*1 801 A.2d221 JERSEY, PLAINTIFF-APPELLANT, STATE NEWOF LONG, CAROLE DEFENDANT-RESPONDENT. February 25, Argued July 15, 2002 Decided 2002. *4 Prosecutor, Incremona, argued the cause E. Richard Assistant Prosecutor, (John County attor- Kaye, A. Monmouth appellant for Juliano, Prosecutor, ney; Mary R. Assistant of counsel and on brief). Anderson, Defender, Kelly Deputy argued S. Assistant Public (Peter Garcia, respondent Acting the cause for A. Public Defend- er, attorney). Gochman, Deputy Attorney General, Lisa argued Samoff curiae, (Peter Attorney Jersey
cause amicus General of New Harvey, General, Acting Attorney attorney). C. opinion of the Court delivered
COLEMAN, J. appeal extra-judicial The critical issue in this is whether declara- prior tions made an accused to the commission of a murder are so, hearsay, they and if whether are any excep- admissible under prove tion killing rule defendant’s motive for victim imply where the declarations that defendant was involved in another death that medical examiner has not as a classified homicide and for which defendant charged. has not been In an unpublished opinion, Appellate analyzed Division probative prejudicial value and effect of the evidence and that it concluded was not admissible because “its a prejudice use carried risk of that outweigh[ed] probative confusion its uncertain value.” We reverse.
I. a This is homicide in which pending. casé the trial is still Our gathered of facts testimony statement has been presented from County a Jury Monmouth Grand and facts at probable revealed hearing. Jury cause That Grand has indicted defendant Carole friend, Long Roche, for the murder her Teresa also known as Tracey. In August ninety-one year defendant lived with her mother, Avon, old Long, garage Mabel apartment New defendant, Jersey. Like Roche shared her home with her mother, Roche, own in Hillsborough. Tracey Irene and defendant had been friends Although since 1992. had not visited each *5 murdered, period Tracey they spoke at in the before was other regularly. length telephone on the and e-mailed each other Thursday, Tracey arranged for lunch Defendant and to meet on 27, Tuesday’s in the Monmouth Mall. August Ruby at restaurant time, daughter’s planning was to attend her At that defendant 11,1998 Tracey had September wedding Diego, San California. wedding invited to she declined. been attend but Roche, August According Tracey called on to Irene defendant exclaim, Tracey date. overheard 27 to cancel their lunch Irene Tracey’s my to and God.” Irene went the door bedroom “Oh ask, Tracey Irene in the heard “Was she hurt?” remained Tracey hung up telephone. doorway Tracey’s bedroom until Tracey then had their lunch told Irene defendant cancelled mother, Long, had fallen down plans because defendant’s Mabel the stairs. following day, Friday, August
Tracey telephoned defendant the Again, Tracey’s inquire Irene overheard side about Mabel. exclaimed, sorry,” I’m “Oh so of the conversation as anything Irene in the I can do?” waited then asked “Is there doorway Tracey’s telephone open bedroom until the conversa- Tracey hung telephone told Irene up ended. After she tion Tracey said that defendant that defendant’s mother had died. would be planning not a funeral and that a memorial service anniversary day on defendant’s held December good had met. added it was mother father cancelled, she thing that the had been because otherwise luncheon Long have defendant when Mabel died. would been with 29, Tracey again called and the Saturday, August On day following to have lunch the plans two women made stay overnight Tracey planned and return Brielle Yacht Club. her at Monday, telephone Irene to August asked Monday leave. give her an excuse to defendant’s home on police Sunday, responded at 8:28 the Avon August a.m. On requesting an ambulance a 911 call from defendant’s residence elderly for an woman had fallen the stairs. who down When call, responded police to the found defendant’s mother alive but *6 injured. transported hospital was to Long Mabel and died day. hospital also to later that Defendant was taken because that panic of a attack. Irene Roche recounted later the same morning Tracey running that called defendant to advise she was late, originally p.m. and would not there for lunch at 2:00 be p.m. Sunday, planned. Tracey At about 12:45 that left her home Hillsborough driving saying anything in her red to Mazda without morning’s reveal whether had her about that defendant informed Tracey practice calling When not usual events. did follow her destination, upon arriving her mother at her Irene tele- Roche phoned p.m. Tracey defendant at 3:30 if about to see had arrived. message answering was no Irene There answer. left a on the machine, but did not receive return call. following day, Monday, August Greg Patrolman Torchia Department investigator
of the Avon Police call received a from an county questioning in the medical examiner’s office how Mabel Long gash could have sustained a four-inch on her head when the stairs which carpeted. on she had fallen were In order to make arrangements investigator speak to to defendant and to occurred, examine the area the fall allegedly where Patrolman appoint- Torchia drove to defendant’s to residence schedule an However, ment. No one answered his knock on the door. parked apron Torchia noticed a red Mazda on concrete driveway. car, defendant’s When he inside he looked saw “lumpy what garment bag. he described as a mass” covered headquarters Torchia wrote down license and called .number “look-up” for a on ear. He car was informed that the was registered Tracey to of Hillsborough, Jersey. Roche New Torchia asking left a note defendant’s mailbox her to call the Avon police to schedule an interview. p.m. Monday,
At telephoned Tracey about 1:00 Irene Roche as previously arranged provide Tracey defendant’s residence with the desired excuse leave. no When one answered the message. Again, left a no return call was received. phone, Irene p.m. again. Irene This time evening That at about 8:00 called Tracey told was telephone answered the and Irene that defendant perhaps had met some friends not there. She added Long told to bother her gone and Beach. Defendant Irene not abruptly anymore and ended the call. Tracey, again Irene
With still no word from called defendant abrupt a.m. was Tuesday, September at about 9:80 Defendant to call calling promised that she the mortician and and said was and hearing nothing After from for one Irene back. defendant hours, Sounding more again one-half Irene called defendant. pressure agitated complained high than ever blood attacks, attending her expressed concern panic about impending daughter’s wedding California. She reiterated again suggested that she not know where she did gone may Long met with friends and Beach Island. have *7 investigator county medical Tuesday, That same inquire appoint- an police called the to whether examiner Avon inspect apartment. made defendant’s Because ment had been to note, not his Torchia responded had to Patrolman defendant told that the defendant’s When defendant was visited residence. residence, said inspect the medical examiner wanted to officer return the next good it not a time and that the should was gone that the red Mazda was day. Patrolman Torchia observed ear be- explained it. that the asked defendant about She Jersey help with visiting who was longed to a friend from North arrangements pertaining to her mother’s death. Meanwhile, Hillsborough Po- reported Irene had Roche told daughter missing. was was Department that her She lice missing matter a enough passed not time had to consider the case, told police an the Avon and then persons but officer called driveway Tracey’s reported defendant’s Irene that car had been days two earlier. Wednesday, returned September Patrolman Torchia
