as a requirement is limited to cases that replicate the circumstances in Cofield“), to complete our analysis, we merely note that six years separated the two events, a fact that does not strengthen the State‘s argument. See, e.g., State v. Sheppard, 437 N.J. Super. 171, 200 (App. Div. 2014) (observing that a prior offense related to “comments made by defendant at least five years before the stabbing, and possibly much longer“).
To the extent applicable, this second factor does not support admission of A.W.‘s testimony.
C. Clear and Convincing
Notwithstanding our obligation to generally defer to a trial judge‘s exercise of discretion in such matters, State v. Erazo, 126 N.J. 112, 131 (1991), the third factor - that the other-crimes evidence be “clear and convincing” - does not favor admission. We are mindful the trial judge found A.W. credible. And, because he found her credible, the judge concluded the evidence was clear and convincing. But we find this analysis of the third factor to be inadequate because the judge gave no weight to defendant‘s acquittal of the Florida charges based on A.W.‘s testimony.
The trial judge was aware of the acquittal but found the Florida jury‘s verdict was not binding for these sole reasons:
I find her testimony to be very credible and I find her to be very credible. And I do find that her testimony, in spite of the fact of the acquittal - I don‘t know what happened at the State trial in Florida. I don‘t know how the case was
presented, what the jury may or may not have thought. I don‘t know. And it, frankly, has no impact on me because I heard the testimony of the witness. I find her to be credible, and I find that evidence of the conduct to be clear and convincing. So the third prong has been met.
It is conceivable, and perhaps this is what the trial judge meant, that the Florida jurors - assuming we could look into their minds or had access to their deliberations - found A.W.‘s testimony to be “clear and convincing” but not persuasive beyond a reasonable doubt. The superficial logic of such an approach, however, is not only based on speculation but largely misses the point of the third factor.
The argument that acquittal-evidence may be admitted because it satisfied a judge‘s application of the clear and convincing standard even though a jury found it did not suggest the defendant‘s guilt beyond a reasonable doubt is far too expedient and all too conveniently discards the significance of the acquittal. The third factor was intended as part of a screening process,8 not a loophole for resurrecting evidence found insufficient for a conviction. Cofield‘s screening
process occurred when a Florida jury found that what the State now claims was a prior criminal offense was not, in fact, a criminal offense.9
D. The Weighing Process
The fourth Cofield factor requires a determination that “[t]he probative value of the evidence must not be outweighed by its apparent prejudice.” Cofield, 127 N.J. at 338. Without repeating what has already been stated,
the jury‘s inevitable assumption that defendant has a propensity to engage in such conduct10 - as to render it inadmissible.
III
Although, as we have demonstrated, a routine Cofield analysis leads to the exclusion of this other-crimes evidence, we also conclude that in these and other similar circumstances acquittal-evidence should never be admitted pursuant to
A
We start by conceding that our view is not consistent with some earlier decisions that have considered the State‘s use of acquittal-evidence as other-crimes evidence. In fact, in State v. Yormark, 117 N.J. Super. 315, 337 (App. Div. 1971), certif. denied, 60 N.J. 138, cert. denied, 407 U.S. 925 (1972), a panel held that evidence offered, pursuant to former Evidence Rule 55, against two of the defendants in a prior prosecution - at which they were acquitted - was properly admitted in a later prosecution because it suggested “guilty knowledge, a corrupt intent, and involvement by the defendants in a common scheme or plan to defraud the
insurance company in this case.” The court observed that the admission of evidence of “other alleged offenses for which the defendant had been previously acquitted, is upheld by the great weight of authority throughout the country.” Ibid. This approach was soon after adopted by another panel in Schlue, 129 N.J. Super. at 355.11 In addition, Yormark correctly
The rationale underlying the decisions in Yormark and Schlue - were we inclined to distinguish them and adopt a more nuanced view of this issue - is that although a defendant must not again be put to the burden of defending against the same charge after having been acquitted, some evidence in the earlier prosecution - not necessarily precluded by the prior jury‘s verdict - may be admitted if it has relevance to the current prosecution. In other words, evidence from an earlier acquittal
(continued)
State v. Scott, 413 S.E.2d 787, 788-89 (N.C. 1992); State v. Holman, 611 S.W.2d 411, 413 (Tenn. 1981); Kerbyson v. State, 711 S.W.2d 289, 290 (Tex. Ct. App. 1986).
may be admissible in a later prosecution if offered not to suggest defendant‘s guilt in the earlier matter but as evidence of a particular event or transaction not necessarily rejected as a fact by the earlier jury. Also, such evidence might be admissible if the mere fact that the defendant was facing prosecution in the earlier matter is relevant for some purpose in the later prosecution. For example, in Schlue, 129 N.J. Super. at 353-55, we found no error in the admission of evidence offered against the defendant in an earlier bribery prosecution - at the conclusion of which he was acquitted - to demonstrate a motive for obstructing justice in that earlier investigation when so charged in a later indictment. The difference between those situations and the question presented here is that the State in the earlier cases appears not to have been attempting to prove motive by showing the defendant‘s guilt in the earlier matter, only that motive was suggested by facts offered during the earlier proceeding that may not have been rejected by the prior jury.
