*1 469 A.2d PLAINTIFF-RESPONDENT, JERSEY, STATE OF NEW MARRERO, ADAM DEFENDANT-APPELLANT.
Argued 1996 Decided March October *4 Defender, Hedeen, argued Deputy A Public Barbara Assistant Defender, (Susan Reisner, appellant L. cause for Public attorney). *5 General, Heinzel, Attorney argued the cause Deputy
Paul H. (Peter Vemiero, Attorney of New General respondent for G. Jersey, attorney). opinion of the was delivered Court
COLEMAN, J. purposeful knowing appeal for or involves convictions This assault, murder, kidnapping, aggravated and sexual assault. sexual dissenting in an interlocu- appeal right is of based on a vote tory dissenting appeal. in a must appeal and a vote direct We Appellate reversible error for the Division decide whether it was permit the the trial court and order it to to overrule sentencing awaiting was on a introduce evidence that defendant charge at the time of the murder and other of sexual assault must also decide whether the trial court’s offenses. We concerning the other-crime evidence were so deficient instructions they plain constituted error.
I Friday, August Adam Marrero F.C. and defendant On gathering time at a social at the home of F.C.’s met for the first party approximately 11:30 aunt. Defendant and F.C. left the together. Saturday morning at p.m. and went to a bar On 8:20 a.m., daughter absence. F.C.’s arose and noticed her mother’s family Friends and were called and a search was conducted throughout day. police the entire The Vineland became F.C. Saturday in the case afternoon. involved Monday morning in body discovered on a remote F.C.’s was nude, body surrounding Park in Vineland. The area Central over legs apart and knees bent. Her arms were extended with head, body dragged. clothing was her as if the had been Her area. scattered around the County grand jury defendant for mur-
A indicted Cumberland murder, der, first-degree aggravat- felony first-degree kidnapping, assault, As a result second-degree sexual assault. ed sexual *6 motion, Salem the case was conducted trial of pretrial of a motion the State’s May The trial court denied County in evidence. introduce other-crime following evidence. trial, presented the
During the the State aunt on the home of F.C.’s party to the at went Before defendant housemate, Jorge and his uncle he borrowed August and F.C. transportation. Defendant pickup truck Marrero’s pizza p.m. with approximately 11:30 together at party left daughter. to F.C.’s to be delivered intended that was defendant, on Lazano, learned uncle of Johnny another When home, defen- he confronted had not returned Saturday that F.C. where- about F.C.’s information Lazano demanded When dant. table, I saying, am “What abouts, jumped up from the defendant later Defendant going I to do now?” am going to do now? What requested directly home. Lazano he had driven F.C. insisted home, claimed but defendant him F.C.’s take that defendant lived. forgot where she that he lived, the two the victim where reminded defendant
Lazano he had present told those Defendant to her home. drove requested. as she her home doors from dropped off three F.C. her door. approach F.C. had watched that he Defendant claimed of the 27, 1988, Frank Buseemi Patrolman Saturday, August On the events defendant about questioned police Vineland dropped off F.C. he had Buseemi Defendant told night. previous p.m. about 11:00 Buseemi 28, 1988, Curley and Detective August Sunday, On that he explained Defendant at his home. defendant questioned gone to had then p.m. 11:30 at about home had taken F.C. restau- he left the claimed that alone. He Peking Restaurant going home before Vineland and drove around 1:30 a.m. rant at at 4:00 a.m. that when Jorge, told them who questioned
Curley and Buseemi nor Saturday, the truck neither a.m. on at 6:30 left for work he permission defendant was at the house. The officers obtained Jorge from to search the truck. Buscemi testified that defendant “literally looking our into the truck as were over shoulders we began to going through When inconsistencies arise [it].” alibi, Curley defendant’s and Buscemi decided to interview defen- Curley swelling headquarters. dant at noted bruises and on defendant’s hands. Defendant claimed the bruises were from carnival, working at a but he later admitted that he had last eighteen prior worked at the carnival more than months to the gone stated that he had home at 6:00 a.m. interview. Defendant 27, 1988, August changed and then he the time to 7:00 a.m. gone When confronted with evidence that F.C. had to the him, had, Peking Restaurant with defendant first denied that she eventually but he claimed that he had taken her home at 1:30 a.m. *7 until and driven around Vineland and Millville 7:00 a.m. Defen- stopped gas anyone dant claimed that he had neither for nor seen route, during Curley his drive. Defendant could not recall his so they Sergeant and Ballurio asked him to drive the route while accompanied trip him. The took between one and one and one- half hours. found, body police
Near where was the Vineland discover- F.C.’s running through patch vegetation. According ed tire tracks expert, by to the the State’s tire tracks were made tires similar to truck, Jorge’s pickup vegetation those of and similar was stuck in undercarriage pickup of the truck. Maypow, County Dr. Lawrence the Cumberland Medical Exam- iner, autopsy conducted an and concluded that had died F.C. twenty-four days corpse between hours and several before the was Maypow Dr. had from discovered. concluded that F.C. died strangulation, manual her based on several bruises on neck and a hyoid physical fracture of the A was from a bone. assault evident piece lodged of wood in the victim’s throat that matched the wood Jorge’s in pickup the bed of truck. Semen found on F.C.’s thirty-six percent sweater matched that of of the White male population type. that included semen defendant’s County Guy Bishop, in another inmate housed the Cumberland defendant, defendant, jail awaiting testified that while with Jail trial, killing F.C., during saying first that she died confessed to Bishop also that defendant told consensual- intercourse. testified “grabbed slapped F.C. and that he had him that had defendant breathing.” by before he realized it wasn’t her the throat and she death, awaiting sentencing time At the of F.C.’s defendant was charged on for a sexual assault another victim. Defendant sodomizing on raping in a wooded area of Vineland with K.N. 12-13, charged raping with Defendant was also March 1988. 19-20, victim, I.F., on March sodomizing in a wooded area another second-degree pled guilty to reduced sexual Defendant charges exchange K.N. for the dismissal in the case assault charges in I.F. ease. case, to its motion of the State’s renewed At close I.F. respecting the K.N. and introduce other-crime alternative, assaults, to the fact that or in the introduce sexual prior assaults. The pled guilty had to sexual one defendant pled guilty fact had argued that defendant sentencing, suggested a awaiting motive assault and was sexual determining kill assist the and that evidence would F.C. The trial court denied type of committed. homicide motion. State’s granted motion leave Appellate Division the State’s judge, one the dissent of
appeal May 1990. Over summarily The trial court reversed order. Appellate Division *8 awaiting defendant was sen- admit the fact that was ordered to against F.C. a assault the time the offenses tencing for sexual at give trial was directed to committed. The court were limiting direction that this shall include the instruction which an appropriate jury from finds independently is not considered unless and until evidence to be in fact that defendant was case, doubt, in a reasonable beyond other evidence jury having consider the so found, may of the homicide. Once the perpetrator committing homicide and intent in on the of defendant’s motive issue degree of homicide involved. to determine the type in order dissenting panel The member of the would have affirmed the trial ruling balancing court’s based on Evidence Rule 4 test. This appeal May Court denied defendant’s motion for leave to on essentially claiming everyone defense ease consisted of case, including police Johnny connected with the officers and Lazano, testimony. in had lied their Defendant testified his defense, point own and at one claimed that he would not have committed anything the murder because he did not want “to do that, get “[a]ny [jail] more time” pleasant because time not [is] anybody,” going get any he “wasn’t being trouble” after 25, 1988, recognizance August released on his own on after pleading guilty to the sexual assault on K.N.
