State v. Rose

19 A.3d 985 JERSEY, PLAINTIFF-RESPONDENT, STATE OF NEW ROSE, v. ZARIK DEFENDANT-APPELLANT.

Argued January Decided June2011. Defender, argued the Deputy Public Brody, Assistant Susan Defender, (Yvonne attor- Segar, Public appellant Smith cause for ney). General, Muroski, cause for Attorney argued the Deputy

Frank (Paula Dow, Jersey, Attorney of New General respondent T. Mitchell, Attorney Muroski, Deputy Robyn B. attorney; Mr. Thomas, Attorney Deputy Gener- General, Special Ashlea D. and briefs). al, and on the of counsel for amicus curiae Associa- argued the cause S. Perrone Alison Jersey. Lawyers of New of Criminal Defense tion opinion delivered the of the Court. Justice LaVECCHIA convicted, accomplice, Zarik was as Defendant Rose the purposeful Mosley. theory murder of Charles The State’s at trial jail arranged was that defendant for the murder while in and go charges attempted about to to trial on earlier that he had appeal, victim. In murder the this we address whether evidence previous pend- defendant’s indictment and incarceration ing attempted charges murder was admissible in defendant’s trial for murder. disputed through evidence was introduced at trial several

sources, highlighted. Larry which two of deserve to be Graves that, jail together testified while he defendant were and approaching, Graves’s release date was him defendant solicited fact, Mosley. pled guilty kill In aggravated manslaugh- Graves and, killing Mosley pursuant agreement ter for to his with the State, against Puglia, testified defendant. Salvatore who also met jail, defendant while the two were testified that defendant had having Mosley mentioned making “whacked” or sure he did testify pending attempted in connection with charge murder against defendant. The pend- State’s evidence about defendant’s ing attempted Mosley, indictment murder addressed Graves, through anticipated testimony Puglia pretrial by reviewed the trial court and declared admissible. The testimony court determined that Graves’s was admissible res gestae, circumspectly provided jury limiting but awith in- Puglia’s testimony, struction about the use of the evidence. As for analyzed Jersey the trial court it under the rubric of New Rule of 404(b), Evidence found that it was not evidence of another crime crime, but rather was involved this admitted testimony concluding probative after that its value was not out- weighed by prejudicial again provided its effect. The court limiting jury’s instruction to channel the use of that evidence. trial, During stipulated defendant copy to the admission of a attempted charges. his indictment on the murder and, appeal, purposeful murder on was convicted of Defendant However, specifically finding affirmed. Appellate the Division evidence, disputed panel the in the admission of the no error fundamentally analysis in a different based on Evidence engaged certification, grant 403. issued limited Rules We (2010), Rose, only A.2d 465 to address the State prior pertaining to defendant’s indict admissibility of the evidence charges attempted to murder ment and incarceration on he victim, judgment Appellate Division. and now affirm the disputed evidence was admissible under conclude that the We 404(b). evi application of Evidence Rule straightforward motive, chiefly also non-propensity purposes, but dence went to defendant, provided by and the trial court instruc plan and intent to those jury’s use of the evidence properly tions that limited purposes. legitimate court, counsel, said, trial positions taken

That the various analyze disputed on how to evi- Appellate and the Division charges relating previous indictment dence defendant’s victim, that there exists attempted murder of the demonstrate common law doctrine of uncertainty about use of the confusion and Jersey’s of New gestae its status as a viable feature res Accordingly, appeal in this jurisprudence. we address gestae explanation for the of res the continued invocation evidence, of res no hold that the doctrine admission Rules Evidence. longer vitality light of the formal has I. issue, rulings in of the evidential stage To for our review set in the criminal begin a recitation of the facts involved we with charges against defendant.

A. charges relating to the incarcerated on In defendant was Mosley, victim in the the murder attempted murder of Charles jail, Puglia,1 met and ex- present appeal. While in defendant $1,500 Mosley had an altercation over plained to him that he and Puglia, Mosley According to defendant told him owed him. during thing led to another” and that that altercation “one charges” against Mosley subsequently “pressed some serious de- Defendant told fendant that defendant felt were “overinflated.” against Puglia Mosley appear he not want to as a witness did pay [Mosley] plan off B “plan him at trial and that A was to and get him was to whacked.” jail awaiting in trial on

In the fall of while still acquainted attempted charges, murder defendant became with Graves, Graves, According him a fellow inmate. to defendant told Mosley on several occasions that he needed killed because his trial 1, Mosley to start on to be the was scheduled December and was key prosecution’s witness. When Graves informed defendant that jail, propositioned he was soon to be from defendant him: released $2,000 Mosley, give if would kill him to Graves defendant would $3,000 quantity drugs. agreed, conveyed pertinent

