STATE of New Jersey, Plaintiff-Appellant v. Philip J. CASTAGNA, Defendant-Respondent.
No. A-4402-06T5
Superior Court of New Jersey, Appellate Division.
Decided May 12, 2008.
946 A.2d 602 | 400 N.J. Super. 164
Argued October 9, 2007.
Richard W. Berg, Trenton, argued the cause for respondent (Robin Kay Lord, attorney, Newtown, PA; Ms. Lord and Mr. Berg, on the brief).
Before Judges COLLESTER, C.S. FISHER and C.L. MINIMAN.
COLLESTER, J.A.D.
Pursuant to leave granted, the State appeals from the February 8, 2007, order of the trial court denying its motion in limine for admission of certain evidence under the exception to
Based on the plenary hearing and the State‘s offer of proof, the salient facts are as follows. Defendant Philip Castagna was Chief of Police of the City of Bordentown when he married Joyce Leopold in 1998. Joyce testified that on June 8, 2003 when she returned from her daughter‘s dance recital, she discovered that defendant had packed a suitcase and left the home. She called his mobile telephone, but there was no response. Within a day or so she changed the locks on the doors. Defendant returned to the home on June 13, 2003, and confronted Joyce outside. They argued, he accused her of cheating on him, and Joyce went in the house and locked the door. Defendant demanded to come inside and told her it was illegal to lock him out. Joyce testified defendant pounded on the back sliding doors and yelled, “I‘m going to get you and that goddamn little bitch of yours.” The following day Joyce noticed the door knob on the door from the house to the garage was missing. That evening she went to the police department and filed a complaint under the Prevention of Domestic Violence Act (PDVA),
On the evening of July 2, 2003, defendant visited Joyce‘s uncle, Santo Celia, with whom defendant had a good relationship. At the hearing, Celia testified that defendant told him that he had to surrender his police weapon because of the TRO, and he was afraid he would lose his job unless Joyce withdrew the complaint. He said he worked hard all his life and that if Joyce “continued fucking with my rights and my pension, I‘ll lose everything.” He said he still loved Joyce and needed Celia‘s help in conveying that to her. Later defendant became more agitated and said, “If you don‘t talk some sense into her you gonna see me on the front page of the Trenton Times.” Celia responded, “Philip, I‘m going to pretend I didn‘t hear that.” Defendant at one point said, “[T]hey took my guns away, but I can get another one.” Celia again told defendant, “I‘m going to pretend I didn‘t hear that.” Celia testified that while he knew defendant was agitated, he did not think defendant would do anything to Joyce or himself. At the end of the conversation Celia told defendant he would do what he could to help but could not promise anything. After talking to his wife, he decided not to get further involved.
On July 4, 2003, Joyce‘s home was slightly damaged by a fire, which was determined to be arson. A neighbor reported seeing an unidentified man with a gasoline can running from Joyce‘s yard and driving off in a van.
Four days later, on July 8, 2003, Celia‘s wife told Joyce that defendant came to her house and talked with her husband about their marital problems. The following day Joyce called Celia to learn more about his conversation with defendant. Perceiving some of defendant‘s comments to Celia as threats against her, Joyce signed a criminal
The prosecutor downgraded the charges in Joyce‘s criminal complaint to the disorderly persons offense of harassment,
While defendant‘s appeal was pending, Gary Hall, described as defendant‘s neighbor and friend, came forward to talk to the members of the Burlington County Prosecutor‘s Office. He told investigators he set the July 4, 2003 fire at defendant‘s request and that defendant later asked him to help him kill Joyce. Hall told investigators he did not want to be involved in a murder, and he agreed to cooperate and “wore a wire” to record conversations with defendant.
Defendant was indicted on May 2, 2005, for conspiracy to commit murder,
The State theorizes that defendant conspired to commit arson and kill his wife because she filed a domestic violence complaint which resulted in a TRO and later filed criminal charges which led to his suspension, conviction, sentence, and forfeiture of his public office. The State‘s motion in limine was for a determination that the following evidence was admissible under
It is a cardinal principle that evidence with probative value to a material issue is relevant.
Except as otherwise provided by these rules or other law, relevant evidence may be excluded if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence.