The State through introduced other-crime evidence defen- by agreement Appellate dant ruling. after Division’s Defen- murder, dant testified that at the time waiting of F.C.’s he was be sentenced for the sexual assault K.N. and that he was County day released from the Cumberland Jail the before the 26,1988, August murder for which he was on trial. presented experts. those,
The defense also two The first of dermatologist, testified that the bruises on defendant’s hands were all, not “acquired bruises but were rather the result of acrome- “hyperpigmentation,” darkening lanosis” or of the skin often complexioned conceded, seen in people. expert darker how- ever, photographs that the “discoloration” shown of defen- dant’s hands could have punching beating been caused or person. another expert The second testified that he did not find any body of defendant’s hair on the clothing. victim’s or He examination, however, admitted on cross that he found no hairs or either, originating other material party explaining from a third sample’s prolonged that a exposure greatly to the elements re- recovering any duces the likelihood of may hairs or fibers that have been it. transferred onto charge
The trial court second-degree dismissed the sexual assault at the end of the State’s case. The convicted defen-
479 charges. prison He on all other was sentenced to for dant the twenty years forty parole plus years life with aggregating terms ineligibility. judgment of conviction in Appellate
The
Division affirmed the
majority
unpublished opinion,
judge dissenting.
one
an
with
Appellate
panel regarded
prior
the
Appellate
of the
Division
case,
therefore, the
to be the law of the
issue
Division decision
have
admitted
the other-crime evidence should
been
was
whether
dissenting judge found the law-of-the-
not before the court. The
discretionary
He
that
be a
rule.
concluded
the
case doctrine to
probative value of the
be
because the
conviction should
overturned
outweighed by
substantially
the risk of
other-crime evidence was
Thus,
appeals
prejudice.
the dissents in both
were
undue
balancing
4
test
Evidence Rule
same reason:
under
appeal
have
excluded. This
is before the
evidence should
been
1(a)(2).
R.
the two
Court based on
dissents.
2:2—
II
issues,
dealing
we
Before
with
other-crime-evidence
problem
to the two dissents
procedural
address
related
on the law-of-the-case doc
Appellate Division. The State relies
Reldan,
trine,
495 Ad
explicated in
v.
100 N.J.
76
State
(1985),
cases,
argue
relied on the
that because it
and other
Appellate
introduced the
interlocutory
Division and
decision
evidence,
have
unfair to the State for
it would
been
other-crime
appeal to
reversed the
Appellate Division in the direct
have
the order of
evidence that was based on
admission of other-crime
panel.
first
is not
applicability of the law-of-the-case doctrine
prior
made
an
fact
decision was
affected
judgment.
appeal
to an
after final
interlocutory appeal
opposed
as
158, 164,
(App.Div.),
A.2d
N.J.Super.
1260
Myers,
denied,
Similarly, the
In the there is no need for an extended discussion of the law-of-the-case doctrine. This Court’s denial of the motion May 30, 1990, appeal preserved for leave to the issue of whether 4 balancing under Evidence Rule test the other-crime prejudicial limiting jury evidence was too to be amenable to a instruction. appeal, When this Court denied leave to an issue by framed the first dissent remained viable the event the any charges. convicted defendant of of the When defendant was charges, Appellate convicted on four of the Division in the appeal direct argument declined to entertain defendant’s that the unfairly prejudiced admission of other-crime evidence had him. That decision was based on the law-of-the-case doctrine. One of judges panel concurring opinion on the wrote a in which he sitting resort, stated if he were in the court of last he would argument. panel entertain the A second member of the filed a dissenting opinion in which he that the concluded law-of-the-case discretionary. doctrine plenary was That dissenter conducted a alleged prejudicial review of the effect of the other-crime evidence prejudice and found that the was so that a substantial reversal Thus, required. interlocutory appeal the dissents in both the appeal and the direct addressed the same issue and reached the same conclusion. interlocutory appeal
The dissent in the entitled defen by pursuant dant to seek review this Court 2:2-2. Rule Where irreparable case, non-capital harm cannot be demonstrated in a of leave to policy presented, is a denial public issue unless broad exception. by the rule rather than appeal this Court is 76; Reldan, In re 495 A.2d supra, 100 N.J. at Uniform Rules, 85, 100, If Admin. Procedure appeal has been appeal, once the direct denies leave this Court 2:2-l(a)(2) concluded, pursuant Rule appeal right there is an interlocutory appeal. The issues and in the on a dissent based dissent, appeal handled when the for a even one entered reasons 2:11-2, explained in an summarily pursuant to Rule should be required as parties and this Court opinion for the benefit 2:ll-8(a). Rule case, appeals below is the dissent in each of the present
In the the other-crime evidence. prejudicial effect of limited to *11 Hence, affirmed the trial court’s dissenters would have both dissents raise the same that evidence. Because both exclusion of 1(a)(2)makes a issue, right pursuant to Rule appeal of the 2:2— unnecessary our the law-of-the-case doctrine discussion of issues, dissents, however, raised different If the two decision. scope of the issues that inapplicable and the would be doctrine by right framed the two appeal in an would be be raised could dissents.
Ill Appellate Division in the First, must decide whether we the trial court’s interlocutory appeal erred when it overturned If the inadmissible. evidence was ruling that the other-crime erred, the error must then decide whether Appellate Division we requires to determine whether in turn us harmless which Rule 4 to exclude compelled by Evidence court was trial in the first instance. evidence
-A- trial, admissibility of other-crime of defendant’s At the time Currently, by Rule 55. controlled Evidence evidence was governed by is N.J.R.E. admissibility of other-crime evidence 404(b). Rule 55 stated: Evidence wrong Subject or civil on a that a committed a crime 47, to Rule person commit crime or civil his is inadmissible occasion, prove disposition to, specified wrong civil
wrong
that he committed a crime or
the basis for an inference
as
subject
such evidence is admissible to
48,
occasion
to Rule
but,
another specified
knowledge,
including
or
intent,
in
motive,
identity,
some other fact
issue
plan,
prove
of mistake or accident.
absence
[Evid. R.