On time, by the accompanied for the third defendant’s residence investigator county from the medical examiner’s office. Patrol- stayed man Torchia investigator outside while the examined the and, waited, premises while he he what appeared noticed to be a large driveway bloodstain in the where the Mazda had been parked. appeared The stain was it though wet and to Torchia as time, someone had tried to clean it. At that the cause of Mabel Long’s death, death was described as “accidental.” The cause of however, changed was later to “undetermined.” Defendant has charged never any relating been with crime or offense to her mother’s death. 4, 1998, September
On defendant flew to California to attend daughter’s later, her wedding. days Five September on Neptune Township report Police parked received a of a red Mazda on Central Avenue Ocean emitting Grove was a foul odor. Neptune police A open officer used a tool to the door and saw a “lumpy clothing garment bag mass” of and a inside. Under the clothing badly decomposed body was the of a woman later identi- Tracey body fied as Roche. The was except unclothed for some jewelry wrapped and was in plastic bags. Interviews of individu- inals the area indicated that early the Mazda had been there as September 4. Tracey The death of Roche was determined be a Among homicide. contributing several factors to her death “multiple sharp were injuries force and involving blunt force mainly the head.” September
On day body after Roche’s discovered, Captain Phillip George County of the Monmouth Pros- ecutor’s telephoned Office defendant in Diego. San Defendant told him that she had last seen Thursday, August either Friday, August when had lunch in Avon at a *8 restaurant called Tracey The Columns. She said that went home after lunch and that she received several Tracey calls from over days mother, the next complaining two about her Irene. Defen- dant that Sunday, August Tracey added on called to invite her Columns, to meet at The but defendant declined because her just mother had died. Defendant Tracey’s stated that she saw car in her door driveway day later that and found a note parked in her claimed in the area. Defendant Tracey saying from that she was night spoke saw or with open door that but never that she left her leaving September 4. Tracey before for California 10, 1998, Jersey Police forensic September New Also on driveway Patrolman in defendant’s that personnel tested the stain A positive were for blood. Torchia had observed. The results executed the next for defendant’s residence was search warrant neat, day. Although apartment initially appeared clean furniture executing suspected warrant soon that the officers pieces that rearranged. examination revealed had been Careful towels, newspa- carpeting under furniture had been removed placed over bloodstained floorboards. pers and blankets were Tracey from Roche. revealed that it came DNA tests of the blood 13, 1998, investigators de- Sunday, September interviewed On her hands. They observed cuts on both of fendant in California. Tracey they when had lunch reiterated that she had last seen She Tracey knew Defendant indicated that she at The Columns. Sunday, August but she had told would be in Ocean Grove on Tracey get together because of Mabel’s death. could not although again, saw repeated Defendant she never day and found Tracey’s parked car at her home later she saw Tracey was Tracey in claimed that a note from her door. She meeting a in Avon. different friend interview, that the blood in her
During explained came from a violent encounter apartment and cuts on her hands in attacked her when she returned with an intruder her home who ran Sunday, August Defendant stated that she from a walk on 30. and then went to the beach apartment, out of the hid the bushes morning, night. she returned the next spent where she When carpet on the from the apartment her a mess and blood she found up cleaned explained that she cuts on her hands. Defendant angry her. not want the landlord to be with blood because she did for the murder of January defendant was indicted On 2C:ll-3, Roche, for two counts violation N.J.S.A. *9 possession weapon purpose, of a for an in unlawful violation of limine, seeking N.J.S.A. 2C:39-4d. motion in filed a victim, Roche, Tracey use at trial statements made to her Roche, Jersey mother, to New Rule Evidence pursuant Irene 803(c)(3). sought to The State use those statements to establish killing Tracey theory defendant’s motive for Roche. The State’s Tracey was that defendant killed Roche to eliminate the chance implicate she would defendant in the death defendant’s mother, Long, suspicion Mabel or raise the that defendant was Long’s in involved Mabel death. motion, hearing
At argued conducted on that the State although proffered hearsay, they statements Irene were should be admitted excep- into evidence under the state of mind 803(c)(3). rule, N.J.R.E. hearsay tion to the argued Defendant pursuant the statements should be excluded to N.J.R.E. 404(b) improper wrongs as evidence of other crimes that tended disposition to show charged to commit the offense. granted
The court in part, ruling State’s motion that the (1) following items could be admitted into evidence: the victim’s go 30, 1998, intention to August stay defendant’s house on house, overnight at defendant’s and return to her own home on (2) 31,1998; August mother, plan Irene, the victim’s with her telephone August defendant’s house on if it was getting yet late and had not returned home. The court held that those statements showed the victim’s intention to meet defendant, with and thus were admissible under the state of mind 803(c)(3). exception rule, N.J.R.E. to the However, (1) Tracey’s the court held inadmissible: statement to mother, Mabel, Irene that defendant’s fell steps down the (2) August Tracey’s 1998 and statement to Irene that defen mother, Mabel, dant’s August died on 1998. The court found that those statements were other-crime evidence under N.J.R.E. 404(b). although The court found that the first and prongs second Cofield, of State v. (1992), 127 N.J. had been proof satisfied in that killing Tracey of a motive for was a material issue and that the death of Roche was similar kind and reasonably Long, close time to the death of Mabel the other prongs could not be met. The court held that there was Cofield evidence, convincing required by no clear and prong the third *10 Cofield, that defendant was Long involved the death of Mabel because the medical examiner had not ruled the death to be a test, homicide. prong Under the fourth of the Cofield which requires probative outweighed by value the evidence to be any apparent prejudice, the court held that prejudice overwhelming jury is if it comes out in front of really being [defendant] is of and is suspected the death her mother implicated Long; Mabel and the reason she killed Roche was to cover Tracey up Long. going that she killed her mother Mabel It to possibility be next going it is to be for curative impossible, instruction to deal impossible really any prejudice overwhelming.