Graves so defendant details about Mosley: gave Mosley’s telephone defendant him number and Franklinville, Jersey, Mosley address New and told him that They planned sold automobiles from his home. to have Graves lift, express interest in a truck with an automatic use that interest gain Mosley’s into at the front of entrance an office located house, Mosley. kill and then Defendant also warned Graves that kept guns Mosley They agreed in his house. further that after done, inform the deed Graves would defendant whether he car,” having Mosley. had “sold the which was code for killed 19, 1997, jail When Graves was released from on November he Glassboro, there, step-mother’s to his went home and from took 1The State’s brief and the Division’s refer to him as Appellate opinion Puglio; Puglia however, Salvatore defendant's brief refers to him as Salvatore Puglia according spelling that is also the Mr. transcript provided hearing. Accordingly, spelling we use the obtained from the pre-trial hearing. pre-trial transcript day. Mosley’s next he arrived at a bus to Franklinville the When home, Mosley house, attempts his to contact found no one he night, placed a That defendant by telephone were unsuccessful. and asked whether Graves had “sold collect call to Graves not, ear,” that he but that he responded to which Graves had following day. planned Mosley’s Graves returned to return home, day; again but this Mosley’s no one was home next night, Mosley by phone. That managed to contact time Graves he had “sold the again called Graves and asked whether defendant negative, responded in the defendant sounded car.” When Graves worried”; to return the ... he instructed Graves “little bit following day. Mosley day a and found returned the next for third time

Graves speak to with him about Mosley He told that he wanted at home. Mosley’s into office. As the conversation a truck and was invited Mosley Mosley seemingly grew suspicious of Graves. progressed, window, told Graves that someone had tried pointed to a cracked house, was now “in the to into his and that individual break “uneasy” and rose cemetery.” grew and “uncomfortable” Graves leave, carrying plan. As having changed his mind about out to door, something about Graves “mentioned he walked towards the [defendant],” Mosley “jumped up grabbed point at which swung it at lug from the side of his desk and crowbar or a wrench” object, grab Mosley, managed dodge to Graves Graves. gained object and began Graves control of the the two to wrestle. Mosley Mosley then choked it to in the head. Graves used strike took a “few hundred appeared until to be dead. Graves he weapons, Mosley’s from wallet and searched house dollars” night, That received another up empty-handed. Graves but came defendant, car.”2 whom he told that he had “sold the call from death, against Mosley’s charges defendant As a result of 1997, jail. and he released from dropped in December was were jail placed to Telephone calls were from the records confirmed that collect 21, step-mother's November and 22. Graves's house on him, house, him that he thanked and told to Graves’s He went soon, actually paid money pay him but he never get would anyone to tell about also cautioned Graves not Graves. Defendant happened. what had was involved Mos-

Although police suspected that defendant unable, him to the death, they initially, to connect ley’s were only police collected was forensic evidence that the murder. into any when entered fingerprint produce that did not matches System. Fingerprint Identification the Automated However, later, sting operation led a few months an undercover marijuana.3 The officers who Puglia’s for distribution of arrest help them Puglia would be able to believed he interviewed Mosley’s Puglia agreed to wear a death. defendant connect a consen- with defendant4 and to record his conversations “wire” prosecutor’s intercept was obtained from sual authorization Lorusso, Puglia’s acting undercover as office. Detective Danielle February Puglia around. On girlfriend, drove and defendant having someone Puglia spoke with defendant about when killed, cryptically his up him defendant referenced who had set times, following Mosley including the recorded with a few situation exchange: talking night [Puglia]: s* *t last man. That pussy (indiscerni- get him that much to [Defendant]: I mean it won’t even cost Yo, you

ble). get TPuglia]: him f* *ked To up. killing just, gonna, I I it’s not worth [Defendant]: really Oh mean don’t think you it was situation, with me it was it a life or death it, either, but I mean

them, life all that time behind bars ... either my [Puglia]: What’d offer they you[?]

[Defendant]: Or his life. man. Twenty years sting in the whether defendant had with It is unclear cooperated police Puglia Puglia's believe that arrest, led to whether made that police operation Puglia believed that had set him or whether himself defendant up, independently to be the case. exchange Puglia received in for his is uncertain. The benefit that cooperation

[Puglia]: Oh twenty years?

[Defendant]: Yeah.

[Puglia]: Not twenty stip? f* [Defendant]: the, *k, know, what, No ten Come on man what what the you stip. (indiscernible) gonna daughter old be and would have been nineteen my years got when I out. F* *k that. [Puglia]: God damn. *king got [Defendant]: Ain’t f* f* *k he what he hell, him, he, no way exactly