[
N.J.R.E. 403 .]
[E]vidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.
[
N.J.R.E. 404(b) .]
Even when the evidential proffer relates to a permissible purpose under
- 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.
In the instant case the trial judge excluded all the State‘s proffered evidence after finding the apparent prejudice outweighed the probative value and that other evidence would adequately serve the State‘s purposes. He rejected the proposed testimony of Joyce on the alleged domestic violence incident, stating:
[T]he Court does not find that that particular incident is of sufficient probative value that again would outweigh its inherent prejudice, again, to indicate that Mr. Castagna is a bad person. . . . [T]he probative value . . . is outweighed by its inherent prejudice, again, because there‘s other ways to prove the conspiracy in this case. And, again, the best evidence in this case is going to be Mr. Hall‘s evidence. . . .
The judge also excluded proof of both the TRO issued on June 15, 2003, and the FRO on August 5, 2003, for similar reasons:
[I] think the case law is relatively clear, that the presenting of temporary restraining orders, specifically [a] domestic violence restraining order, because of their inherent prejudice, must be viewed very carefully. . . . [M]y reading is that the Court frowns upon the admissibility of those pieces of evidence because they‘re highly prejudicial. . . . As to the final restraining order [ ] and the temporary restraining order. . . . [t]he Court finds that the probative value . . . is outweighed by its apparent prejudice for the simple reason — and this is going to be the finding as to all of the Court‘s findings as to the other elements in the matters that are before the Court, there is other evidence. . . . The best evidence in this case, and I‘ve kind of said this throughout this case, is the testimony of Mr. Hall. . . . It‘s the best evidence. And, when you weigh it against the reluctance on the part of the Courts in this state to admit final restraining orders and temporary restraining orders because of this — for their inherent prejudice clearly the probative value . . . of this particular evidence is not outweighed by its prejudicial effect.
The trial judge precluded the proposed testimony of Celia of his July 2 conversation with defendant by again concluding that the risk of undue prejudice outweighed its probative value as well as by finding that the evidence was not material since Celia believed none of defendant‘s statements were threatening.
Now, as to the defendant‘s conversation with Santo Celia, . . . I actually find his testimony to be relatively credible. . . . [T]he crucial portion of his testimony is that, in fact, he did not feel that [Joyce] was jeopardized. . . . [W]hether it was a reference to the weapons, reference to the Trentonian, the bottom line is, in fact, he did not take it as being threatening . . . I am sure if he thought that were the case he would have taken steps. . . . [I]f, in fact, this evidence was of such significance that, again, it would have overwhelming probative value as to some sort of propensity or as to some
sort of intent, Mr. Celia would have taken action. . . . So, again, because of the existence of other evidence in this case as to the existence of a conspiracy . . . and, again, that best evidence is Mr. Hall, the Court‘s going to find as to the conversation with Santo Celia that the probative value is outweighed by its apparent prejudice which is this is highly prejudicial stuff.
The trial judge next excluded evidence that defendant was suspended as police chief, stating that,
I‘m not so sure how that‘s relevant, to be honest with you, but, again, the Court‘s going to find that the existence of other evidence to show the existence of the conspiracy that it‘s probative value which I consider to be not that probative is . . . outweighed by its apparent prejudice.
The fact that defendant was convicted of disorderly persons offenses and was stripped of his public office was excluded based on the judge‘s finding of undue prejudice as well as the fact that the convictions were overturned on appeal.
[A]s to the May 7, 2004 conviction on disorderly person‘s offenses . . . the Court finds . . . the fact that the conviction was overturned [ ] severely negates its probative value . . . and even though the jury would be told that, in fact, the conviction was overturned, . . . the prejudice would outweigh its apparent probative value.
The court also rejected the State‘s alternative argument that the proffered evidence was admissible as res gestae evidence.