The State‘s proffer is markedly different here. A.W.‘s testimony has been offered to show that defendant, on an earlier occasion, engaged in unlawful sexual contact. Of course, defendant cannot now be convicted of sexually assaulting A.W.,14 but it is the State‘s desire to prove the very fact the State of Florida was unable to prove as a means for convicting defendant of the charges in question here. In short, unlike what appears to have occurred in Yormark and Schlue, defendant is again being put to the task of defending against A.W.‘s allegations. Stated another way, for the A.W. allegations to have any relevance in this case, the jury would have to conclude that what A.W. alleged had in fact occurred in the face of another jury‘s contrary verdict. Accordingly, even if we were bound to Schlue or Yormark - which, of course, we are not, see Brundage v. Estate of Carambio, 195 N.J. 575, 593-94 (2008); State v. Peralta, ___ N.J. Super. ___, ___ (App. Div. 2014) (slip op. at 4-5) - we would find that the rule those cases
These troubling circumstances, and others to which we shortly turn, further buttress our conclusion that acquittal-evidence should not be permitted to show a defendant‘s guilt on the earlier occasion. In short, we agree with the common-sense conclusion reached by the Supreme Court of Tennessee when it considered an attempt to prove that the defendant, who operated
a jewelry store, had failed to return a watch to its owner (Jenkins) upon the promise to repair, by offering evidence that he had done precisely the same thing to another customer (Morgan) who brought her watch to the defendant to be repaired; the defendant had been tried and acquitted of Morgan‘s allegations. In these circumstances, the Tennessee Court held:
Having been acquitted of the alleged prior crime, the defendant cannot be tried a second time for that offense; yet, if evidence of such alleged prior crime is admitted in the case on trial, the defendant is required to do just that; at the second trial he must defend himself not only against the charge at hand but also against inferences that the jury might draw from the evidence that he committed the prior crime although he has been acquitted of it. . . . [E]vidence that the defendant committed an alleged crime other than that for which he is on trial should not be admitted when he has been acquitted of such alleged other crime.
This is the only approach that adequately respects the presumption of innocence and the “particular significance” the law attaches to an acquittal. United States v. DiFrancesco, 449 U.S. 117, 129, 101 S. Ct. 426, 433, 66 L. Ed. 2d 328, 340-41 (1980); United States v. Scott, 437 U.S. 82, 91, 98 S. Ct. 2187, 2194, 57 L. Ed. 2d 65, 74 (1978). Although such an event does not precisely generate a double jeopardy violation, see Dowling, supra, 493 U.S. at 348-49, 110 S. Ct. at 672, 107 L. Ed. 2d at 717-18, we do hold that the issue is so instinct with this particular constitutional guarantee as to warrant the exclusion of this evidence.
B
We also find the order under review troubling and unsustainable because of a dangling question the trial judge did not consider: if the evidence is admitted, should the jury be told that defendant was acquitted of charges stemming from A.W.‘s allegations? In this regard, we again disagree with Schlue, which held that a jury should not be informed of the acquittal lest the door be opened “to a full collateral investigation into what transpired at the former trial and why the first jury found as it did.” 129 N.J. Super. at 356.15
C
Additional constitutional concerns counsel against the admission of acquittal-evidence.
At the risk of complicating what a principled application of Cofield compels, we believe the same result is warranted by a practical analysis of the problem when played out further in the prosecution. This is demonstrated by considering how a jury in such a situation should be instructed.
Our Legislature has spoken about the burdens applicable to various aspects of a criminal prosecution. In
At first glance, it may be said that this statute begs the question by failing to provide a precise response to the following: to what degree of certainty must the State prove a prior crime offered for a reason permitted by
This subject has garnered little attention in our decisions. Noteworthy is State v. Wilson, 158 N.J. Super. 1, 10 (App. Div.), certif. denied, 79 N.J. 473 (1978), where it was held that an instruction that a jury find the prior offense to have occurred by clear and convincing evidence was a “higher burden of proof than was necessary” and placed “an unnecessary burden on the State‘s case.”16 It would appear to us that Wilson was essentially overruled by Cofield; that is, if other-crimes evidence must be found by the gatekeeper to be “clear and convincing” then the jury should, at the very least, be required to find that the other crime occurred by clear and convincing evidence. We find no logic in allowing a jury to find a fact on a lesser standard than applied when its admission was sought.