with that. So that is really Accordingly, going I’m not to allow reference to the motive evidence that any Long. [defendant] killed Roche to cover Tracey the murder of Mabel up Appellate The Division denied the State’s motion for leave to appeal the court’s granted order. This Court motion State’s appeal summarily leave to and remanded the matter to the Appellate appeal Division to hear the on the merits. 167 N.J. 1047(2001). 769A.2d remand, Appellate
On Division affirmed the Law Division’s unpublished opinion. order in an The court found that the lower court not ruling inflammatory did abuse its discretion in “that the proposed testimony nature of Irene’s and its use carried a risk of prejudice outweighs probative and confusion that its uncertain “[djefendant Appellate value.” The Division relied on the fact that mother, charged has not been murdering with her and the medical examiner has determined the death to be a homicide.” It nqt proposed reasoned that testimony prejudice raises issues of “[t]he potential jury degree proper limiting and confusion to that a instruction is hard fathom.” again sought appeal
The State leave to to this Court. We (2001), granted application, the State’s N.J. and now reverse.
II.
A. Prosecutor, County argues State, through the Monmouth Roche about how Tracey to Irene Roche’s declarations inextricably Tracey with Long died are intertwined when Mabel strong motive for defendant support Roche’s murder failed to Appellate Division Tracey. argues It that the murder excep- fell within an Roche’s declarations consider whether rule, analysis hearsay engaged solely in a Rule 403 tion to the probative. The prejudicial than the evidence was more of whether are Roche maintains that defendant’s statements hinge evidentiary does not on the hearsay their value not because statements, Tracey’s to Irene fall and that statements truth of the rule, exception to the N.J.R.E. the state of mind within 803(c)(3), Tracey’s a motive for murder— provide because in the fall and death of Mabel inculpate defendant that she could Long. *11 analysis, the
Finally, that under a Rule 403 the State contends prejudicial To outweighs its effect. probative value of the evidence conclusion, that there is no less that the State asserts support by prove defendant’s motive to which it can prejudicial evidence any prejudice kill to defendant can be Tracey Roche and that limiting jury by appropriate instruction. ameliorated an correctly excluded the argues that the courts below Defendant probative value will have an motive evidence because its low jury. also overwhelmingly prejudicial effect on the Defendant Long is that defendant killed Mabel contends that inference the four- and the State is unable to meet other-crime evidence admissibility pronged of such evidence under test Cofield. curiae, General, agrees with the Mon- Attorney as amicus Tracey statements to County mouth Prosecutor that defendant’s regarding her mother’s fall and August Roche on 27 and 28 they being hearsay are not subsequent death are not because addition, truth the matter asserted. In offered for the Attorney argues General that if defendant’s statements are consid- hearsay, they gestae ered are admissible as res evidence under rule, 803(e)(3), N.J.R.E. exception hearsay the state of mind to the they Tracey because indicate defendant’s motive for the murder of Roche, present impression are admissible under the sense N.J.R.E. 803(c)(1), exception, exception, or the excited utterance N.J.R.E. 803(c)(2), Finally, Attorney to the rule. argues analysis General that an of the evidence as other-crime 404(b) necessary evidence under Rule is not it is because admissi- gestae ble as res evidence and not as other-crime evidence.
B. evidence, Preliminarily, important it specific is to make clear the court, rejected by trial that the State seeks to have admitted during the trial. That evidence can be described as two state- Tracey, ments made defendant to who then told Irene Roche what defendant had to her. The said first statement concerns the Tracey Thursday, conversation with August defendant had on Tracey when defendant told that defendant’s mother had fallen statement). day steps (August down the The second Tracey statement relates to a conversation defendant had.with Friday, August when defendant informed that defen- statement). day (August dant’s mother had died Collec- tively, comprise those two statements the motive evidence issue in this case. The State seeks to introduce those two statements as through testimony evidence Irene’s told her what defendant said about Mabel’s fall and death.
The determination whether the motive evidence admissible First, requires analysis. a multi-level we must decide whether either one or both of the motive evidence statements made *12 so, Tracey August hearsay, defendant to on 27 if and 28 were they any hearsay exception whether are admissible under to the Second, admissible, rule. if those statements are found to be regardless they hearsay, of whether or not are the Court also
152 a should be excluded under whether those statements must decide 404(b) analysis. Rule Rule 403 and/or statements to Tra turn now to whether defendant’s
We
Long
that Mabel
cey
during
telephone
their
conversations
Roche
August
August 27 and had died on
the stairs on
had fallen down
testimony.
hearsay
presented through Irene’s
constitute
when
statement,
by the
Hearsay
as “a
other than one made
is defined
testifying
hearing,
at
trial or
offered
evi
declarant while
801(c).
prove
the truth of the matter asserted.” N.J.R.E.