55.]
that other-crime evidence
Rule 55 makes clear
Evidence
genuinely in
prove
other fact
only
if relevant to
some
admissible
151,
(1993);
Oliver,
141,
In addition to
necessary for [the
other-crime evidence must “be
dispute, the
Stevens,
301,
proof.”
supra, 115
at
558A.2d
disputed
issue’s]
nature,
determining
proba
damaging
Because of its
evidence, “a
consider ...
of other-crime
court should
tive worth
adequately
case can
be served
proffered
its
use
whether
Oliver,
833;
supra,
Id. at
see also
other evidence.”
(stating
important
factor
“[a]n
Once
genuinely in issue and that
the other-crime
material to a fact
proffered
necessary,
probative value of the
evi
is
“the
danger
carefully
against the
that it will
be
balanced
[must]
dence
Stevens, supra,
prejudice against the defendant.”
create undue
302,
probative
value is
483 55, conjunction in with Rule when examined focus of Evidence 4, it as a rule of exclusion rather than Evidence Rule is to view 328, 337-38, Cofield, 127 N.J. 605 A.2d of inclusion. State v. rule (1992). 230 determining many years of decisional law when
After
admissible,
four-part
has
is
test
been
other-crime evidence
designed
the over-use of extrinsic
That test is
to “avoid
distilled.
338,
wrongs.”
at
issue;
charged;
offense
in kind and
close
time
reasonably
2.
It must be similar
convincing;
of the other crime must be clear
3. The evidence
outweighed
must not be
its
value of the evidence
apparent
The probative
prejudice.
Balancing
(quoting
Guilt and
[Ibid,
Ordover,
Abraham P.
Presumptions Of
(1989)).]
404(b), 608(b),
609(a),
160
135,
Rules
And
38
L.J.
Emory
Innocence:
admissibility of other-crime evi
on the
Determinations
court,
trial
of the trial court: “The
are left to the discretion
dence
case,
knowledge of the
the best
of its intimate
because
balancing process.
Its decisions are
engage in this
position to
reviewed under an abuse of
deference and are to be
entitled to
Ramseur,
123, 266,
N.J.
524
v.
106
discretion standard.” State
DiFrisco,
434, 496,
(1987);
v.
137 N.J.
A.2d 188
see also State
(1994)
judges
accord trial
broad
(noting
“[w]e
A.2d 734
—
denied,
test”),
balancing
cert.
U.S.
applying
discretion
Atkins,
(1996);
949,
— ,
State v.
133 L. Ed.2d 873
116 S.Ct.
(1979)
(refusing
to reverse admission
A.2d 1122
N.J.
judge
probative value
trial
balanced
prior
conviction where
noting
“particularly in
prejudice and
against potential for
case,
judge’s]
the trial
we do not find [that
his feel of the
view of
him”);
vested in
abuse of the discretion
judgment constituted an
Sands,
127, 144,
Only where
v. has been an upset unless there ruling will not be trial court’s “[a] i.e., discretion, error of has been a clear there of that abuse 813, denied, 1017, L. 109 S.Ct. judgment”), cert. 488 U.S. (1989). Ed.2d 803 case, appellate trial and both at the primary focus this test:
levels,
prongs of the
first and fourth
is on the
Cofield
a material issue
relevant to
other-crime evidence was
whether the
of that evidence
probative value
and whether the
in the case
prejudicial effect.
outweighed its
Appellate Division
that
agree with defendant
We
not to admit the
trial court’s decision
it overturned the
erred when
discretionary
deter
The trial court made
evidence.
other-crime
Rule
under Evidence
the other-crime evidence
mination to exclude
showing
an
absent a
entitled to deference
4. Its decision was
i.e.,
discretion,
judgment.
error of
a clear
there has been
abuse of
Koedatich,
734;
496-97,
DiFrisco,
at
supra, 137 N.J.
313,
reviewing the
Rather than
-B- reversing the trial Appellate Division erred Because the the introduction of whether ruling, we must now determine court’s error. evidence was harmless the other-crime guilty plea argues the evidence of defendant’s The State intent and motive. it tended to show relevant because pled guilty to sexual had argues that the fact defendant killing a motive for awaiting sentencing suggests assault and was *14 theory It that defendant killed the the victim. was the State’s assaulting an sexually after her in order to avoid enhanced victim prison pending sentencing term on for sexual assault and to his prosecution yet further for another sexual assault. The avoid Guy stating testimony Bishop further that the of State contends having him he was consensual with that defendant told that sex responded by slapped when him that he the victim she and “her and realized it wasn’t grabbing the throat before he she jury’s breathing,” question raises for determination of a the murder, knowing purposeful aggra- the or whether homicide was manslaughter, passion-provocation manslaughter, reckless vated evidence, felony ac- manslaughter, or murder. The other-crime State, jury determining in and cording to the assisted the motive degree in to the of the homicide. intent order determine Furthermore, notwithstanding the trial fact that the defense at guilt, testimony Guy Bishop the general denial of require jury consider compelled the trial court to the to whether during death consensual sexual intercourse the victim’s occurred killing was accidental or intentional. and whether second-degree sexual charges against defendant included first and penetrated he with “When a defendant claims that assaults. puts argues he that permission, he his own state mind issue: reasonably affirmatively alleged victim had he believed that State, given penetrate. to there freely permission him fore, disprove that the defendant had can introduce evidence Oliver, 155, 627 supra, N.J. at A.2d that state of mind.” Thus, respecting mind relevant issue defendant’s state of was a F.C., the death of other-crime the sexual assaults and notwithstanding fact probative of those issues evidence was jury from prohibited trial instructions that the court’s respect with to the assaults. using the other-crime evidence mo- also to defendant’s The other-crime evidence was relevant filing her from killing: prevent silence F.C. to tive for thereby causing a revocation defendant’s charge assault sexual A sentencing on K.N. sexual assault. pending bail status possibility of also enhance the charge would sexual assault second Viewed the K.N. sexual assault. a more severe sentence to establish context, evidence was offered the other-crime genuinely in that were motive and intent case such as issues necessary because evidence was also dispute. The other-crime mind, as that such bearing defendant’s state other evidence during severely cross- attacked by Bishop, had been presented examination. evidence to be found other-crime past, the Court has
In the
Erazo,
126 N.J.
motive.
probative of intent and
showing
(1991),
introduced evidence
the State
487
Mulero,
54,
defendant was accused
A.2d 1118
532
Mulero, supra,
daughter
paramour.
of
beating
of
to death the
his
226-27,
He
that he had struck
51
238 A .2d682.
admitted
N.J. at
227-28,
victim,
A.2d
having killed her.