deserves. week, driving Puglia following as Detective Lorusso was and The defendant, by Mosley’s gave passed she house and defendant days again Puglia up sign.” a A few later she drove “thumbs past “performed digging them this time a house and defendant shoveling” again gave up sign.” a “thumbs motion like he was charges A warrant arrest on was issued for defendant’s February conspiracy to commit assault.5 He was arrested on Miranda,6 rights, of his which he waived. 1998 and informed Eventually, gave videotaped statement in which he defendant murder, Mosley’s any discussed but denied involvement. Defen- shortly jail from dant stated after he was released “friend” friend, jail stopped by whom met in his mother’s house. The he transactions, Mosley prior drug who claimed knew from defendant Mosley’s gone defendant that he house and had robbed told had Mosley. Mosley The said that he and killed friend had choked money jewelry, taking over and then searched house $1,000. doing thought friend that he was defendant a favor attempted charges that defendant was because murder facing. big his made “a mistake” Defendant told friend he “endangered” by killing Mosley, both of them but assured his keep quiet. friend he would 5 The whether warrant was issued in relation to record is clear Puglia allegedly defendant's conversations with about the individual who had set Puglia or relation to murder. Mosley's up (1966). Miranda 384 U.S. S.Ct Arizona, 16 L.Ed.2d 694 was, replied he his “Mend” asked who defendant was When name was that his real “Zboo” and nickname was his Mend’s mistak- that defendant was It was soon discovered Larry Brooks. actually name was the Mend’s confirmed that and defendant en not know where that he did stated Larry Defendant Graves. pager phone number lived, had Graves’s but that he Graves that he told the officers Defendant his mother’s house. number at in an effort to talk to Graves a wire and willing to wear was intercept authoriza- events. A consensual his version of confirm to his was driven night and defendant obtained that tion was pager phone and get Graves’s so that he could mother’s house He the house alone. to enter was allowed numbers. Defendant avail; they house to no out. Police searched not come did backyard. in the body discarded his wire discovered fingerprint 28, 1998, expert compared the an February On fingerprints to Graves’s Mosley’s murder found at the scene right thumb. for a match Graves’s it was confirmed years match, until seven not arrested Graves was Despite the twice; him both were interviewed later, 2005. Police on March Mosley. killing Graves denied During the first interview taped. fingerprint However, that his with the fact when confronted videotaped statement and shown at the murder scene found murder, Mosley’s in implicating him given that defendant had police Mosley and informed that he had killed admitted Graves gone to that he had Graves stated involvement. about defendant’s charges against defen- Mosley drop the Mosley’s house to make Mosley. Graves killing on planning and that he was dant manslaughter exchange eventually pled guilty aggravated twenty-five thirty between of a sentence the recommendation period of eighty-five percent imprisonment, with years of plea, had of his Graves ineligibility. As a condition parole hearing defendant, sentencing was still and his testify against trial. at the time of defendant’s pending had been that defendant police learned On March outstanding Defendant was warrants. arrested Vineland Graves, knowing claiming interviewed and denied that he did not providing taped police remember statement in implicat- to ing Mosley’s in Graves murder.

B. County grand jury A Gloucester charges indicted defendant on murder, accomplice purposeful that he was an to N.J.S.A. 2C:11- 3(a)(1) 2C:2-6, murder, 2C:ll-3(a)(3) felony and and to N.J.S.A. pretrial A hearing January and 2C:2-6. Rule 104 on was held 25, 2007, challenged and in which defendant admissibility (1) (2) videotaped police; of: his statement to proposed testimony Puglia Graves and of their discussions with defendant about (3) Mosley jail; while each was in and tapes the surveillance audio Puglia wearing recorded when was a wire. The motion court (1) that: knowingly intelligently determined defendant and waived rights his videotaped Miranda and that his statement was there (2) admissible; fore Pug defendant’s discussions with Graves and (3) having Mosley admissible; lia about killed were some portions tapes of the surveillance were admissible. trial, testify

At any defendant did not or call witnesses on his strategy, argued behalf. His trial appeal, as he on was that he charges against had asked Graves to to to merely try persuade Mosley drop nothing him; Graves had intended to do but had more, killed self- Mosley defense when had attacked him with a tire iron; of defendant’s Mosley any Puglia suggested statements to otherwise mere “talk,” and were represented get and that Graves credible; had defendant in order to falsely implicated bargain. benefit of a favorable plea jury being accomplice The convicted defendant of an purpose accomplice felony ful murder an sentencing, murder. At merged felony the court defendant’s murder conviction into his purposeful granted conviction for murder and the State’s motion to sentence defendant to an persistent extended term as a offend 2C:44-3(a).7 er under N.J.S.A. The forty- court sentenced him to eighty charges against Defendant had arrests and him. forty-two prior prior He had seventeen court convictions and nine prior municipal prior Superior parole thirty-five year period prison with a years in five ineligibility. (1) that, arguments: three raised appeal, defendant

On incarcerated fact that he was relating all evidence general, Mosley was Mosley when attempted murder charges of the (2) admitted; jury charge should that the improperly was killed manslaughter, a lesser- aggravated accomplice to included have murder; that his motion offense included denied charges improperly felony murder acquittal on the felony guilty of finding him basis for no rational there was because arguments, rejected defendant’s Appellate Division murder. and sentence. affirmed his conviction and

C. focuses appeal in this grant certification limited Because the hearing of the Rule rulings, the details on the evidential Appellate elucidation, court’s and the trial as do the require disputed evidence. analytic approaches to the Division’s allowing argued counsel that hearing, defense At the Rule 104 would testify their conversations Puglia about Graves require him to de- it would unduly prejudice defendant because concerning the murder of charges only the current fend not Mosley attempted murder of charge of Mosley, also the earlier but jail that defendant was the reason that was because applicability also raised the ostensibly Mosley killed. Counsel had require of the 404(b), arguing it exclusion should evidence. follows: argued response as prosecutor

The terms with two in six state parole convictions that resulted prison Court jail three terms, and suspend- fifteen violations, county three terms probation, jail terms. ed county of this briefs in se support also filed handwritten supplemental Defendant pro argument. The other issues with 404-B before the Court were the which discussions, Mr. Puglia begrudgingly jail testified to from the stand, that he had with Mr. Rose in having guy paying having about not show either him up off or him by