dence
definition,
hearsay
applies
that
rule
when declaration
Under
prove
truth of the statement attributed to the
is offered to
Marshall,
1, 132,
(1991),
123 N.J.
A.2d 1 But if evidence is only exceptions hearsay pursuant be admitted to one of the to the rule. N.J.R.E. 802. hearsay depend
Whether either or both of the statements are present on the State’s intended use of them and who will that, testimony agree with at the trial. We the State when presented two statements are at the trial Irene to show that predicted precise manner and cause of Mabel’s days happened, hearsay death before it the statements are not truth because are not offered for the of the matter —that actually Spragg August August Mabel fell on 27 and died on 28. Care, 33, 56-57, N.J.Super. (App.Div. v. Shore 1996). undisputed August until It is that Mabel did not die 30. hand, On the other the State concedes when Irene testifies her, concerning prove the trial what told the State must Tracey accurately reported to Irene what defendant told her rely and that the State must to do so. Because the
153 actually made rely hearsay prove that defendant must Tracey, that the two we conclude reputed the two statements hearsay defendant and must be treated as as between statements said, must Tracey and Irene. That we Tracey and as between applies to the any exception to the rule whether decide required by 802. statements as N.J.R.E. neatly any exception into one statements do not fit
The two Nonetheless, conclude that the state hearsay rule. we to the murder, Tracey’s N.J.R.E. part gestae of the res ments are 803(c)(3), regarding the admis that the standard enunciated exception, utterance pursuant to the excited sion of evidence 803(e)(2), the trustworthiness of the helps to corroborate N.J.R.E. two statements. in N.J.R.E. gestae concept, now codified
The ancient res 803(e)(3) exception, of mind covers and referred to as the state existing then good made in faith of declarant’s “statement^ (such mind, emotion, as physical condition sensation state motive, bodily intent, feeling, pain, or plan, design, mental added). health)____” 803(c)(3) Despite the (emphasis N.J.R.E. as principle denominated the use of the urging of some to abandon ed., (Strong § 5th Evidence 268 gestae, see 2 McCormick on res (Tillers Rev.1983), § ed.1999); 218 Wigmore 2 on Evidence L.P., “[cjourts N.J.Super. cling v. continue to to it.” State J.AD., concurring), (App.Div.) (Wefing, (2001). denied, 205, 785A.2d 434 170 N.J. certif. variety of used to admit a wide gestae concept has been
The res
under circum
criminal and civil context
in both the
evidence
hearsay exceptions in the New
as
that are now codified
stances
See,
Eagle-Picher Lead
e.g., Hansen v.
Jersey Rules Evidence.
(1951)
Co.,
(holding that declarations
84 A .2d281
8 N.J.
“only they
if
are
gestae evidence
agent
admissible as res
were
so
main fact under consideration
concomitant with the
so
character”); Trenton Passen
its
it as to illustrate
connected with
Consol,
(E.
219, 221-22, A
Co.,
Cooper,
60 N.J.L.
ger Ry.
A.1897)
“ejaculatory
were admissible
(holding
words”
&
occurred”);
gestae
“part
res
evidence because
were
of what
State,
(E. A.1878)
Hunter v.
(holding
N.J.L.
536-38 &
present
letter and declarations showed decedent’s
intent to meet
Philadelphia
defendant in
gestae
were admissible under res
Jones,
(N.J.Err.
exception); Luse v.
App.
39 N.J.L.
&
*14
1877) (holding
writings
that
describing
and declarations
sale of
part
gestae
furniture were admissible as
of res
because
were
sale);
State,
contemporaneously
Donnelly
recorded
with
v.
26
(N.J.Err.
601,
App.1857) (holding
N.J.L.
612
&
that victim’s
shortly
declaration
injury,
before he died about
cause of the
“[t]he
stated in such immediate connection with the manner of his
it,
receiving
shortly
received,
and so
after it
may
was
...
be
evidence,
in
part
gestae”).
admissible
as
of the res
While the res
gestae exception has been characterized “as a shorthand reference
principles
to the
exceptions
contained
two
[at least]
to the rule
excluding hearsay
pertaining
spontaneous
evidence
and contem-
statements,
poraneous
pertaining
physical
and
to statements of
or
mental condition of
history,”
declarant and related
State v. Schu-
mann,
(1988) (citations
470, 479,
omitted),
111 N.J.
Despite its gestae res evidence is considered surrounding reliable because the guarantee circumstances its is, trustworthiness. That gestae justifying of the as res has as its admissibility proofs that principle
truth, like the Master’s is of one robe, without piece, seam, woven from the top throughout, that each fact has its attributes and its inseparable kindred facts affecting its materially character, and that of a scene with its reproduction each incidents, created and multiple without and not naturally too artificiality distant in of time, will and point texture tend to disclose the by very quality truth. (1949).] [Robertson v. Hackensack Trust 1Co., 304, 312, N.J. Thus, may regarded be long “[i]t as since settled this person’s State that a own present statements of a existing state of mind, when made in a natural manner and under circumstances dispelling suspicion involving suggestion and no of sinister or motives, improper reflect competent his mental state and are
155 is, plan or prove design.” condition of mind —that his his (1962). Thornton, 390, v. N.J. 185 A 9 “The rule State 38 .2d ... the declaration is concomitant with main fact that where under connected with it as to illustrate its consideration is so but, character, may proved part gestae; of the where it be as res occurrence, of a it cannot be as merely past it is narrative received v. proof the character of that occurrence.” Blackman W. Co., 1, 2, Jersey (Sup.Ct. R.R. A 370 & 68 N.J.L. Seashore 1902). cases, narrowly on In some courts focused whether exclamatory contemporaneous, spontaneous, was declaration admit not uttered coinciden refused to declarations were Simmons, tally happening E.g., with an event. (1968) rape A.2d (holding N.J. victim’s gestae identification of attacker admissible as either res in a spontaneous declaration victim “was still state of because excitement”), denied, 1779, 23 cert. 395 U.S. 89 S.Ct. L.Ed.2d (1950) (1969); Paolo, De A.2d 564 State v. 5 N.J. (stating part gestae the res be admissible “[t]o spontaneously under statement must have been made conditions *15 any opportunity calm preclude such as to reflection and eliminate declaration”). However, composing self-serving a this Court Ferrara, 497, (1971), 502, 761 noted in v. 57 N.J. 273 A.2d Cestero that gestae
in more times the res has broadened and considerably recent been concept has Now evidence of for strict been modified. requirement contemporaneity declarations made under the immediate influence of the transaction or principal or coincident occurrence is admissible. need not be concomitant with They light exciting providing that in the of all the stimulus; be they may subsequent exciting had its circumstances it be said influence not lost may reasonably or interval. had not been in the sway dissipated (Citation omitted).] [ trend, Under modern our courts have admitted evidence as this part gestae res connection between the because charged a evidence the crime for which even between occurrence and the where there is an interval of time it and even in factual situations that declaration to which relates capital pose prejudice a to the defendant. In the case risk of 156 176, 239-40, (1993),
State v.