Id. at
238
but denied
that the
had beaten her
paramour
The
testified
defendant
682.
The Court held that admission of
previous occasions. Ibid.
probative
testimony
proper because was
defendant’s
was
striking the
regard to his
victim.
intent with
Cusick,
reached
same conclusion
Appellate
Division
sexually assaulting
child.
accused
where the defendant was
Cusick,
454,
N.J.Super,
at
The trial court years sexually assaulted two earlier. Id. the defendant had whom that, day question, the defendant testified on the at 438. She spot and drove her to a secluded picked up her in his vehicle kissing. Ibid. pair engaged in consensual When where the Fletcher, stop, him to he she told but defendant started to fondle gun, her to undress and to brandished a and ordered instead resisted, struggle him. she perform fellatio on Ibid. When ensued, slightly gun discharged, and Fletcher was wounded. “knew she would tell the Although he told her that he Ibid. trouble,” get in he then about him and that he would authorities home. Ibid. drove her proper that it was Supreme Court held
The North Carolina during the Johnson murder evidence of assault on Fletcher admit noting many Although dissimilarities trial. Id. at 438-39. assaults, that the “evidence contained the two it found between charged support a the crimes reason- sufficient similarities to person acts.” Id. at inference that the same committed both able to show discussing probative In value of the evidence motive, the Court stated: judies, to show of Ms. Fletcher was offered In the case sub testimony properly killing Fletch- Ms. Johnson: From his with Ms. defendant’s motive experience would to law enforcement authori- defendant knew that his crime be er, reported if he left his victim alive. and that he would suffer the
ties
consequences
[Ibid.]
Billa,
murdering
convicted of
Maria
the defendant was
Billa, supra,
Rodriguez
to death.
489 The defendant Ibid. “strangled her until she lost consciousness.” defense, stabbing claiming had been that in his own testified Pennsylvania Supreme held that Court Ibid. accidental. agree the Common- testimony properly admitted: “We with was prior on his victim of the sexual assault that the evidence wealth circumstances, significant eviden- was, relevant and of under motive, prevent to appellant’s tiary proving [which to value police], intent and the absence reporting him to the her from against his second crimes in the murder and other accident at victim.” Id. Billa, argument that accepted the Moseley both courts
In
commit
person
that a
had
here —that the fact
advances
the State
to kill his
probative of his motive
past
in the
ted a sexual assault
receiving an enhanced
prevent
from
to
defendant
latest victim
Billa,
439;
supra,
Moseley, supra, 449 S.E.2d
See
sentence.
proposition can be
support for that
Further
A.2d at 839.
555
found the
respective
court
eases in which
in three other
found
v.
are
States
Those
United
evidence to be admissible.
other-crime
1002,
(7th
denied,
Cir.),
115
Menzer,
513 U.S.
cert.
We conclude dispute. Defen- genuinely intent that were prove motive and her from prevent kill to F.C. have been motivated dant could his him, thereby causing revocation of charges against filing new enhance charge would also assault A second sexual bail status. assault for the sexual receiving greater sentence his chances addition, was relevant the other-crime on K.N. intend Bishop he did not Guy statement to refute defendant’s to the evidence available Finally, was no other kill there F.C. cases, the some intent. Unlike motive and to establish autopsy conclusive was less than physical evidence revealed *18 committing the regard to motive or intent with defendant’s was Consequently, prong the first of the test homicide. Cofield However, probative aspect of only means that the satisfied. that far. probative-prejudicial balancing has been satisfied so the test -C- irrespective proba- Defendant claims that of the relevance and evidence, tive the and intent it should have been worth of motive agrees prejudicial impact. dissent excluded because its with that assertion. can differ
This is a case which reasonable minds
and did
on
about the Rule 55 decision to admit other-crime evidence based
balancing
judges in
probative-prejudicial
the
At least
test.
two
Appellate
the
and five members of this
have
Division
Court
disagreed
prejudicial
court’s
that the
effect
with
trial
decision
required
of that
exclusion.
evidence
Although
imposed high
has
a
standard for
this Court
potentiality
its
admission of other-crime evidence because of
prejudice,
not
all
evi
cause unfair
it has
excluded
other-crime
upset
A
such
should
dence.
decision to admit
evidence
not be
outweigh[s]
danger
prejudice
probative
unless
...
“the
undue
jurors
a
and
value so as to divert
from reasonable
fair evaluation
Moore,
guilt
issue of
or innocence.” State v.
122 N.J.
basic
4,
420, 467,
(1991);
Wilson,
In this Court found that the introduction prior eleven-year-old motive of evidence of homicide establish Erazo, prejudicial. supra, not at intent was too 594A .2d232. Cusick, aggravated on sexual the defendant was trial for Cusick, upon eight-year-old an female.
assault and sexual assault supra, N.J.Super. 530 evidence at A.2d 806. Other-crime six-year-old that defendant had sexual- from three female children motive, intent, ly them admitted to establish assaulted was 464, 530 of mistake. Id. at A. 2d 806. court found absence prejudicial outweighed its probative value of the evidence that 464-65, A.2d 806. effect. Id. testimony in this case consisted
The other-crime
K.N.,
pled
upon
that he was
guilty
defendant
to sexual assault
that
murder,
jail
day
and that he
from
before F.C.’s
released
K.N.
at the
waiting to be sentenced on the
sexual assault
time
assault, nor
murder. Neither the details of K.N.’s sexual
F.C.’s
statements,
placed
except
any
impact
jury
were
victim
before
K.N.
offense
for the fact
was informed
probative
by five
predated the F.C. murder
months. Whether
outweighed by
prejudicial
of such evidence was
its
effect
worth
*19
pragmatically
must
in the context in which
defendant
be
evaluated
Stevens,
supra,
its worth and effect case, waiting to be sentenced present the fact that defendant was prong of assault the second on the five-month-old sexual satisfied in other-crime must be “similar test: that the evidence Cofield charged.” in reasonably close time the offense Co kind and addition, 127 605 because field, supra, N.J. at A.2d 230. recent, so he guilty plea were the assault on K.N. and defendant’s Consequently, his for that sexual assault. had not been sentenced probative sentencing conduct that had substantial criminal before severity of the impact have an worth because it could permitted by range sentencing discretion sentence within the obligation imposed upon the plea agreement. Given mind, the other-crime evidence was prove defendant’s state West, “inextricably the material facts.” State entwined with (1959). Indeed, 327, 335, this Court has recognized defendant] that as to motive a criminal [of “evidence may in it though prejudicial the sense that even it be admissible State v. jury against the defendant.” inflame the arouse or will Carter, 86, 106,449 A .2d1280 balancing probative of the worth Many times the delicate tipped can be prejudicial impact against its evidence other-crime that evidence anticipated misuse of based on in favor of exclusion case, than during In this rather by prosecutor summation. argued that the jury, prosecutor propensity to the arguing her. killing was to silence motive for F.C. defendant’s jail right going going and he was to be away If didn’t silence he was her, put he August just guilty ... on get assault, to a sexual rape time. He had more pled recognizance [and] ... if had let own he released ... on his He had been 25,1988. go go would that would mean is that he to the and what her she would live, police jail, get [at told time than what he had been plea and he would more back hearing] get assault. [because the] ... second sexual he would in the other-crime evidence pragmatic Our evaluation that leads us to conclude it was offered context which any prejudicial effect outweighed of that evidence probative value strengthened the fact That conclusion is on defendant. jury not to consider the other-crime court instructed the the trial concluded from any purpose until after the had perpetrated the homicide. evidence that defendant other
-D-
the admission of other-crime evidence
are also satisfied that
We
discretionary decision to exclude was
trial court’s
over the
ruling concerning Rule
Although a trial court’s
error.
harmless
deference,
ruling
preclude
not
does
is entitled to
55 evidence
interlocutory
in the
Appellate
Division
appellate review.
*20
in
court had abused its discretion
appeal found that
the trial
has made a
evidence. This Court
excluding the other-crime
Balthrop,
past.
In State v.
in the
similar determination
record,
(1983),
appraisal
542, 546,
on its
of
IV The final issue to be decided is whether the trial court’s jury limiting instructions the use of the other-crime evidence were adequate. was instructed as follows: gentleman. Evidence also can be admitted for limited ladies and In purposes, tending other it can be admitted as evidence facts in words, certain issue prove
but for no other and have that in I facts, we evidence like this want case, particular to deal with at this point. gentlemen, recall, You’ll ladies and that there was some testimony presented alleged that that at indicated the time this offense is to have you happened, awaiting guilty charge defendant was sentence after a on a of sexual assault. plea and that Now, evidence could be used for a limited testimony only by you charges and I will It that to cannot be used on of the purpose, explain you. any charge. that have with been the State of the homicide presented by exception And with reference and that means that it can’t be considered connection by you charges. with of those other In addition to of that any that, consideration your charge, instructing evidence in reference the homicide the Court is is to be you used on a limited basis and that is as follows: charge It cannot be used even the homicide unless by you any purpose and until have found from all of the other evidence in the case you independently a reasonable doubt that the defendant was, fact, the beyond perpetrator alleged homicide that’s words, the State. other can use that evidence for you no until such as time have determined from all of the other if purpose you evidence, do so determine that the defendant in fact the is, one who caused the death you [F.C.]. have determined that If, fact, doubt, reasonable then you beyond you consider the evidence that was with reference to the defendant’s may presented awaiting and his sentence on sexual assault on issue of the defendant’s plea committing motive and his intent in the homicide in order to determine the type degree of the homicide. gentlemen, that, So ladies and instructions to are that not use you my you may that evidence in considerations for in connection with your any purpose your charges kidnapping aggravated or considerations sexual assault and use that evidence after consideration of all of the other evidence only you may your that other evidence that the has determination based your upon proven a reasonable that the defendant is the one who caused the death of doubt, beyond *21 then use that evidence to determine the victim]. At that [the you may point, it to do so. motive intent of the defendant if helps you or attorney represented de- Interestingly, the defense who same participated in trial and both the State’s throughout the fendant evidence and the interlocu- application to admit the other-crime attorney object jury charge. same tory appeal, not to the did appeal Appellate to the Divi- represented defendant his direct jury charge no the was inade- where claim was made that sion of the dissents raise the issue quate. Nor did either for jury The issue is the first adequacy of the instructions. raised appeal is before the Court. Because defendant’s time before this dissents, are limited on the the issues to those based two Court 1(a)(2). Technically, the by the R. issue of framed dissent. 2:2— limiting us. adequacy the instruction not before Howev- the of er, Appellate Division made a we have found that because trial not to error when it reversed the court’s decision harmless evidence, other-crime we are constrained to consider admit the limiting part of our harmless error adequacy of the instruction as analysis. flawed in three
Defendant contends that the instruction was (1) explain intent and respects: [of it failed to “abstract issues jury apply could motive] ] in context or how it illustrate[ had crime to those issues which the evidence other evidence (2) admitted”; to “relate instruction to it failed the limited been types degrees subsequent respecting the instructions (3) homicide”; jurors they it were failed to “inform the prior sexual assault to determine that not use person, he had been was a bad or to determine that defendant charged disposed to commit the crimes in the indictment.” We plain-error rule. Rule examine those contentions under will any “clearly capable producing not provides that error 2:10-2 n unjust disregarded. Under that standard the an result” shall be possibility created a becomes whether instruction issue injustice, to mean sufficient to raise a reasonable defined “one error led the to a result otherwise doubt as whether the Macon, supra, 57 N.J. at might not have reached.” *22 whole, instructions, jury conclude that the considered as We “clearly being capable producing an do not rise to the level unjust R. result.” 2:10-2. admitted, is “the court must
When other-crime evidence
Cofield,
jury
on the limited use of the evidence.”
instruct
Stevens,
340-41,
230;
supra,
supra, 127
at
605 A.2d
see also
N.J.
304,
inherently prejudi
at
Unlike jury not use the other-crime specifically tell the that it could not person he a bad or that to conclude that defendant was evidence clearly in rapist. This omission is propensity to be a had the anti-propensity that the contradiction to this Court’s conclusion limiting instruc point to made in the instruction an essential be Stevens, supra, 558A.2d 833. tion. 115N.J. Nonetheless, the other- the trial court’s instruction not use except any purpose for motive and intent crime evidence for other charge implicitly jury to use the told the not on the homicide propensity. The evidence could not be other-crime evidence for guilty of homicide found defendant used before independent of beyond a reasonable doubt based on though even the evidence was admitted other-crime evidence intent. show motive and addition, guilt, independent of the other- the evidence *23 evidence, overwhelming. nearly Defendant was
crime was seen at a leaving party the with F.C. and later seen with her bar. Mend, Guy Bishop, to who also was an Defendant admitted his jail, had with at the time defendant was in that he sex F.C. inmate Agent FBI that the Special and that he killed her. An concluded pickup evening drove created a tires on the truck defendant that groove pattern those the murder scene. The same “similar” at growing body type vegetation near where the was of protruding undercarriage of found from the the discovered was the truck was found to truck. Wood that was the bed of be very to the in the victim’s throat. Defendant was similar wood possible a of semen found on the determined be source victim’s sweater. hand, generally are “to
On the one courts reluctant objection grounds plain error when no to a reverse on the of Weeks, 396, 410, charge N.J. 526 has been made.” State v. 107 “ hand, A.2d 1077 On the other ‘incorrect instructions poor under the harmless law are candidates rehabilitation ” Wilson, 241, 233, theory.’ A.2d error v. 128 N.J. 607 1289 State 1077). (1992) Weeks, 410, supra, (quoting 107 N.J. at Here, incomplete however, problem instruction rather is an the law. than an affirmative misstatement of
497
Hunt,
330,
(1989),
v.