whacked. goes Indictment that was I would marked, to motive. prior submit, just just The other 404-B—I don’t even know if it’s 404-B but it’s a—it’s planning. jail There’s Mr. Graves’ There are records at testimony. some point, housing which would be to corroborate situations he proffered, with and—with Mr. Puglia. Graves and Mr. as well as Mr. Rose and Mr. Rose, Puglia brought give background, Mr. in to context and to discuss as far as he and Mr. Rose. How he knew et cetera. him, But also to discuss prior although guess discussions that he had with Mr. Rose, were I the summer they before '96. planning So I would submit under either a motive and intent analysis, analysis [gestae] big I said in case, the res my which I’m not real on—I analysis, guess things that’s Latin. I don’t know. But it talks about all basically these come from the same cloth'. just That can’t take a out because it’s you piece the mosaic of the events part going that took here and that’s what I this is. this whole place mean, case is to be coming saying a mosaic of in and their bits and as to people they’re what pieces hearing know about And this. what this this week they was a was, couple of the mosaic. pieces And to aren’t relevant or aren’t say they under I think pertinent Cofield[9l as I stated in Brief incorrect, for the reasons I stated in my Brief. are my They relevant. are do They issues such as motive. pertinent. They explain Whether jury it’s believed or not is a issue. planning. do motives like intent. do They explain They issues of explain They do issues of how these witnesses know each explain other. And under I Cofield, prongs think it satisfies all the as was Cofield, set forth in previously Brief, my going which I’m not to sit here and reread that to the Court. sought But 404^-B, for those were the items that I to admit and those were the sought reasons that were to be admitted. And I think they that they’re properly the to Court and presented relevant and they’re properly admissible. properly placed record, The trial court an oral decision on reasoning the proposed testimony that the concerning killing the

Graves, of Mr. and the Mosley reason does therefore, charged relate to the commission of the crime in directly the Indictment. [gestae], Gangloff And I don’t find 404 to that. That’s—res as Mr. applies said, thought is a term that is used. I know I when was in law I school, we were told (1992). State v. 605 A.2d 230 Cofield, regard a find Tgestae], with to evidence. You should shouldn’t use that that res you general language. kind of rule that that was real applies being I read as about, it, in talks back the law and basically But it seems ease of the that that it needs to be part itself. woven into of the crime It’s so part I find that with And really the 404-B doesn’t apply. evidence. That analysis jail. regarding in regard what the Mr. Graves’ happened to testimony regard slightly to Mr. different with question arises, A different question alleges jail Puglia’s the Mr. Graves of the in Defendant. by discussions testimony Puglia in There were conversations Mr. solicited. merely he was solicited. wasn’t jail regarding this. the regard to would come into with play find that a 404-B of analysis And I do type Although is one not of which crime, another frankly that in a sense. it is evidence admissible as the other crime must be factors. Is evidence of of the Cofield to a material issue. relevant to and intent evidence show motive crime, is evidence of this There really to this under 404-B that relate clearly forth. So are items and so there plan although it isn’t it isn’t 404-B of evidence because a traditional evidence, type of this crime. different It’s evidence evidence of a crime. find it’s but I don’t I said, analysis So the—as 404-B analysis—type applies the evidence would be whether material event. question 404-B really any outweighed the other be substantially by its value would under probative And I find that it not ... factors. would trial, copy of his to the admission of stipulated At defendant testi- Puglia and Graves prior attempted murder. indictment ruling from the in accordance with the court’s fied object testimony not hearing. Defense counsel did Nonetheless, repeatedly court Puglia or trial either Graves. jury limiting its use of the with instructions about provided the incar- was jury first learned defendant evidence. When Mosley charges attempted when of the murder cerated killed, jury, part, Mosley court instructed the trial a tendency use this to decide that Defendant has not you may just is, that he That not decide you may commit crimes or is a bad person. against charges pending was incarcerated him, Defendant ... or because the had guilty he crime. that must be Jail, present in the County decide the have the evidence only specific Admitted—I admitted help you knowledge Mr. or his intent to have his motive of what happened and/or question have him killed. his of a killed formulation plan Mosley and/or not find the Defendant consider it other may You for any purpose may other guilty evidence that he has committed because the has offered State simply wrongs or acts. crimes, charge again That given following Puglia’s testimony was and as part jury charge. of provided the final The trial court also a limiting testified, informing jurors instruction after Graves the they that not to use this evidence decide that the Defendant has a may to commit tendency just crimes or that he That is bad not decide that because person. is, you may he jail, guilty

was in he of the must be crime. present I have admitted the evidence to with the only location of the provide you understanding background to discussions, assist of the context and you your of them. You not consider it for other not find the may any may purpose guilty Defendant now because the State simply has offered evidence that he was incarcerated in the Jail at time. County any repeated That during jury charge. instruction also was the final appeal Appellate Court, In his to the and to Division this arguments defendant has characterized his at the Rule 104 hear- ing constituting objections” “generalized to the introduction of any during evidence trial that the fact related to that he was charging incarcerated on an indictment with attempted him the Mosley Mosley murder of Appellate when was killed. Divi- “[cjounsel rejected sion proposition, stating obligated objection any an when offending announce material was offered during object the trial.” Because defendant did either Puglia’s testimony trial, stipulated or Graves’s indictment, copy panel introduction of a his the concluded that plain the applied. error standard 2:10-2. In rejecting See R. argument defendant’s about the inadmissibility, evidence’s the panel object deprived reasoned that defendant’s failure to the trial “opportunity court of the to determine: whether vehicle used convey proper; those facts was whether evidence should by 408; precluded application whether, have been or N.J.R.E. despite admissibility, prejudicial its impact evidence prior appropriate jury indictment could have been lessened instruction.” pertinent part, panel

In explained [djefendant good energy against arguing has deal of spent application 404(b) N.J.R.E. res the so-called doctrine as relate to they may But, indictment. as we have the evidence prior observed, noticed specifically