131 N.J.
Similarly,
Cherry,
503, 522,
in State v.
289 N.J.Super.
674 A.2d
589 (N.J.Super.App.Div.1995), evidence that
the defendant and
planned
two other men
shortly
to rob a
police
bar
before a
officer
was murdered outside the bar
part
was admitted as
of the res
gestae of the murder. The court held that “[e]vidence of events
place during
that take
the same time frame as the
charged
crime
in the indictment will not be
if
excluded
the evidence establishes
event,
the context of
of,
the criminal
explains the nature
presents
picture
the full
of the
jury.”
crime to the
Ibid. Accord
L.P., supra,
State v.
N.J.Super.
768 A.2d
(stating
that evidence is
gestae
admissible as res
of criminal event if it
identifiable,
involves “an
overriding objective
together
ties
conduct”);
disparate
Torres,
N.J.Super
160-61,
(App.Div.)
To review of case reveals extra-judicial into the declarations made cation admit evidence by defendant. the the ... are admitted
Declarations ... accused criminal event prior notwithstanding character____[because] the behavior of ... then- “hearsay” hence, [the of the as [is] mosaic criminal insofar event, part defendant’s] [the defendant’s] either acts or declarations bear the quality upon declarations] of the [the must be mind, accepted relevant state of part parcel critical scene. denied, [State Baldwin, 221 A.2d cert. U.S. N.J. (1966).] S.Ct. 17 L.Ed.2d part integral be an declarations are deemed to Such quality of the because bear on the defendant’s criminal scene his or motive. Ibid. act or her intent or Contrary two the trial court’s conclusion that the statements evidence, not addressed are other-crime a conclusion Division, are of the Appellate part we hold that the statements murder; Tracey’s mind gestae they satisfy the state of res such, As the state- exception and are not other-crime evidence. 803(c)(3). Proof of defen- ments are admissible under N.J.R.E. kill of the criminal motive to establishes context dant’s presenting picture full of the crime to and assists event *17 158 Martini, 242,
jury.
supra, 131
State v.
N.J. at
C.
Attorney
argues
The
General also
that the statements are
admissible under the excited
exception
utterance
to the
803(c)(2).
rule,
Rule,
N.J.R.E.
Under that
an excited utterance is
relating
startling
defined as
to a
“[a] statement
event or condition
made while the
under
declarant was
the stress of excitement
by
caused
or
opportunity
event
condition and without
deliberate or fabricate.”
The
upon
Ibid.
Rule
“based
premise that
the excitement caused
the observation
startling
reliability
spontaneous
event insures the
of a
statement
it
about made at
near the time of the event’s occurrence.”
Biunno,
Evidence,
Current N.J. Rules
comment 1 on N.J.R.E.
803(e)(2),
(2002).
(1)
requires
at 905
Rule
was a
there
(2)
event,
startling
statement
made while the declarant
(3)
event,
was under the
stress
excitement from that
Wigmore
1750,
statement related to that
6
§
event.
on Evidence
(Chadbourn rev.1976).
203-04,
at
222
The rationale for
excit
ed
exception
utterance
lies in the notion that “excitement sus
pends
powers
fabrication,”
the declarant’s
of reflection and
conse
quently
possibility
minimizing the
the utterance will be
influenced
self interest and therefore rendered
2
unreliable.
(5th
272,
§
ed.1999);
McCormick on
Evidence
204-05
see also
(7th
761,
Joy,
Cir.1999),
denied,
United States v.
192
766
P.3d
cert.
1250,
2704,
(2000);
530
S.Ct.
U.S.
120
In
whether there was
time,
deliberate,
cate or
court should consider “the element
*18
incident,
physical
the
of the
the mental and
condi
circumstances
declarant,
the
v.
tion of
and the nature of
utterance.” State
172,
Williams,
N.J.Super.
Viewing the declarant when she made the state- Tracey, satisfy ments record does not the standard estab- 803(c)(2). N.J.R.E. lished under Both statements were deliberate- ly any fabricated defendant and were not made under stress Therefore, startling related the occurrence of a event. required fact-specific analysis concerning defendant-declarant can- not be satisfied. admissibility
To the extent that the of those statements turns Tracey’s mental state the time she told Irene what defendant death, said State v. had to her about Mabel’s fall and Macha see do, 803(c)(2) 111 N.J. (1988), Rule A.2d has been previously, Tracey satisfied. As noted had no reason to misrepre what repeated sent defendant had told her. She statements her mother contemporaneously almost as she heard them over telephone. August August 27 and 28 statements were star tling exclaimed, God,” she my because “Oh so “Oh I’m asked, sorry,” anything “Is I Clearly, there can do?” those *19 facts that Tracey demonstrate was under the stress of excitement Mabel, caused defendant’s statements her that her friend’s mother, had fallen died. was no opportunity Tracey There for hold, to fabricate before recounting the statements to Irene. We therefore, Tracey’s statements to concerning Irene what Tracey 803(e)(2) defendant had told are admissible under Rule exception hearsay to the rule.
III. Next, we address whether the statements that are (state mind) gestae res admissible the under of exception to the rule, hearsay N.J.R.E. 803(c)(3), and the excep excited utterance tion, 803(c)(2), N.J.R.E. subject balancing are to a under N.J.R.E. 403, 404(b), N.J.R.E. Tracey both. Defendant’s statements to are admissible to establish defendant’s murdering motive for Tracey. being Because motive evidence is not as admitted 404(b) evidence, no need to conduct Rule there is other-crime admissibility of other-crime addressing The analysis. Rule evidence, 404(b), acts of apply uncharged not N.J.R.E. “does subject of is components of the crime that misconduct that are 1208; 241, Martini, supra, 131 at 619A.2d v. N.J. the trial.” State 106, 113-14, (App. Byard, N.J.Super. 744 A.2d v. State (2000); denied, v. Div.), State 165 N.J. certif. Ortiz, 589; N.J.Super. 674A.2d Cherry, supra, State denied, 243-44, N.J.Super. (App.Div.), A.2d 735 certif. (1992). Here, relates motive evidence 611A.2d 646 130 N.J. any uncharged acts of misconduct Tracey’s rather than murder (state However, gestae death. both res to Mabel’s related mind) excited pursuant admissible to the evidence and evidence subject Rule 403 to the rule are exception utterance balancing. balancing to determine whether purpose of a Rule 403
The admitting the evidence prejudice motive risk of to defendant contends that defen- outweighs its worth. State probative killing Tracey prevent from motive was to dant’s defen- mother’s death based what impheating her days three before told about the death Mabel dant emphasis not be on defendant’s Although the will Mabel died. mother, that evidence responsibility for the death her criminal jurors in the minds of likely suggestion or an inference will raise mother’s For for her death. regarding culpability defendant’s reason, impact analysis under prejudicial probative value 404(b) We, therefore, look to 403 and Rule are the same. Rule seminal case this Court in the the standard articulated v. Cofield. following four-part test to determine established
Cofield civil-wrong evidence is inadmissible: other-crime and when to a material other must be admissible relevant The evidence of the crime 1. issue; *20 charged; in time to the offense in kind and close reasonably 2. It must be similar convincing; and the other crime must be clear and The evidence of 3.
162 outweighed
4. The
value of the evidence must not be
its
probative
by
apparent
prejudice.
(citation omitted).]
[State v.
127 N.J. at
A.2d 230
338, 605
Cofield, supra,
balancing
prong
test
...
incorporates
of
fourth
“[T]he
Cofield’s
Hernandez,
balancing
test of
403.”
v.
traditional
Rule
State
(2001).
106, 127,
prong requires
N.J.
Historically,
differently by
motive evidence has
our
been treated
404(b) analysis:
courts even under a Rule
generally
range
New
a
courts
admit wider
of evidence when the
or
Jersey
motive
intent
the accused is material. That
includes
circumstances that
evidentiary
light”
“tend to shed
on a defendant’s motive and intent or which “tend to fairly
though
[a defendant’s]
even
explain
actions,”
they
have occurred before the
may
[for
commission of
offense
trial].
which the defendant
on
(1999) (citing
quoting
[State
565,
v.
157 N.J.
168
Nance,
In State v.
148
prison term on the first assault.
enhanced
(1997),
376, 388-90,
A.2d
held that evidence that
689
1351
we
N.J.
prove
to
jealous
the victim was admissible
the defendant was
Martini, supra,
N.J. at
In
v.
131
motive
murder.
State
his
1208,
case,
389-42,
this Court did not find
capital
another
619A.2d
against
made threats
that defendant had
prejudicial
too
evidence
to
murder.
In State v.
prior
murdered victim’s wife
(1991),
Erazo,
112, 130-31,
capital
A.2d
another
126
594
232
N.J.
ease,
eleven-
prior
allowed to introduce evidence
the State was
motive, namely
year
that the defendant
old murder to establish
causing a
prevent
victim
her from
revocation
his
killed the
to
This Court
parole from
sentence on the earlier conviction.
his
prove
“necessary
the State’s
allowed the use of that evidence
motive.”
at
In
whether to exclude evidence based on its
potential for prejudice,
availability
“a court must consider
of
that
prove
other evidence
can be used to
v.
point.”
same
State
Covell,
569,
supra,
We of the introduction defendant’s statements likely prejudice, will create some regarding but the evidence extremely high probative motive has high probative value. That any value the absence of other source to establish motive must weighed pragmatically against be reality any “[v]irtually probably preju risk of crimes’ -will entail some evidence of ‘other 287, Mazowski, 275, N.J.Super. State v. dice a defendant.” is Similarly, evidence (App.Div.2001). “[t]hat A.2d 1176 unsavory for exclusion implications is no reason with shrouded The unwholesome significant part proof. of the when it is a herself], if the evidence aspects, defendant himself [or authored believed, inextricably entwined with if] admissible [is be West, v. 29 N.J. 149 A.2d material facts.” State (1959). not the motive should be excluded
Our conclusion that evidence is less by the fact that there no other under Rule 403 is influenced for to establish defendant’s motive prejudicial evidence available prejudicial killing The absence of less evidence her friend. probative motive evi enhances the value establish motive theory of “necessary prove it the State’s dence because Erazo, motive,” supra, N.J. at defendant’s surrounding murdering when the circum for a friend A.2d arguing In to infer motive. crime make it difficult stances evidence, admissibility points against the the motive relating charged any crime she has been out that never death remains undeter Long, and the cause her death of Mabel *23 reducing arguments potential the mined. same also have Those prejudice the to defendant. the test has been prong hold that the fourth
We Cofield testify regarding statements that Irene Roche can satisfied and August regard on 26 and 27 by to Roche made fact Notwithstanding her the ing Long’s fall and death. Mabel necessary res limiting insofar as no instruction is generally Martini, concerned, supra, 131 N.J. is gestae evidence give jury an the trial court to we direct 619 A.2d limiting motive evidence the use appropriate instruction gestae excited case involves both res because this addition, limiting hearsay In rule. exceptions utterance to the prosecutor not use the helps that the does instruction to ensure during summation. improperly motive evidence
IV. judgment of the Appellate The Division is reversed. The matter remanded to the Law for trial. Division C.J.,
PORITZ, concurring. my colleagues, by I Like would admit the made statements 803(c)(2) Tracey August defendant to 27 and 28 under N.J.R.E. (3). separately gestae I although write note that the res alone, principle, standing by has been discredited scholars aas evidence, where, here, basis admit otherwise inadmissible its Rules, specific use is tethered Evidence it remains a useful interpretive tool. joins in
Justice LONG this concurrence.