115
558
State
N.J.
A.2d 1259
this
give
limiting
found that the failure to
a
Court
instruction on the
Hunt,
proper
use
other-crime evidence was harmless error.
363-64,
supra,
recently,
115
at
N.J.
Our consideration guilt overwhelming independent of the near evidence of of the evidence, other-crime convince us that the failure of the trial court give sufficiently limiting governing instruction the use of the “clearly capable producing other-crime evidence was not an unjust Cofield, supra, A.2d It result.” tip jury’s did not the scales deliberations.
Accordingly, judgment Appellate Division is affirmed. J., O’HERN, concurring. judgment
I concur of the Court for reasons different from majority. majority those stated reasons that *24 substituting judgment Appellate Division erred in its for that of discretionary ruling concerning the trial court on its the admission I of other-crimes evidence but that the error was harmless. agree salvaged that the conviction can be under harmless- cannot analysis. say Appellate in error To the Division erred reversing say trial court to that the evidence of other crimes the is in, If not come should not have come in. the evidence should have in case not been the admission of the evidence this could have harmless. judicial it but must error] resources,” is essential "to conserve [harmless rule to “the of the rules and be caution so as assure vitality procedures with applied designed fair trial.” assure prejudice the of a admission There enormous potential improper suggested error Commentators have that such convictions. prior defendant’s [1970], The Riddle Harmless Error should be considered harmful se. See per of Chief Justice wrote: Traynor
where
high
risk
of other crimes also carries such
The erroneous admission of evidence
prejudice
of
call for
as
reversal.
ordinarily
jurors,
the
of
tend to have an
on minds
incalculably potent impact
Prior convictions
are
of
defendant’s criminal
and there-
both because
evidence
they
proclivities
prejudice
guilty
charged, and
he is
as
because
can
they
fore of
likelihood that
jury against
as
them to convict him a “bad man”
the defendant and lead
regardless
weight
of
of evidence.
(App.Div.1977),
[State v.
A.2d 718
rev’d
Atkins,
555, 570, 377
N.J.Super.
charge
burglary
was
on issue
intoxication
primarily
of
(internal
omitted)
(1979)
Defendant assault, and second- first-degree aggravated sexual kidnapping, prosecution’s theory of the case was The degree sexual assault. area, her, raped took his victim to secluded that defendant theory killing was intentionally The killed her. then supposition defendant on the that because intentional was based offenses, it was prior sexual he believed had committed escape for his in order to detection necessary to kill his victim trial, Thus, prosecution prior the commencement of crime. awaiting sentenc- that defendant was introduce evidence moved to pled guilty in order to which he had ing prior on a sexual assault intended to kill the victim.1 that defendant to demonstrate prosecution’s At the close of trial court reserved decision. granted case, Appellate Division denied the motion. the court and, ruling over appeal this prosecution’s motion for leave admission of the other- judge, ordered the the dissent of one This Court denied trial court excluded. evidence that the crimes order, and the appeal appellate motion for leave to defendant’s during examination subsequently admitted evidence was murder, murder, felony convicted of Defendant was defendant. by a first-degree aggravated assault kidnapping, and first-degree jury- charged sexual assault in two prior Defendant had been separate actually agreed exchange guilty which the to one in
incidents, prosecutor but pled charges other incident. all related to the drop *26 must, concedes, for the that it was error majority The as inflammatory highly of this court to order the admission appellate concedes, must, the as that majority then it also The evidence. very prior to this portion jury of instruction related the evidence— and murder— prosecution in a for sexual assault sexual assaults Despite these prior our satisfy the demands of decisions. failed error, manages majority still to conclude of the two concessions he is provided the fair trial to which this defendant was that outcome, the seemingly predetermined reach its entitled. To seriously analysis. harmless-error majority employs a flawed
I extensively developed stan carefully and the This Court has govern admissibility use other-crimes evi that the and dards 328, 127 prosecutions. Cofield, in criminal dence (1992), synthesized principles the of the two A .2d we 230 rules, evidentiary and N.J.R.E. 404 now N.J.R.E. 403 relevant 55, respectively), four- (formerly R. 4 Evid. R. into a Evid. and part admissibility: standard of crime must as relevant to a material 1. The evidence of the other be admissible
issue; charged; must close in to the offense 2. It be similar kind and time reasonably convincing; must and and The evidence of the other crime be clear outweighed value of must not be its by 4. The the evidence probative apparent prejudice. 230.] 338, 127 N.J. at A.2d supra, [Cofield, prongs majority correctly identifies that the first and fourth However, majority are at issue this case. the formulation analysis its on the inappropriately concentrates harmless-error prong. Seemingly only after-thought as an scant first with yet prong; prong it turn to fourth attention does this for exclusion is the crux of trial court’s actual reason be so [of evidence] the other crimes would case—that “admission prejudicial possibly follow court’s could not instructions----” case, regarding evidence
In this the trial court conceded that may to demonstrate that the prior sexual offenses be relevant pre-trial had a to kill his At the eviden- defendant motive victim. issue, hearing prosecution presented tiary on this four wit- support position of its that the other-crimes nesses by (allegedly K.N. victimized defendant on was admissible trial: 1988) (the Trooper Lopez trooper and State Andrew March incident), investigated (allegedly I.F. defen- victimized who 1988) Benny Officer Velez on March and Vineland Police dant incident). (the presenting the investigated who this After officer witnesses, argued that the testimony prosecution those four motive, intent, prove admissible to state other-crimes evidence was mind, identity, prosecution’s of mistake. and absence *27 however, prior argument, was the crimes were primary that motive kill: to that had a to admissible to demonstrate defendant thereby prison. The court victim avoid a return to silence his and motion, as to whether the evi- the but reserved decision denied had a be to that defendant could admitted demonstrate dence kill the motive to victim.2 case, the prosecution renewed
At the conclusion of its the having After heard to admit other-crimes motion the evidence. days course testimony thirty-eight of over the of five the witnesses trial, that: the court concluded going going to allow in. It [the motion]. I don’t think that I’m it may I’m to deny of trial on the basis of Rule but because the type admissible superficially be charges, them that I to admit for the limited involved and the think we’re prejudicial going is Rule so that the court to deny your under 55 would be purposes motion. prosecution, protest to the court elaborat- response the that: ed although argument____ I I it and clearly, remember your very