We observe that the model jury charges utilized in our criminal courts also beg the question, stating only that a jury cannot give any weight to other-crimes evidence unless “satisfied” of the other crime‘s commission. Model Jury Charge (Criminal), “Proof of Other Crimes, Wrongs, or Acts (
To be sure, not every piece of evidence offered by the prosecution need be scrutinized by use of the reasonable-doubt standard. See Patterson, supra, 432 U.S. at 207, 97 S. Ct. at 2325, 53 L. Ed. 2d at 290; Gross, supra, 121 N.J. at 15. We would, however, suggest that consideration of the constitutional ramifications of such instructions must be carefully weighed in instances, such as this, where the State seeks to convict in large measure because of the accused‘s alleged commission of a prior offense.17 In many instances, and we believe this is one, the admission of other-crimes evidence without an instruction to the jury that the prior offense be proven beyond a reasonable doubt would invite a conviction in violation of the principles discussed in Winship, supra, 397 U.S. at 363-64, 90 S. Ct. at 1072-73, 25 L. Ed. 2d at 375, and State v. Hill, 199 N.J. 545, 558-59 (2009).
At oral argument in this court, the State insisted upon the importance of A.W.‘s testimony, referring to the case without it as a classic “he said/she said” circumstance; we interpret this to mean that the State questions its ability to prove defendant‘s guilt beyond a reasonable doubt without this other-crimes evidence.
To be clear, we do not suggest all other-crimes evidence must be proven beyond a reasonable doubt. Our comments are limited to the present case, and cases like it, where there is little question that other-crimes evidence will play a pivotal role in the adjudication of guilt.18
D
The reasonable-doubt standard, which breathes life into the presumption of innocence, is vital to our criminal justice system. Standing as a bulwark against criminal convictions based on factual error, the reasonable-doubt standard prevents “the moral force of the criminal law” from being “diluted” by a standard “that leaves people in doubt whether innocent men are being condemned,” and contributes to “our free society” the confidence that “every individual going about his ordinary affairs” may possess that the government “cannot adjudge him guilty of a criminal offense without convincing a proper factfinder of his guilt with utmost certainty.” Winship, supra, 397 U.S. at 363-64, 90 S. Ct. at 1072-73, 25 L. Ed. 2d at 375; see also Hill, supra, 199 N.J. at 558-59. These principles inform our conclusion that acquittal-evidence, in a setting like this, could never be admitted in a subsequent prosecution. When such evidence cuts so close to the heart of the adjudication of guilt, the jury would have to be instructed to find that the prior alleged crime occurred beyond a reasonable doubt. And, because in that circumstance another jury would have found the prior offense did not occur beyond a reasonable doubt, a subsequent jury would be foreclosed from reaching a different result.
Ultimately, acquittal evidence should not be admitted in the present circumstances because the process envisioned by the order under review gives insufficient weight to the particular significance assigned to an acquittal, DiFrancesco, supra, 449 U.S. at 129, 101 S. Ct. at 433, 66 L. Ed. 2d at 340-41, and because of the many dangers inherent in its use. In this regard, we agree with Justice Brennan‘s cataloging of these inherent vices in his dissenting opinion in Dowling. Among others, Justice Brennan emphasized these two chief concerns:
First, “[o]ne of the dangers inherent in the admission of extrinsic offense evidence is that the jury may convict the defendant not for the offense charged but for the extrinsic offense. This danger is particularly great where . . . the extrinsic activity was not the subject of a conviction; the jury may feel the defendant should be punished for that activity even if he is not guilty of the offense charged.” Alternatively, there is the danger that the evidence “may lead [the jury] to conclude that, having committed a crime of the type charged, [the defendant] is likely to repeat it.” Thus, the fact that the defendant is forced to relitigate
his participation in a prior criminal offense under a low standard of proof combined with the inherently prejudicial nature of such evidence increases the risk that the jury erroneously will convict the defendant of the presently charged offense. [Dowling, supra, 493 U.S. at 361-62, 110 S. Ct. at 679, 107 L. Ed. 2d at 726 (citations omitted).]
And, in this same context, we lastly recognize the applicability of the concept of fundamental fairness, which “require[s] procedures to protect the rights of defendants at various stages of the criminal justice process even when such procedures [are] not constitutionally compelled.” Doe v. Poritz, 142 N.J. 1, 108 (1995). Even if
IV
To summarize, we conclude that a principled Cofield analysis bars admission of this evidence, and the trial judge‘s contrary ruling constituted an abuse of discretion. We also conclude that acquittal-evidence should never be admitted in a later prosecution when offered to show that the prior charged offense actually occurred.
The order permitting the admission of A.W.‘s testimony is reversed, and the matter remanded for further proceedings. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION