*1
Michael J. (Robert Attorney General of Tufo, Del respondent for J. cause attorney). Jersey, New opinion of the Court was delivered
O’HERN, J. admissibility of evidence other-crime appeal This concerns in issue other than the prove 55 to a fact under Evidence Rule hold that the commit crime. We propensity of a defendant to ruling of a not abuse its discretion trial court did relevant and admissible subsequent illegal drug incident to be illegal possession of establishing defendant’s constructive for this subject is the drugs during earlier incident that an similarity the two find sufficient between prosecution. We involving to demonstrate relevance the same location incidents crime, propensity to commit of a not a to an element However, crime. judge’s limiting the trial instruction under jury’s generalities Evidence Rule 6 directed the attention to the of Evidence Rule 55 instead of the facts of this case. We therefore reverse the conviction below because we believe charge the absence of a more capacity tailored had the clear bring unjust about an result.
I During evening 14, 1985, August police a Newark tip detective received a from an informant that narcotics were being Street, (the sold on South 10th Copa Lounge outside The Lounge). investigated The detective the area and saw fifteen people approach defendant or his they brother as stood on the Lounge. persons sidewalk outside the After the talked with gave money, they defendant or his brother and them were car, registered mother, parked directed to a to defendant’s in a Lounge. people lot across the street from the were then making occupants seen “hand-to-hand” contact with the car’s leaving the area. Through the use of an undercover informant had who talked defendant, given money, with him and crossed the street packets occupants, receive aluminum-foil from the car’s two packets detective discovered that the aluminum-foil contained 15th, following morning, August cocaine. The Newark defendant, brother, police arrested his two and the men who sitting parked had been inside the car across the street from *4 Lounge night police the the before. When the arrested defen- dant, person he had on his and his had $236 brother $144. arraignment,
After defendant was admitted to and re- bail pursue turned to the streets of his Newark criminal activi- 4, 1985, September ties. On the same detective who had drugs again received the earlier information learned that were time, being Lounge. investigat- sold in front of the This when ing, people approach the detective saw six defendant and his they Lounge. brother as stood on the sidewalk front of the or his people, six defendant from each of the receiving cash On side- Lounge then return to the enter the would brother “exchange” with the Lounge to make an the in front of walk then leave exchange person would Following the person. Lounge. of the in front the area defendant and entered approached police informant Again a to the informant returned him. When the Lounge with detective, that defen- he said to meet prearranged location that defendant had packets given him aluminum-foil dant had packets Lounge. in the The persons from two other received as his defendant as well police arrested cocaine. contained Lounge given him the aluminum-foil who had cohorts in the two arrests, 125 alu- Following detectives recovered packets. cocaine, alu- containing as well as three packets minum-foil outside the had discarded packets that defendant minum-foil Septem- charged in the was not Lounge. Defendant’s brother ber incident. for indicted for violations and others were
Defendant 4th activities. second August 14th and conviction resulted defendant’s tried first and indictment was acquit- (The jury inexplicably drugs. conspiracy to distribute for the counts of the substantive ted defendant conspiracy to activities, him of convicted September 4th but acts.) overt commit the same August hearing trial of the before Rule 8 At an Evidence indictment, to introduce the evidence sought leave the State objec- Over defendant’s September 4th activities. defendant’s admissible other-crime evidence tions, court ruled the the trial 55, finding the evidence Rule against him under Evidence * * * plan, intent or such as facts issue to “other relevant knowledge.” September 4th other-crime trial, presented the the State
At incident. August 14th of the as as the evidence evidence well purpose of jury of the limited reminded The court twice
333 jury other-crime evidence and instructed the in accordance with Evidence Rule 6: concerning heard some in this case
Now, also defendant James testimony you regarding Cofield the incident which occurred on 1985. You will September recall and of course that that with other on that testimony persons 5th who are not here before this evidence cannot and should not Now, you. showing considered for the Mr. James Cofield’s by purpose you predisposi- charged tion to commit the crimes for which he is now and for which are you going guilt gentle- to consider his or innocence. Is now that ladies and clear, right. All men? Such evidence is admissible and can be considered only gentlemen, ladies and and whether deem it is credible and you, you worthy proving I belief for the and do limited some other limited, fact say purpose issue. conspiracy convicted defendant of to violate the laws, possession dangerous unlawful of a controlled sub- stance, possession and unlawful with intent to distribute. merged trial court count with the distribution count and sentenced five-year defendant concurrent terms of imprisonment conspiracy for the and distribution counts. decision, unreported Appellate
In an merged Division conspiracy with distribution count but otherwise affirmed judge defendant’s conviction. He One dissented. believed that the other-crime evidence was inadmissible because it tended to predisposition drugs.” show “no more than defendant’s to sell judge properly weigh He further believed the trial did not of the other-crime value accordance with Evidence Rule give 4 Evid.R. required nor “did he limiting appealed instruction.” Defendant on the basis of the 2:2-l(a). dissent below. R.
II recently principles applicable We have reviewed the Evidence Rule See State other-crime evidence under (1989). N.J. Evidence Rule 558 A.2d states :
Subject wrong to Rule evidence that a committed a crime or civil on a person is inadmissible to his to commit crime or occasion, specified disposition wrong civil as the for an inference that he committed a or basis crime civil *6 subject wrong to Rule such evidence is but, 48, on another occasion specified including motive, intent, to fact in issue plan, admissible some other prove knowledge, or of mistake accident. or absence identity, “ * * * “ compe is not ‘A short of the rule is it version [that] ’ ” * * another, prove by proving one crime State v.
tent to
Weeks,
396, 406,
(1987)(quoting
107
Ill
A.
parallels
“prevailing
Evidence
55
Rule
rule
common-law
throughout
supra,
United States.”
115
at
N.J.
299,
premise
prohibition
336 1992) (footnotes (Strong McCormick on Evidence at 798 4th ed. 190, ed.,
[ 1
§
omitted). ]
may
purposes
The limited
for which other-crime evidence
to,
include,
admitted
but are not limited
“establishment of a
crime, motive,
plan,
signature
or
and most
common scheme
impeach
takes
frequently,
the accused who
the witness
Weeks,
stand,
through
only
supra,
but
a conviction.”
107 N.J.
406-07,
1077; see,
Erazo,
126
e.g.,
at
526 A .2d
State v.
N.J.
130-31,
(1991) (prior
B. generic drug transactions, Because of the nature of prior subsequent or transactions can be introduced having jury propensity without focus on principal as the issue is less An acceptable clear. illustration of an use of other-drug-crime showing evidence would past that “a possessor likely spot marijuana is more under a chicken coop,” possessor and thus would not be an innocent later Moccia, 61, (1st occasion. United States v. 681 F. 2d Cir. 1982).
An excellent discussion of the use of Evidence Rule State, evidence in cases is set forth Harris v. 324 Md. 490, (1991). view, 597 2d 956 In by stating A. the Harris court’s the rule in exclusionary terms —evidence of other crime or wrongs generally is not admissible—its framers intended that exclusion, “Accordingly, the focus be on not inclusion. it will usual, exceptional, be the and not the case where the evidence substantially of other acts is bad relevant for reasons other proof than of criminal character.” at Id. A.2d “ Thus, Maryland courts ask whether the other offenses ‘show charge, relation to the main as to make connection such obvi ” propensity. ous’ on an issue other than Id. at 597 A. 2d State, 565, 115 (quoting Bryant at 963 207 Md. A.2d (1955)). example, apartment occupants charged For when are possession drugs, past with constructive posses evidence of occupants sion one of the will allow the to focus on the contrast, issue of propensity. rather than on In proof mere that an accused had sold narcotics on another occasion, especially occasion, distantly-related when it is a has special 503-04, no relevance to the issues. Id. at 597 A.2d at Thus, 963-64. other crimes evidence in the instant case “[t]he *9 338 ], showing no more than the sale of a similar controlled
[.Harris
dangerous
and
years
substance two
one-half
before the event in
question, possesses
special
no
relevance beyond general crimi
propensity
504,
nal
and should not have been admitted.” Id. at
One of the
“special
measures of such
relevance” will
similarity
often be the
of the offenses. See United States v.