STEIN, J., concurring part, in dissenting part'. join
I Court’s August determination that 27 and August 28 statements made defendant to are admissible under the of mind exception hearsay state to the rule. N.J.R.E. 803(c)(3). However, majority’s I disagree with the use archaic, phrase gestae catch-all res exception to describe an to the precisely rule that has been codified under our evidence Moreover, persuaded rules.1 I am not this record that the victim’s August August reaction defendant’s 27 and phone appropriately calls can be an characterized as excited utterance. gestae, phrase meaning done,” Res the Latin “things can be surrounding used to refer to the being litigated, events the issue contemporaneous “other events with them.” Black’s Law (7th ed.1999). Dictionary phrase may have made its first appearance early as was not in common 1637[but] use until the “as early century.” Blair, say Good-bye nineteenth Chris Let’s to Res hindsight, acknowledge With the benefit of I must that I have been remiss in joining gestae expressing res previously opinions without the reser applied e.g., vations about its See, use I advance in this contemporaiy opinion. *24 (1988) State v. Schumann, 111 N.J. (1997). Gestae, Although phrase “the 33 Tulsa L.J. hearsay rule for state- initially developed exception an to the as the happening principal with the of ments were associated [that] collision, event, murder, trespass,” a a or such as a litigated “ any embody of eventually ‘seemed to the notion that evidence it might bring in the concededly act or condition also words relevant ” years the res accompanied it.’ Id. at 349-50. Over the which exceptions, gestae exception evolved into several different has utterances, impressions, and including “present sense excited the emotional, mental, physical condi- existing then statements of to verbal acts or ... now would refer as [or] tion words we gestae has parts of Id. at 350. Res also been “used verbal acts.” uncharged admissibility of evidence of misconduct.” explain the acted in Although to show that a “defendant Ibid. not admissible character,” conformity uncharged misconduct evidence with his uncharged part “the can be where misconduct used jurors adequately could not single episode [] criminal pro- evidence charged crime without contextual evaluate the Id. 350-51. uncharged misconduct.” at vided gestae has criticized commentators of the res term been Use superseded by specific largely find term to be archaic and who commentary rules. One has exceptions set forth the evidence common gestae confusing “a and much discredited res described reasoning “a for concept” that once served as substitute law Prater, D. Virginia M. Klemme & Dennis Res analysis.” careful (1996). Head, 65 Kans. Bar Ugly Its J. Ass’n Gestae Raises phrase its usefulness: has outlived Yet another discusses how Although role in the some beneficial development have phrase may played uncharged it criticized evidence, misconduct has been widely the law of being included within and harmful. It is useless because concepts useless gestae more all other principles res can be explained by reference refined It is it causes evidentiary principles evidence law. because confusion of harmful concepts. and acts as a deterrence principled analysis evidentiary added).] (emphasis L.J. [Blair, 33 Tulsa supra, repudiation, Wigmore On Evidence adds: Endorsing its gestae long useless, has but even entirely positively res been not only phrase it has ever been rule of evidence which useless, every harmful. It is because *25 168 exists some as a of other well-established and can be applied part principle ambiguity in the It terms that is because its it explained harmful, principle.
invites the confusion one rule with another thus and creates as to the uncertainty ought limitations both. It therefore as a to be vicious element wholly repudiated legal phraseology. in our (Chadbourn rev.ed.1976).] Wigmore [6 § on Evidence at 255 1767, Agreeing phrase gestae longer enjoys that the res contempo- no rary scholars, respect recognition among courts and McCor- suggests jettisoned, mick on Evidence it can “be with due acknowledgment that it era served an in the evolution of evidence 268, ed., § law.” (Strong McCormick Evidence 196 5th ed.1999). That gestae source observes that it res once made easier for coverage permit “courts broaden its and thus the admissibil- situations,” ity of certain in suggests statements new but that “the stage expanding law has now reached a admissibility where is in ways.” better done other Ibid. explicitly impliedly
Some federal courts either or have ex- pressed disapproval of gestae the continued in reference res Miller, Stephens evidence law. The Seventh v. Circuit 13 F.3d 998, (1994), example, acknowledging 1003 after that other useless, phrase gestae federal courts have “described the res harmful, inescapable definition,” and almost of a that “for noted purposes law, of the gestae Constitution and federal the term res significance.” is without Keating, The Third Circuit Miller v. 507, (1985), 754 sought F.2d 509 stated that declaration be “[a] must qualify admitted under genuine exceptions one to the catchall, rule” because gestae,’ old ‘res longer “[t]he is no part of law of evidence.”