[I]f you take a look at [
N.J.R.E. 803(c)(1) and (2)], one of the elements in those rule[s] is that because it goes to basically some issues involving mental state, that‘s the reason why there is an exception to the Hearsay Rule, that there must be in sufficient time and place in order to add to its credibility. . . . [T]he basic connection here is that it has to be in sufficient time. . . . [A]ll this evidence is 2003 except for the 2004 conviction . . . it‘s not sufficient in time to, in fact, to include it as res gestae evidence.[A]gain, you‘d still have to take a look at it within the 403 context . . . and again, 403 is probative versus prejudice. And, because of the existence of the best evidence in this case, which happens to be the testimony of Mr. Hall — and I know there‘s damaging information that — on those tapes. And, again, if, in fact, the jury believes the evidence on those tapes, [there is] more than sufficient enough evidence for the State to prove that there‘s a conspiracy, but these incidents would be just cumulative and what I sometimes call piling on, which is not the purpose of 403, 404b, or 803. So, for all those reasons the application for the admissibility of the six incidents matters including . . . decisions of the Court together with the final restraining order is denied.
All evidentiary circumstances which are relevant to or tend to shed light on the motive or intent of the defendant or which tend fairly to explain his actions are admissible in evidence against him although they may have occurred previous to the commission of the offense. [State v. Rogers, 19 N.J. 218, 228, 116 A.2d 37 (1955) (quoted with approval in Covell, supra, 157 N.J. at 565, 725 A.2d 675).]
See also State v. Carter, 91 N.J. 86, 106, 449 A.2d 1280 (1982).
In this case, motive is relevant and material under the State‘s theory that Joyce‘s assertion of domestic violence followed by the filing of her complaint and the issuance of the TRO led defendant to believe that both his job and his pension were in jeopardy unless she recanted, as he indicated in his conversations with Celia. Thereafter, the criminal complaint signed by Joyce led to his suspension, conviction, and forfeiture of his job. According to the State‘s theory, all of these sequential events gave rise to a motive to seek revenge and conspire to kill Joyce. The State argues that exclusion of the evidence handcuffs the prosecution by depriving it of showing the jury why this otherwise law-abiding chief law enforcement officer would plot to murder his wife. We agree that in this case the preclusion of evidence of motive would hinder the State‘s case. It would be the equivalent of a production of MacBeth without the witches. Accordingly, the State‘s proffer satisfies the first part of the Cofield test of admissibility as relevant to the material issue of motive.
The State‘s proffer also satisfies the second part of the Cofield test, which states that the other-crimes evidence must be “similar in kind” and “reasonably close in time” to the crime charged. But when motive is the object of the proffered evidence, similarity is not a requirement for admissibility. Williams, supra, 190 N.J. at 131-32, 919 A.2d 90; State v. Collier, 316 N.J.Super. 181, 194, 719 A.2d 1276 (App.Div.1998), aff‘d o.b., 162 N.J. 27, 738 A.2d 369 (1999). With regard to whether the evidence was reasonably close in time, the event spanned a period of less than one year from alleged acts of domestic violence on June 13, 2003 to the May 7, 2004 sentence date when defendant‘s position as police chief was forfeited. Our courts have found the “reasonably close in time” aspect to be satisfied where there were longer periods of time between the prior act and the present charge. See, e.g., State v. Krivacska, 341 N.J.Super. 1, 41, 775 A.2d 6 (App.Div.), certif. denied, 170 N.J. 206, 785 A.2d 435 (2001), cert. denied, 535 U.S. 1012, 122 S.Ct. 1594, 152 L.Ed.2d 510 (2002) (sexual assaults about two years apart were “reasonably proximate in time“). Furthermore, the evidence is proffered as an interrelated series of events over the course of about a year leading to defendant‘s criminal acts. See State v. Baluch, 341 N.J.Super. 141, 192, 775 A.2d 127 (App.Div.), certif. denied, 170 N.J. 89, 784 A.2d 721 (2001).
The third part of the Cofield test requiring clear and convincing evidence of the prior act or acts is satisfied since the State‘s proofs relate to filed complaints and judicial orders as well as to the testimony of Joyce and Sam Celia which the trial judge accepted for purposes of the Cofield test.