157 to either N.J.R.E. without reference was admitted in the brief appeal properly 404(b) gestae. or res offered to Pugli[a] indictment was nor the Neither the testimony stipulated prior judge engaged in held bad as the acts, properly had show that defendant prior hearing. evidence, 104 This the of the N.J.R.E. oral at conclusion his decision was offered to indictment, only the the existence of prior insofar it revealed charged was a had been and that Mosley defendant what was relevant—that prove suggested against defendant’s motive facts that him, two material witness participating murder. in Mosley’s gestae judge although on doctrine to permit relied the res the And, expressly rationale to have not find we do indictment, questionable the prior bearing we discern from the is, on That the issues presented appeal. any upon relating judge’s ruling the indictment as he to prior trial viewed evidence ruling tending N.J.R.E. such a is motive; fully supported by to show defendant’s which or the res doctrine, may may not reliance 401 and does require upon among lurk the interstices of our rules evidence. not Court, reasserting this petitioned for certification to Defendant Division; however, Appellate same raised before issues “limited the issue of whether grant certification was our previously and incarcerated was indicted evidence that defendant charges attempted to murder the victim admissible on that he 404(b), gestae, or pursuant res trial to N.J.R.E. at defendant’s Rose, supra, at 999 A.2d legal some other doctrine.” admissibility of the Accordingly, we turn to address the 465. disputed evidence.

II. A. admissibility of ruling evidence is A trial court’s for See Brenman v. appeal abuse of discretion. reviewed on (2007). Demello, 18, 31, However, if the N.J. 921 A.2d objection not to admission known party appealing did make its error, court, plain only reviewing will trial court review unjust “clearly capable producing an reversing if the error result.” R. 2:10-2. admissibility rulings reviewing the sensitive specifically

When 404(b), process pursuant weighing demanded Rule made acts, or bad we have deals with evidence of other crimes which “[o]nly further said that where judgment there is a clear error of respect should the trial court’s conclusion with to that balancing Barden, 375, 391, test be disturbed.” State v. N.J. 949 A.2d (2008) (citation omitted). quotation and internal marks That deferential approach does not fit in cases where trial court did 404(b) apply trial; properly the evidence in those circumstances, to whether assess admission the evidence was appropriate, appellate may engage court in its “plenary own Ibid, (citation admissibility. omitted); review” to determine its 519, 534, (2007) Lykes, see State v. 192 N.J. 2d 1274 (citing 933 A. Reddish, 553, 609, (2004), State v. N.J. A.2d 181 859 1173 for proposition appellate analysis that review is de when novo Cofield required is performed). but not

Here, to respect indictment, with the admission of defendant’s objection. defendant no interposed stipulated He to its admission object at trial. Puglia’s Nor he to testimony did and Graves’s at trial. Appellate Division did not accept “general defendant’s objection” said, argument ized about that evidence. That under the reviewing acts, standard for evidence of other crimes or appellate body permitted perform plenary is to own its of review the evidence to determine whether properly the evidence was Barden, supra, Here, admitted. 195 N.J. at 949 A.2d 820. a 404(b) straightforward application of Rule leads to the conclusion no defendant suffered error due to the admission of the (and disputed his evidence about former indictment incarceration trial) pending charges that he attempted had the of murder the victim in present his trial.

B. 404(b) provides Rule wrongs, evidence of other or acts is not crimes, admissible the prove disposition of a in that such order to show acted in person therewith. Such person conformity evidence for be admitted other such of may purposes, proof motive, opportunity, knowledge, intent, or absence mistake or preparation, identity accident plan,

when such matters are to a material in relevant issue dispute. 404(b).] [N.J.R.E. is that danger admitting other-crime evidence underlying “The person in a bad the because he is jury may convict defendant the 328, 336, Cofield, 605 A.2d general.” State omitted). Thus, prose “the (citation quotation marks internal criminal acts the of other may not introduce evidence cution purpose other introduced for some the evidence is accused unless of criminal person is a that because the defendant suggest than character, probable that he committed crime it is more 335-36, (quoting A.2d 230 on trial.” Id. which he is ed.1992) ed., 4th (Strong § at 798 Evidence McCormick on omitted)). (footnotes 404(b) between “seeks to strike balance evidence that is inherent other-crimes

prejudice to a defendant may highly relevant to recognition the evidence be Barden, supra, guilt charged.” crime prove defendant’s Thus, uncharged A 820. 195 N.J. at .2d solely prove if be offered misconduct would inadmissible disposition, if that evidence is but misconduct defendant’s criminal listed Rule non-propensity purpose such as those material to a 404(b), probative out may if its value it be admissible weighed prejudice. risk of See ibid. by application Jersey on proper case in

The seminal New 404(b) uncharged is State v. evidence misconduct Rule following Cofield, supra, the Court articulated In Cofield.10 uncharged misconduct is if four-part to determine evidence test trial: admissible at to a material crime the other must be admissible as relevant 1. The evidence of

issue; charged; offense in kind close in time to the 2. It similar and reasonably must be 404(b)’s 10 New Jersey of Rule addressed application predecessor, Cofield Rules two 127 N.J. at 330, 230. The Evidence Rule 55. Cofield, supra, 605 A.2d language, still similar and test articulated contain substantially Cofield e.g., 404(b). See, of evidence frames for the under admissibility the analysis (2010); Barden, 195 N.J. 232, 163 P.S., supra, State v. 202 N.J. 254-55, 997 A.2d A.2d 820. 388-89, at 949 160 convincing;

3. The evidence of the other crime must be clear and 4. The outweighed value of the probative evidence must not be its by apparent prejudice. (quoting [127 Balancing N.J. at 605 A.2d 230 338, Abraham P. Ordover, 101(b), 608(b), 609(a), Guilt And Presumptions Innocence: Buies And 38 Of (1989) (footnote omitted)).] L.J. Emory 135, 160 satisfy To prong first of the relevancy- test—the Cofield prong—the tendency evidence must have “a prove reason to or disprove any consequence fact of to the determination of the evidence”). action.” See N.J.R.E. 401 (defining “relevant “The requisite standard for the generous: connection is if the evidence makes a probable desired inference more than it would be if the admitted, evidence were not required logical then the connection Williams, has been satisfied.” v. 114,123, State 190 N.J. 919 A.2d (2007). The evidence must also bear a material issue in dispute, motive, intent, such as or an charged element of the offense, and so “the Court should consider whether the matter was projected by arguable trial, the defense as before raised trial, defense at or was one that the defense refused to concede.” P.S., 232, 256, (2010). State 997 A.2d 163 The second prong of the test is understood as “limited to cases that Cofield replicate Williams, the circumstances in supra, 190 N.J. Cofield.’’ at Temporality A .2d 90. similarity of conduct is not always applicable, required P.S., and thus not in all cases. See supra, 202 N.J. at 255 n. Moving A.2d 163. on to the third prong, prosecution must establish that uncharged the act of misconduct which it seeks to introduce into actually happened by “clear convincing” Cofield, supra, evidence. N.J. at 605A.2d 230. prong

The fourth test typically consid Cofield Barden, ered the most difficult to supra, overcome. N.J. 389, 949 A.2d 820. damaging “Because of the nature of such evidence, the trial engage court must pragmatic in a careful and evaluation of the evidence to probative determine whether the worth of the outweighed by evidence is potential its for undue Ibid, (citation prejudice.” omitted). quotation and internal marks 403, exacting provides that than Rule which is more That standard probative is its value sub unless relevant evidence admissible Reddish, prejudice. outweighed by risk of undue stantially the And, 608, other “[i]f at 1173. less supra, N.J. 859 A.2d issue, to establish the same may presented prejudicial evidence be tip in of exclusion.” weighing process will favor balance in the (citation omitted); Barden, at 949 A.2d supra, N.J. Additionally, P.S., 163. in supra, 202 at 997 A.2d see N.J. in of prejudice inherent the admission order to minimize “the evidence, require courts the trial court to sanitize our other-crimes Barden, supra, 195 N.J. appropriate.” when the evidence (citation omitted). limiting Finally, must instructions 949A.2d 820 may, jury purposes of it to inform the which provided be not, may it the evidence of defendant’s and for which consider misconduct, presented first when the evidence is uncharged both charge. jury Ibid. A suitable again part of the final and prohib precisely permitted and “explainfs] limiting instruction evidence, with sufficient reference purposes ited jury comprehend to to enable the factual context the case required fine it is to adhere.” appreciate the distinction which Ibid, (citation omitted). quotation marks and internal review principles guide, as our we turn to

With those disputed trial. evidence defendant’s

C. objections he at the Defendant raised reiterates any during hearing challenge the introduction relating his incarceration on indictment the trial Mosley charged attempted Mosley murder of when him with the (1) Puglia’s pieces His is on three evidence: killed. focus having Mosley him testimony spoke about defendant with (2) testimony jail; killed the two men were Graves’s while killing provided him instructions defendant solicited him they together; Mosley defendant’s while were incarcerated Mosley. trial attempted indictment for the murder court 404(b) did not applicable consider Rule Instead, to that evidence. the court admitted the through stipulation, indictment allowed testimony Graves’s about his solicitation to be part admitted as charged crime, the res Puglia’s and declared testimo ny defendant, about his conversation with in which defendant’s expressed plans his for Mosley, to be evidence of this crime and evidence, not “other” crime exempt therefore from Rule 404(b)’s requirements Thus, for admission. we can and will conduct our own review of admissibility the evidence’s under Rule 404(b).11 Barden, See supra, 195 N.J. at 949 A.2d 820 (citation omitted). analysis, Under that begins—as one always case, the 404(b)— whether under Rules 401 and 403 or under Rule by addressing the relevance of the evidence. prong initial requires an examination of the “other”