I remember the on it at that time to see what the State presented support reserved decision charge I have that in I’ve on it. concluded matter, assault in the reflected sexual might crimes the other evidence court also left open possibility charged aggravated offense of intent to commit be relevant demonstrate assault. sexual sexual assault the admission of circumstances, because of the case, prior this while it satisfy requirements for Rule 55 may convictions even purposes generally that it does —but that may, by 55 —and I’m not so sure Rule charges matter, in this feels that because of the token, same the court prejudicial court’s could not follow the so that the possibly admission would be There- be used for a limited purpose. that it could reasonably very instructions going court is not to let it in. fore, the the other-crimes evidence that the court excluded It is clear poten- outweighed by its any probative value was ground that jury against The trial court prejudice the the defendant. tial to evi- that the other-crimes from its determination never wavered Appellate overwhelmingly prejudicial. After would be dence reiterated exclusionary ruling, the trial court reversed its Division ground for exclusion: reemphasized its going just prejudice great that it should not come in. So what’s I think the so awaiting assault, on a sexual that the in is ... the fact that he was sentence come jail just fact that he to this and the incident, of time that he was prior period guilty to it. pled majority correctly recognizes that it was error for of the other-crimes appellate court to have ordered the admission deliberatively concluded it should after the trial court so court’s admitted. Ante A .2d at 300. The trial not be respect, not because the evidence was entitled to decision relevance, engaged had logical but because the trial court without impact prejudicial kind of contextual evaluation of ratification an warrants deference and that evidence that inflammatory previously, appellate “th[e] court. As we have said ... mandates a careful characteristic of other-crime evidence *28 courts, specific context by trial based on the pragmatic evaluation offered, proba the to determine whether in which the evidence is outweighs potential for undue of the evidence its tive worth Stevens, 289, 303, 115 A.2d 833 prejudice.” State v. 558 (1989). Thus, differ about [do] “reasonable minds can and when based on the the R. 55 decision to admit other-crime evidence 303, 490, test,” A at ante balancing at 691 .2d probative-prejudicial require the trial principles law that fundamental of evidence these precedence. court decision take
503 ruling by majority salvage patently the mistaken The seeks purports in its mission Appellate It to succeed the Division. foreign to analysis totally a sort embarking on a harmless-error extraordinary jurisprudence. preserve In an effort to this Court’s conviction, feigns it indifference to the internal inconsistencies this majority logically that the analysis. The cannot concede in its own it the of this Appellate Division erred when ordered admission (‘We evidence, agree at with ante at 69 A.2d 300 defendant trial Appellate Division erred it overturned the that the when evidence”), then admit the other-crime court’s decision not to support its result. Ante at rely on that erroneous order as See concerning (“Although ruling at a court’s trial deference, not ruling that does Rule 55 evidence is entitled appellate Appellate The Division the interloc preclude review. its utory appeal the trial court had abused discretion found that evidence.”). all. excluding the That’s not It conducts other-crime conclusion, counting as votes referendum validate its judges Appellate who “erred support of its result the two Division the [by] overturning] trial not to admit ... the court’s decision 491-92, ante at 303-04 crime evidence.” See at A.2d other (“At Appellate members judges two in the Division five least disagreed have with trial court’s decision that of this Court exclusion.”) required evidence prejudicial effect of that logical majority’s analysis unduly relevance focuses The fallacy approach in the evidence. Court’s of the controverted effect, admissibility; in equation logical relevance its with is Cofield, neglecting weight first-prong to the gives determinative required by prong. fourth balancing is kind of many support great eases that majority thus cites and discusses 486-90, ante is relevant. See position this evidence of the trial support cases do the conclusion A.2d at 301-03. Those first- logically and satisfies the relevant court that however, law, does address not prong of That decisional Cofield. admission the error in this case—the issue of whether evidence, impact of prejudicial logically such relevant harm- outweighs probative its worth —was which *29 Moreover, by majority this or cited the where less. other cases prejudice facts that appellate court found on distinctive another distinguishable. sufficiently outweigh probativeness are did not ante at 691A .2d 303. See
II upon depends harmless some “The of whether an error is test unjust possibili it led to an verdict. The degree possibility real, a reasonable doubt as to ty must one sufficient to raise be might not to a result it otherwise whether the error led Bankston, 263, 273, have reached.” State requires reviewing to examine the court This standard may have led to an to determine whether the error trial itself analysis unjust requires permits nor an verdict. It neither one, whether, present facts similar to the in another case with permissible trial court to admit the other- have been for the would proffered prosecution. here crimes evidence analysis or not the error was harmless proper A of whether begin findings with the of the trial court. The this case should prejudice did not base its determination trial court unavoidably emanating out- from the other-crimes analysis made in weighed probative its worth on an abstract prudently prosecution’s evidence. It deferred advance of admissibility provided opportunity until to consider ruling on case; it is prosecution of the at the conclusion its the evidence unduly that admission would in that context that the court found prejudice jury against defendant. The court felt that “because referring to the nature of the of the circumstances of this case”— prosecution aggra- prior and the fact that this was a offenses jury would be unable to sexual assault and murder —the vated could be considered to an instruction that the evidence follow perpetrated by the defen- only degree of homicide determine dant. trial, familiarity progress with the of the
Because of its
evidence, the feel of the
quality
prosecution’s
nature
*30
defendant,
courtroom,
jury’s impression of
and sense of the
the
piece
opinion
impact
particular
of
of
the
court’s
as to the
a
trial
great weight
retrospective
harm
given
should be
the
evidence
analysis
by
reviewing court. That is
less
undertaken
a
error
keep
to
especially
of the trial court
so when it is the decision
although
jury,
the
a decision to admit
certain evidence from
under
is
to broad deference
the
certain evidence
also entitled
Carter,
86, 106,
See State v.
abuse of discretion standard.
(1982) (“On
review,
appellate
the decision of the
Clearly
the determination of whether an
relevant to
is the other evi-
of other-crimes evidence is harmless
admission
which the evidence was
jury
the
on the issue for
dence before
Here,
in its initial
appellate
the
court
wrongfully admitted.
interlocutory ruling
of the other-crimes
ordered the admission
type
used
determine
ground
on the
that it could be
to
evidence
That,
by
repeat,
to
degree
committed
defendant.
and
of homicide
evidence,
logical
and that
only
has
to with the
relevance
do
analysis
An
as to whether it was
ruling,
agree,
we all
was error.
cannot, however,
overwhelming
look to
evidence
harmless error
act; rather,
is,
of the homicidal
guilt, that
the commission
overwhelming evi-
on whether there was
analysis should focus
issue for
to commit murder —the
of defendant’s intent
dence
proffered.