Thus, the major issue sub judice relates to the fourth part of Cofield, which
In holding that the probative value of the proffers by the State were outweighed by their apparent prejudice, the trial judge placed great emphasis on his conclusion that other evidence, namely the trial testimony of Hall, would serve the purpose by proving the criminal conspiracy. The judge correctly noted that as part of the balancing test for 404(b) evidence, a court must consider whether other, less prejudicial evidence will adequately prove the material issue sought to be proved by the
In evaluating the considerable weight attached by the trial judge to Hall‘s projected testimony, we are hampered by the absence in the record presented to us of Hall‘s grand jury testimony, any statement made by him, any transcript of conversations between Hall and defendant, or even a synopsis of Hall‘s projected testimony. Furthermore, the record reflects that the trial judge also lacked any testimony or statements by Hall at the time of his
In addressing the State‘s proffers in the context of the balancing test of
Turning to the State‘s proffers, we first consider Joyce‘s testimony of the events of June 8 and June 13, 2003, which led to her domestic violence complaint and the issuance of the TRO two days later. Evidence of a history of abuse of a victim by a defendant has been held admissible to prove motive. See Engel, supra, 249 N.J.Super. at 372-74, 592 A.2d 572; State v. Ellis, 280 N.J.Super. 533, 546-47, 656 A.2d 25 (App.Div.1995). However, in this instance the facts of defendant‘s alleged domestic violence are not relevant or necessary
On the other hand, the TRO is very relevant and material to the State‘s theory of motive since the State contends its issuance was the impetus for defendant to ask Hall to commit arson and later led to the criminal charges filed by Joyce against defendant, which in turn culminated in the forfeiture of defendant‘s job as police chief and loss of his pension. Under our law, the admission of domestic violence restraining orders as
Admission of the order could have prejudiced unduly defendant by bolstering the victim‘s testimony regarding defendant‘s prior bad acts. A jury could interpret the order as a judicial imprimatur on the victim‘s testimony. The order creates the inference that if a court found defendant guilty of domestic violence in a prior proceeding, that defendant is more likely guilty of the present terroristic-threat charges. . . . Accordingly, we hold that the trial court should have severed the charge on terroristic threats to kill from the trial of the contempt of the domestic violence restraining order.
[Id. at 343, 678 A.2d 694.]
The Supreme Court directed that when the contempt of the domestic violence restraining order and the underlying criminal offense arise from the same criminal event, the charges should be tried sequentially with the underlying offense tried first. Ibid. See also State v. Lozada, 357 N.J.Super. 468, 815 A.2d 1002 (App.Div. 2003) (reversing denial of defendant‘s motion to sever a charge of stalking and contempt of a restraining order). The Court directed that the restraining order was inadmissible at the first trial except to impeach the defendant if he testified. Chenique-Puey, supra, 145 N.J. at 343, 678 A.2d 694. However, the Court carved out an exception, stating that a restraining order was admissible at the trial of the underlying offense when it was an essential element of the crime. Id. at 342, 678 A.2d 694.
In State v. Silva, 378 N.J.Super. 321, 875 A.2d 1005 (App.Div.2005), we applied the exception in a case where the defendant was charged with burglary and aggravated assault as well as contempt of a domestic violence restraining order. The contempt charge was severed and the trial proceeded on the burglary charges. The trial judge precluded the State from introducing evidence of the existence of a TRO in spite of the State‘s argument that without that evidence it would be unable to prove a necessary element of the burglary charge, namely that the defendant was not licensed or privileged to enter the residence he formerly shared with the victim. See
There is no need, however, for the jury to know the legal basis for the issuance of the restraints. In fact, to avoid any possibility of mischievous speculation, the trial court should instruct the jury, using clear and emphatic language, that they are not to engage in any conjecture as to the legal or factual basis for the restraints. The origin of these legal limitations is simply irrelevant to the question of whether the State has proven defendant guilty of burglary beyond a reasonable doubt.
Evidence of the restraints, therefore, must be presented to the jury in a sanitized fashion, stripped of any connection to any incident of domestic violence.
[Id. at 327, 875 A.2d 1005.]
We also acknowledged the potential prejudice in the admission of the TRO document and directed it to be sanitized to exclude connection to an act of domestic violence.
Redacting the original TRO to delete any reference to a domestic violence incident is not practical, however. The form of order used by the Family Part is not susceptible to this type of modification.