(7th Cir.1991).
Wright,
Those analyses may be distilled into a rule general application in order to avoid the over-use of extrinsic evidence of wrongs: other crimes or 1. The the other crime must be admissible as relevant to a material issue; It must be similar in kind and close in time to the offense reasonably
charged; 3. The convincing; evidence of the other crime must be clear and outweighed 4. The value of the evidence must not its apparent prejudice. Balancing P. Guilt And Inno-
[Abraham
Ordover,
Presumptions Of
404(b), 608(b),
609(a),
cence: Rules
(1989)
And
L.J.
Emory
(footnote omitted).]
reemphasize
We
as we did in State v.
supra,
IV Missing presentation clear, in the of this case awas purpose initial focus on the for which the other-crime evidence being Evidence Rule was offered. At the hearing before August incident, sought trial of the the State to admit other- September crime evidence of defendant’s activities for a raft of purposes mistake, accident, of of plan, absence —absence intent, they up were to.” “what
This
an
it
4,1985,
wasn’t
wasn’t a mistake.
[September
activity]
accident,
They
just happening
standing
and his
weren’t
to be
in front
[defendant
brother]
[sic]
night
August
of the bar that
in
and the
made these observations
that
police
selling drugs.
again
were
The fact
that
did it
three weeks later
they
they
shows that
were
of this
that
were
of a
they
part
conspiracy,
they
part
plan.
This was done for a
and on
It
their
shows
intent.
are
purpose
purpose.
They
drug
Judge,
salers
and I
to rule that
it can
professional
[sic],
emplore [sic] you
showing
come in for the limited
what
were
where
to,
purpose
they
up
they
were at in the summer of 1985.
Court,
In its brief to this
the State asserts:
Evidence as to the
crime was admissible in the
4, 1985,
subsequent September
August
State’s direct case to
the connection
establish
between defendant’s
Lounge
1985, station outside the
and the
transactions.
This was the
Copa
inferring
August
nexus for
that his
activities
tied him to the
[defendant’s]
cocaine
vehicle and did not
mere innocent
constitute
nearby
presence.
argument,
sharpened
At oral
its
to the issue
State
focus
similar,
possession. Although
of constructive
these incidents
Reldan,
crimes.” See State v.
185 N.J.Su
“signature
were not
denied,
494, 503,
per.
(App.Div.),
question is
we do not believe
admitting
the other-crime evidence
abused its discretion
have
intent to distribute.
on the issue of defendant’s
with
Erazo,
(“Appellate
Defendant possession (August) by possession (September). actual We focused, disagree. Properly value of the evidence *11 outweighed by any apparent prejudice. would not have been August There a sufficient relevance between the 14th and was September 4th transactions because the incidents were location, kind, closely identical similar and connected enough jury in time to allow the to make the “obvious connec- Harris, possession, propensity. supra, tion” with not See 963; State, 953, A .2d at see also Meadows v. 584 So. 2d (in prosecution (Ala.Crim.App.1991) for unlawful methods, marijuana “substantially” equipment, sup- similar and grown plies marijuana at two locations where was was relevant prove knowledge posses- and to and constructive admissible Christian, 756, sion); 294, 237 Neb. 465 N. 2d W. (1991)(evidence presence prior of defendant’s at cocaine “cook- coupled “rolling” joint er” with his were admissible and prove possession dangerous relevant to controlled sub- stance). dispositive The order of the events is not of the issue Imwinkelried, Uncharged of relevance. Edward J. Misconduct 5:27, (1990). justified in Evidence at 57 The trial court was § admitting the evidence.
V However, prosecution has the once the demonstrated necessi- ty genuine of the other-crime evidence to a fact in issue carefully and the court has balanced the value of the create, against possible prejudice may it the undue the the limited use the evidence. jury instruct the on must court inher that because “the explained In we 6. Evid.R. jury’s evidence casts doubt on nature of such ently prejudicial instruction,” 115 limiting precise the most ability to follow even 833, “should be 309, court’s instruction 558 A .2d the at N.J. precisely permitted the and carefully explain to formulated evidence, to with sufficient reference purposes of the prohibited jury comprehend to the case to enable the context of the factual required it is fine distinction which appreciate the 304, at 558 A.2d adhere.” Id. not state emphasized that a court should
thusWe
shoúld “state
of Evidence Rule
but
generally the content
may
con
the evidence
purposes
the
for which
specifically
jury’s
under
and,
necessary
extent
for
to the
sidered
to be
evidence is not
standing,
the issues on which such
in
The trial court’s
Because the court’s did not preju- trial instruction cure the impact dicial other-crime the clearly the error was capable producing unjust an result. judgment Appellate the is Division reversed and the
matter remanded to the Law Division further proceedings for opinion. accordance with this STEIN, J., concurring. judgment reversing
I concur in Court’s the defendant’s con- agree viction and with reasoning. much of the Court’s I write separately my instruction, limiting because no view no mat- meticulously phrased, ter how the devastatingly can offset prejudicial impact proffered of the testimony. Rule See Evid.R. 4. correctly
The Court
observes that the evidence of defendant’s
September drug-related activities on the sidewalk outside of the
Copa Lounge
materially
was relevant on
disputed
an issue
prosecution
August
offense—the issue whether de-
constructively possessed
drugs
fendant
found in the car
parked
Lounge.
across
street
from the
Presented with
testimony
September drug-related
of defendant’s
activities out-
Copa Lounge,
side the
jury
reasonably
a
could
infer that
presence
August
defendant’s
drug-
the sidewalk in
was also
related,
leading
to
conclusion that defendant exercised
drugs
dominion over the
found in his mother’s car.
difficulty
attempts
arises when a trial court
explain
may
that it
consider
evidence of
event
only
on the issue of defendant’s constructive
of the
drugs
August incident,
found in connection with the
but not on
*13
propensity
possess
to
and distribute
the issue of defendant’s
drugs.
required explanation
incomprehen-
would either be
That
or, understood, incapable
average juror
applica-
if
sible to the
compart-
minds
not
into
jurors
tion. The
are
divided
sealed
separation contemplated by
conceptual
the manda-
ments.
any
limiting
by
is
tory
instruction
too subtle to be achieved
drugs
jury. Presented with evidence
this defendant sold
allegedly
he
did in
outside the same bar
as
guilt
inev-
August,
jury’s
the
ultimate determination
will
jurors
itable,
judge nor the
will know whether
and neither the
limiting
in
carefully outlined
the
instruc-
the subtle distinction
or,
likely, disregarded.
com-
more
As one
tion was considered
use’
which
explains:
theory
“The
of ‘limited
under
mentator
to corre-
explosive
put
such
is
before the
fails
minds of
spond
the actual effect of the evidence even
the
to
Uviller, Evi-
jurors.” H.R.
the
sober and conscientious
most
Illusion, Illogic and
Character
to Prove Conduct:
dence of
(1982).
Courtroom,
Injustice in
U.Pa.L.Rev.
by
to
precisely
kind of Rule
evidence referred
This is
(1989),
A. 833
115 N.J.
558 2d
the Court State v.
inflammatory
characteristic
which we observed: “[the]
*
* *
pragmatic
mandates a careful and
other-crime evidence
courts,
in which
specific
based on
context
evaluation
trial
offered,
probative
is
determine whether
the evidence
potential
preju
outweighs its
for undue
the evidence
worth of
Because undue Rule value, require I outweighs tially its would its case without it. result. concurring in Justice STEIN Justice WILENTZ remandment —Chief For reversal and HANDLER, CLIFFORD, POLLOCK, O’HERN and Justices and STEIN.—7.
For affirmance —None.