Federal articulating courts are not alone in their dissatisfaction gestae. See, State, phrase e.g., with the res v. Andrews 249 Ga. 223, 290 S.E.2d 74 (Ga.l982)(acknowledging overwhelming gestae although criticism deciding ultimately of res not to abandon concerning “traditional gestae,” discussions res present at least in case); State, Berryhill So.2d (Ala.Crim.App.1998)(“‘Although nearly always ... referred to being part described in the Alabama decisions as of the res gestae, ‘spontaneous it is submitted that the terms exclamation’ are because words ‘res preferable utterance’ ‘excited many things signify so different gestae’ have been used scope promote proper confusion as to their use calculated to Gamble, McElroy’s Alabama exception.’ ”)(quoting present of the 265.01(1) (5th ed.1996)); Evidence, § B K Rentals and at 1281 & Co., Co., Md. v. Universal Tobacco Sales Inc. Leaf (Md.l991)(‘We agree ... ‘this troublesome A.2d persistence in our law of evi expression its owes existence *26 lawyers and avoid the toilsome judges to an inclination of dence analysis precise thinking.’”); Bynote v. of and exertion exact (Mo.l995)(en Markets, Inc., 117, Super 121 891 National R.W.2d term,” stating “free of and banc)(disapproving parties of use the virtually determining phrase meaningless is what a that “[t]he testimony the of permits it basis the trial court means when ’ rule”); Swick, gestae exception to the Evert v. 300 ‘res (Mont.2000)(“ 427, 773, gestae, ‘The phrase 8 777 res Mont. P.3d itself, nothing already complex to an area adds but confusion phrase use of the practice is to abandon the the law. The better to, instead, the rule of evidence or altogether specific use and ”) presented.’ particular that the factual situation applies statute 219, (citations omitted); 220 Hajford, 410 A.2d State v. express of the use (Me.l980)(finding disapproval ] “occasion to [ of that stating that use gestae,” “[Continued and [r]es the term only to confuse and the would serve by label bench and bar L.P., 241, mislead”); A.2d 795 N.J.Super. 768 State v. 338 (2001)(Wef denied, N.J. 785 A.2d (App.Div.), certif. disquiet J., concurring)(writing “because of ing, separately [her] ” that was not concept gestae to describe evidence with the res forming charge for which intimately of chain of events part so convicted). comprised gestae historically the res have principles codified, of the words “res but without use exception have been imprecision accompanies con gestae.” Characteristic the majority’s reference phrase gestae res is the reliance on the tinued exception now codified at gestae as state of mind to res the 803(c)(3). at and 232. at and 801 A.2d N.J.R.E. Ante noted, However, gestae concept superseded by res has been hearsay exceptions: present four separate impressions, sense utterances, conditions, present bodily present excited mental states and emotions. principles Because those have been codified by specific exceptions, the Court would be better served abandoning phrase gestae continued reference to the res replacing precise analysis it with contemplated by our Rules of Evidence. question majority’s
I
August
also
determination that the
August
28 statements are admissible under the excited utter
803(c)(2)
exception.
ance
N.J.R.E
defines an excited utterance as
relating
“[a]
startling
statement
to a
event or condition made while
the declarant
is under
the stress of excitement caused
event or the
opportunity
condition and without
to deliberate or
Although
majority correctly
fabricate.”
observed that
likely
opportunity
“no
recounting
[ ]
had
fabricate before
Irene,”
view,
statements to
my
ante
N.J.R.E. states: “relating Note that while the startling Rule to present speaks statements to” a event and eliminates the of the former rule the explicit requirement deelar- startling leaving event, the of the open ant’s excitement be caused by perception an could be new admissible statement under the formulation the possibility to him but which took event made a excited an which by reported by person it intention of the drafters his was the replace outside personal perception, place change____It the therefore submitted that rale substantive is the former without in remains the Rule. implicit present requirement perception cannot be lacking is then statements requisite “If the excitement close to the time of regardless under the of how admissible rule Normally, sufficien- they Ibid. the starling event were made.” easily is resolved where the declar- cy of event or occurrence event, as an automobile is in or such ant involved observes Evidence, accident, by dog. fight an attack McCormick on deciding In event or occurrence § at whether the supra, 205. primarily upon effects sufficiently starting, “courts look statement, value of id. at 206 or the “shock the declarant” of the Weinstein, § question,” supra, 16.02[02]. at the event are majority challenged statements concludes that admissible, Tracey the “stress excite- assuming that was under August statements recitation of ment” caused defendant’s 234. It reasons that because Tracey. 801 A.2d at Ante defendant had told misrepresent had “no reason to what contemporaneously repeated she them “almost her” and because “[cjlearly ... telephone,” those facts over the as she heard them the stress of excitement was under demonstrate her mother that defendant’s caused defendant’s statements” Although factors are relevant those had fallen died. Ibid. statements, not reliability challenged do of the proving stress or Tracey was under sufficient necessarily demonstrate that any made. In any statements were under stress when those event, are admissible conclusion that the statements the Court’s supported, and exception of mind is well pursuant to the state necessary. exception is not utterance reliance on the excited PORITZ, Justice For reversal and remandment —Chief VERNIERO, COLEMAN, LONG, LaVECCHIA Justices ZAZZALI —6.
Concurring Justice PORITZ and Justice LONG —2. —Chief Concurring part; dissenting part in in STEIN —1. —Justice
801 A.2d VAILLANCOURT, IN THE MATTER OF DONALD C. AN AT ATTORNEY LAW.
July 2002. ORDER LEE, DONALD C. VAILLANCOURT Of FORT who was admitted to the bar this and who thereafter was temporarily suspended practice from by of law Order of this May time, Court filed suspended and who remains at this having tendered attorney his consent to disbarment as an law Jersey, good State of New cause appearing;
It is ORDERED that DONALD C. VAILLANCOURT is dis- by consent, barred immediately; effective and it is further respondent’s ORDERED that name be stricken from the roll of attorneys permanently and that be enjoined he restrained and law; practicing from and it is further funds, any, ORDERED that currently all if existing any New Jersey financial institution maintained DONALD C. VAIL- pursuant LANCOURT to Rule 1:21-6 shall be restrained from except application disbursement good this Court for cause shown and shall be transferred the financial institution to the Court, Superior Clerk who is to deposit directed the funds in the Superior Court pending Trust Fund further Order this Court; it is further