Cofield’s crime or act evidence for relevance. Here the fact that defendant was indicted for the attempted Mosley murder of was relevant to trial, material dispute issues in namely at defendant’s motive for having killed, Mosley his intent that Mosley, Graves kill and the plan that he formulated with Graves on how to kill Mosley. The fact that jail defendant was in because he attempted had to kill Mosley was not introduced into evidence the State to show that defendant capable was a criminal killing someone and thus should be Rather, convicted on that basis. the State relied on the fact that jail defendant was in for attempted the murder of Mosley, killed, Mosley when highlight to fact the that defen- motive, dant requisite intent, had a plan Mosley and a to have proper killed—all non-propensity 404(b). purposes under Rule Although the trial court explicitly did not consider all of the challenged 404(b), evidence under Rule recognize court did 11At the outset we involving note that case this is unlike other cases 404(b). charge In cases, other can prosecutor the defendant with the acts of uncharged misconduct that the wishes to have admitted prosecutor into evidence strategic but to, chooses not Here, reasons. perhaps because of Mosley’s charging murder, the indictment defendant with murder had to be attempted dismissed because was the witness Mosley in that case. key in issue was relevant that and state the record Indeed, part of plan.” intent “motive and defendant’s he strategy, argued trial that he defendant’s against charges to drop asked Graves to merely try persuade Mosley had nothing had killed in self- to do but more, Mosley that Graves had intended him; defendant’s iron; attacked him a tire any when had with defense Mosley suggested Puglia mere and were “talk,” otherwise represented statements get had defendant order to falsely Graves credible; implicated bargain. benefit of favorable plea actually Mosley kill and Thus, intent that Graves defendant’s a drop charges” the was just “try [him] to persuade not to in dispute Also was whether defendant disputed material issue. Mosley, kill Graves how to which plan formulated a with about had “Graves had contention that intended contradicted defendant’s drop charges], the but nothing persuade Mosley to [than do more Likewise, although Mosley in had self-defense.” [then] killed dispute, in motive expressly place the issue his did not defendant material, so, string the vitally it was the that tied was and because knowing that was together. entire Without defendant State’s case Mosley he to murder at the prison charges attempted in on that killed, been Mosley jury the would have left without time was why piece Mosley wanted killed. a crucial of evidence: defendant Thus, in plainly was prong the first test satisfied Cofield this case. test, addressing similarity prong The second of the Cofield evidence, 404(b), is in Rule is temporality of the not found and P.S., universally N.J. at 997 required. supra, See 202 255 n. 90). Williams, (citing supra, It 190N.J. at A.2d

A.2d Turning requirement, inapplicable prong to the next here. analysis of un requires three of the Cofield proven convincing charged acts be clear and of misconduct Hernandez, 106, 119-21, 127, See evidence. State v. (2001). Although hearing here no to hold the A.2d there was proof, surrounding circumstances prosecutor that burden third adequately support prong that the was satisfied. Cofield charge attempted had murder Defendant been indicted matter jail awaiting trial that was start in a scheduled Mosley of weeks when justice system was killed. The criminal may infallible, not be but nevertheless provide those facts suffi- support finding cient for convincing that the clear and standard of proof regard was met in pending charges against defendant previously attempting Indeed, Mosley. to kill key because the respect murdered, witness in charges—Mosley—was of those it perverse be Mosley’s would to allow defendant to benefit from by foiling murder the State’s use of the evidence based on this prong analysis. of the Cofield

Finally, the prong requires fourth balancing Cofield probative value of compared the evidence as prejudicial to its effect, necessarily implicates an examination into whether less inflammatory equally sources of evidence that probative are are Barden, supra, available. 195 N.J. at 949 A.2d 820. Evi- dence defendant was attempted incarcerated for the murder Mosley prejudicial piece was the most him. against of evidence But, prejudicial way it was highly that all probative evi- prejudicial: dence is it prove because tends to a material issue in dispute. question The determinative is whether the evidence was unfairly prejudicial, significant that is whether it created a likeli- jury hood that the would convict defendant on the basis of the uncharged misconduct because he person, was bad and not on the basis of against the actual evidence adduced him. con- We clude that overly the evidence admitted here prejudicial. was not carefully It presented suggest was so as not jury to that defendant propensity had a to commit bad acts and should be Rather, convicted that basis. it was proper admitted for the purpose explaining why of particular defendant committed this crime, something that possible would not have been without admitting awaiting evidence that charges defendant was trial on that he attempted Mosley. had to murder

Thus, despite potential prejudice admitting evidence that charges defendant was incarcerated on attempted that he kill to Mosley, it probative piece was also the most in evidence Forcing prosecution ignore ease. to key piece such a than questions more jury with left have would evidence have been left jurors would knowledge, the that answers. Without at the center understanding the evidence huge gap in with a Mosley killed wanted case; known that defendant they have would very case. At a why was the no have had idea would but A wide motive evidence. was classic the evidence level basic even where permitted, and generally evidence range of motive that it recognition allowed has been its admission prejudicial, Long, 173 State v. high probative value.” “extremely may have (2002); Rogers, see State 138,164-65, A.2d 221 N.J. wide (discussing 218, 228, usefulness 116 A.2d 37 evidence). finely, three Parsed more admissibility motive indictment, testimony, Puglia’s pieces of evidence—the motive, as well testimony—properly went defendant’s Graves’s value of the probative plan, and the intent as to defendant’s prejudice. outweighed its was not conveying relevant prejudicial means for whether less As available, argue questiona- it was one could information were to be admitted needed pieces of evidence whether all three ble In other. ways cumulative to each in some they were when it respect because testimony in this Puglia’s is weak particular, Mosley kill and not solicitations general discussions concerned murder, Mosley’s plan to effectuate of a or formulation concrete with Graves. concerning discussions defendant’s the case that went defen- However, independent evidence provide it did jail Mosley he was while or intent to murder plan dant’s Mosley charges where murder attempted on the awaiting trial circumstances, him. In these against the chief witness would be testimony have been Puglia’s should not convinced we are basis, extensive and in view of the particularly on this excluded provided. limiting instructions repetitive evidence in analyze all of the court did not Although the trial jury instruc- 404(b), provide appropriate it did issue under as if all the by defendant prejudice suffered to limit the tions 404(b)’s Limit- through filter. Rule been scrutinized evidence had ing given jury instructions were when the first learned that defendant charges was incarcerated on attempted that he had to Mosley, Puglia’s murder testimony, after after testimony, Graves’s again during jury charge. and the final One instruction informed jury: [Y]ou not use this evidence to may decide that the Defendant has a to tendency just commit crimes or that he is a bad That is, not decide that person. you may charges pending against because the Defendant ... had or was incarcerated him, guilty in the that he must County Jail, be of the crime. present Admitted—I have admitted the evidence to only decide the help you specific knowledge of his of what or question his motive intent happened to have Mr. and/or killed his formulation of a Mosley to have him killed. plan and/or You not consider it for other and find may any not the Defendant purpose may guilty because the State has offered evidence that he has simply committed other wrongs or crimes, acts. limiting That properly jury instruction informed the about the distinction permitted prohibited between the uses of the evidence in specific sufficient reference to the facts of this case. jury The trial court rely also instructed the that it could not on the fact that Mosley defendant was incarcerated at the time was killed tendency as evidence that he “has a to commit crimes or that he is is, person. you may just bad That not decide that because he jail, was in guilty present he must be piece crime.” That evidence, the trial court jury, only cautioned the was admitted with the location of the provide you discussions, assist under- you your standing background of the context and of them. You not consider it for may any guilty other find the Defendant now purpose may because the State simply