The alternative is for the judge presiding over the criminal trial to describe accurately for the jury, as a given fact, the existence and scope of the relevant restraints, while omitting any reference or link to a prior act of domestic violence. In so doing, the judge must also instruct the jury that the State remains obligated to prove, beyond a unreasonable doubt, each and every element of the crime of burglary. The goal is to afford the State a fair opportunity to present vital evidence to the jury, without causing prejudice to defendant.
[Id. at 327-28, 875 A.2d 1005.]
The case at bar is unlike Silva since the TRO is not necessary to prove an element of the underlying crime charged, but, as we have noted, it is necessary for the State‘s proof of motive. Support for its admissibility is found in our decision of Amodio, supra, 390 N.J.Super. at 313, 915 A.2d 569. There, defendant was convicted of felony murder in the arson death of his former paramour and her son. The paramour had earlier obtained a restraining order which forced defendant out of the house he bought a few months before. After a neighbor reported the fire, defendant was found “smoldering” in the driveway. Defendant made no objection to the TRO and testified that he was at the house with his paramour‘s consent. We rejected defendant‘s claim of error in the trial judge‘s instruction on the jury‘s consideration of the TRO. In so holding, we stated that proper use of the TRO included not only impeachment of the defendant but also proof of defendant‘s motive to commit the crimes charged.
The instruction was entirely consistent with
N.J.R.E. 404(b) . . . [D]efendant‘s motive was a material issue in dispute. He testified that he did not kill Lisa and did not start the fire that took Kallin‘s life. Clearly, the credibility of these statements was at issue. Furthermore, the temporary restraining order provided evidence that defendant may have been motivated to commit the crimes because Lisa had obtained the order, which barred him from having any contact with her and forced him to leave the house he had recently purchased.[Id. at 330, 915 A.2d 569 (emphasis added).]
We conclude that evidence of the TRO should be admitted with careful instruction
We also find that defendant‘s conversation with Celia is clearly relevant to the State‘s motive thesis. Celia testified that defendant was upset because Joyce‘s domestic violence complaint and the TRO affected his job as police chief since he had to surrender his police weapon. Defendant‘s comments as to what could happen if Joyce did not drop the domestic violence action were perceived by her as threats and caused her to file the criminal complaint against defendant, which later led to his suspension, conviction and forfeiture of his job.
Moreover, these statements by defendant were admissible under
We disagree with the trial court‘s analysis that the probative value of the defendant‘s conversation with Celia was reduced by Celia‘s testimony that he did not consider defendant‘s statements to constitute threats against Joyce. First of all, Joyce obviously thought that defendant was threatening her, for she filed a criminal complaint based on the comments. More significantly, the issue before the trial judge was admissibility, and it is for the jury to determine what weight, if any, to give to the comments. Finally, we find no basis to exclude the conversation between defendant and Celia under either
While we hold that the TRO is admissible under
On the other hand, the fact that Joyce filed criminal charges against defendant after the July 4, 2003 fire, which resulted in his suspension, is clearly related to motive under the State‘s theory if those events occurred prior to defendant‘s entry into the conspiracy to kill Joyce. On that assumption we find the evidence is admissible, and the jury is to be instructed that both the complaint and the suspension
To reiterate, we affirm the exclusion of evidence of the alleged acts of domestic violence and the FRO. We reverse and hold admissible the State‘s proffer of evidence as to the TRO, the statements of defendant in his July 2, 2003, conversation with Celia, the criminal charges filed by Joyce on July 12, 2003, as well as defendant‘s conviction on the downgraded disorderly persons charge on May 7, 2004, and the sentence terminating him as police chief by statutory forfeiture of his office.
Because of our determination as to admissibility of the State‘s evidential proffers under
In this case, however, the State‘s various proffers were not “woven into the fabric of the planned crime,” State v. Mule, 114 N.J.L. 384, 392, 177 A. 125 (E. & A.1935), or “like the Master‘s robe . . . of one piece, without seam, woven from the top throughout,” Robertson v. Hackensack Trust Co., 1 N.J. 304, 312, 63 A.2d 515 (1949). Rather, they were disparate events, not part of the crimes charged, and thus not part of the res gestae.
Affirmed in part. Reversed in part.