It
erroneously admitted evidence was
which the
majority
point
to
over-
inappropriate
therefore
man,”
“got
right
such
whelming
prosecution
that the
evidence,
such as
jailhouse
and circumstantial
as the
statement
scene, and the
tire tracks left at the
groove pattern of the
similar
vehicle.
from the defendant’s
debris recovered
purpose
jury
manslaughter and
charged
on both
The court
murder was
murder,
intent to commit
thus the defendant’s
ful
admits,
candidly
majority
in the case. As the
a crucial issue
this defendant
virtually
any
indication that
barren
record is
evidence.
murder aside from the other-crimes
intended to commit
closing,
prosecution
A
at 306.
ante at
.2d
See
kill
evident based
intent to
argued to the
that defendant’s
(1)
Guy
interpretation of defendant’s statement
facts:
an
on two
(2)
prior sexual
provided
kill
the two
Bishop,
the motive to
going
prison.
Of
the fear of
back
convictions and
assault
*31
course,
Guy Bishop
the victim died
to
defendant’s statement
—that
only a man
support
would
during rough sex—in and of itself
Indeed,
supports
position that
it
defendant’s
slaughter conviction.
however,
purposeful.
prosecution,
not
the victim’s death was
attempt by
testimony
Guy Bishop was an
argued that
the
prosecution’s main
intentional act. The
to minimize his
defendant
theory:
from its motive
argument on this issue derived
gentlemen.
[know]
Now,
what
motive
ladies and
is,
you
now
know
the
Well,
you
jail right
going
in
If
didn’t silence
he was
to be
her,
he had to Mil her.
he
put
why
just
guilty
going
get
had
to a sexual
to
more time. He
pled
and he
away
August
He had been
25,1988.
That’s what a sexual assault is —on
a
assault,
rape.
(on
good
recognizance)
to
and if
which meant that he had
be
released ROR
his own
if
had let her
she
live,
couldn’t let her
because
he
her,
live,
he —he
but he
raped
jail,
get
go
in
that would mean is that he would
back
would
to the
and what
police
get----
get
told
would
So he
more time than what he had been
he
and he would
gentlemen,
he
to silence her. That’s
ladies
why,
couldn’t let her live. He had
Mlling
motive for
her.
[F. C]____that
killed
is his
jury
convict
light
fact that this
had
choice between
of the
manslaugh
purposeful murder or reckless
ing
of either
defendant
ter,
possibility that
the
inescapably raises the real
the record
jury
other-crimes evidence “led
admission of the
erroneous
might
reached.” Bank
that it otherwise
not have
reach a result
ston,
273, A
supra,
Also relevant may jury. it seem somewhat counter- provided to the At first appropriate to a situation think that an instruction intuitive to jury operate to properly could where the evidence is before erroneously evi admitted a conviction from the taint of “save” however, acute, may problem more where the dence. be prove was not relevant to ground for exclusion is that the evidence all, comprehend is in the case. After difficult to a material issue jury on go instructing the how to how a trial court would about any in piece not relevant issue properly handle evidence case, however, ground for was the trial In this exclusion case. unduly prejudicial to was too be court’s sense that the evidence safely jury. recognized that other-crimes We have before G.S., always prejudicial. is almost Any finding prejudice not A.2d 1092 does outweigh necessarily dependent substantially probative worth jury guarantee that instructions that will on correct effective by determining admissibility will struck the court the balance by its of that evidence. maintained assessment be even more Consequently, the role of the instruction becomes in retrospective harmless-error critical and determinative adequacy and inquiry an examination of the quiry. That demands case.3 It is a efficacy in the context of the entire instruction therefore, majority’s analysis, that it fails consider flaw in the part within concededly jury instruction as a of and inadequate of the other-crimes evidence analysis of whether the admission its logically Only performing a artificial harmless error. itself was subjecting analysis its treatment then “bifurcation” —and *32 demanding “plain error” stan- the more jury instruction to 3 though, could itself render unclear, even an ideal instruction by It is whether in a case such as other crimes evidence the erroneous admission of harmless excluding a court takes the extraordinary step this. When trial relatively prejudicial, ground it is court presumably on the too relevant evidence and detailed to a so plans provide comprehensive does on assumption concludes, on with the trial itself When the most familiar instruction. person instruction would not sufficiently protect that even an ideal this assumption, court right to see how an trial, a fair I am hard pressed appellate defendant’s to hindsight. could reach conclusion contrary
508 majority purport
dard —can the to claim that the error in the use of the other-crimes evidence was harmless.
Ill
many
emphasized the critical
On
occasions this Court has
importance
guide
jury’s
of a sound instruction to
use of
See,
inherently prejudicial
e.g.,
other-crimes evidence.
v.
State
(1993)
Oliver,
141,
(holding
144
133 N.J.
627 A.2d
that other
properly
jury
finding charge
crimes evidence was
before
but
evidence);
inadequate
properly guide jury’s
Cofield,
to
use of that
328,
(reversing
supra, 127 N.J.
509
J.,
efficacy
perfect limiting in
concurring) (questioning
of even
cases).
place
I would
an extraordi
in some other crimes
struction
justify a conviction
narily heavy
on the State to
obtained
burden
limiting
to such
an insufficient
instruction relates
a case where
good example
a
inflammatory
A
case which
evidence.
despite an insufficient instruction is
conviction was sustainable
There,
G.S.,
460,
supra, 145
A .2d 230 use other-crimes evidence to show jury could not formed offense, charged predisposition to commit it did not defendant’s specific purposes which evidence sufficiently inform as to for used). could be
IV
other-
that even where
message
prior
our
decisions is
jury, near-perfect
instruc-
properly before the
crimes evidence is
have found an
cases where we
those rare
tion
essential.
error or an otherwise
instruction to be harmless
insufficient
reversal,
charge
ground
it has been because
inappropriate
“negative
ideal instruction:
thoroughly emphasized the
side”
*34
jury
that the
could not use the evidence as indicative of defen
See,
G.S.,
predisposition.
e.g.,
dant’s bad character or criminal
460,
Stevens,
supra,
1092;
supra,
289,
145 N.J.
678 A.2d
awas recital of those that, non-homicide for the “So ladies and gentlemen, instructions to are that not use my that evidence in you you may your considerations in connection with any purpose considerations of the your assault____” charges kidnapping aggravated or sexual
VI
majority
that all of
opinion,
of its
states
At the conclusion
regard
trial are either harmless
committed with
to this
the errors
overwhelming evidence of
plain
not
there was
or
error because
Although
For affirmance —Chief POLLOCK, O’HEARN, GARIBALDI, and COLEMAN— STEIN
Dissenting HANDLER —1. —Justice