has offered evidence that he was incarcerated in the Jail at time. County any And, to the argued extent that it could be the fact that jail sanitized, defendant was in at the time should have been necessary fact explain why Mosley defendant could not kill himself highlighted and solicited Graves to do it and also defen- motivation, overarching get jail. dant’s which was to out of sum, independent analysis In our leads to the conclusion that the evidence in issue would have been admissible under Rule 404(b). 404(b) Although proper thorough analysis respect should have been conducted of all of the evidence related to charges defendant’s indictment and incarceration on that defendant suffered Mosley, we hold attempted murder error, error, of the admission of as a result no let alone reversible modified, judg- affirm as respect, In that we the evidence. Appellate ment of the Division.

III. counsel, court, trial and the positions taken The various Division, analyze disputed misconduct as to how to Appellate uncertainty evidence, confusion and that there exists demonstrate gestae, law doctrine of res and its the use of the common about Jersey’s jurispru- feature of New evidence very status as a viable issues led the into this case’s evidential dence. Its insinuation stray preferred examination for the admission analysis to from the 404(b). by Rule required One and use of misconduct condoning continued reliance on a ask what value there is in must continued use is asserted to be common law doctrine whose confusing at worst. redundant at best and controversial, say gestae has been to The doctrine of res least, just long have of late. Critics the doctrine noted rulings explained on the basis of res tend to that evidential conclusory, leading imprecise and discor- be result-oriented and An admissibility determinations. incantation evidence is dant lack, fundamentally, analytic rigor, gestae” “res is said uniformity rulings were intended to precision, and that evidential give In Rules Evidence. order to those have under the codified consideration, arguments proper it is useful to review some back- at various in the ground, much of which has been covered times past gestae’s questioned.12 use was when res continued gestae's Long, for re-examination of res use in State v. Justice Stein called (2002) (Stein, concurring J., 138, 166-71, 801 A.2d 221 in part, dissenting part). since, have From time to time there been opinions separate abandoning e.g., urging See, the doctrine. State v. the Court to consider Kemp, (2008) (Albin, concurring). J., 136, 157-63, N.J. 948 A.2d 636

IV. done,” “things gestae translates from Latin as Res springs conceptualization its both as an from that translation hearsay a shorthand independent exception and as reference singular intrinsic evidence of a transaction or event. See Black’s ed.2009). (9th Dictionary The term traced to Law has been 1637, commonly until 6 but did not become used the 1800s. See (Chadbourn 1, 1767, Wigmore § at 254 & n. 255 on Evidence rev.1976).13 It since evolved into a term of art that embodies has concepts. two aforementioned distinct

A. hearsay concept pedigree historical a The first relates its as century theory exception. hearsay In the nineteenth “the exceptions hearsay developed, not well and the various to the rule context, gestae clearly phrase not In this res were defined. escape hearsay a from served as convenient vehicle rule____”2 (Broun 268, ed., § on Evidence at 245 6th McCormick ed.2006). rules, At no evidence that time there were codified important development in of evi gestae played res role and, particular, law in to the demarcation of the modern dence hearsay B K v. exceptions to the rule. See & Rentals & Sales Co. Co., 147, 640, 644 Tobacco 324 Md. 596 A.2d Universal Leaf (“[T]he usage gestae] term came into at a time when [res developed excep theory hearsay was not well and the various defined.”). clearly tions

Thus, gestae exception was conceived of as an res hearsay that for the admission of statements that rule allowed principal that the act in issue occurred. were made at the time Evidence, supra, § at 245-46. time that McCormick on Over gestae have used res as an doctrine since New courts Jersey evidentiary (Sup.Ct.1819) (admitting Ogden Gibbons, 612, 631-32 1819. See 5 N.J.L. charged gestae of because evidence was evidence as res trespass hearsay motive); (Sup.Ct.1819) Vancleve, 5 N.J.L. to establish Den v. necessary hearsay). gestae against (explaining res to rule exception introduction of gestae expanded to allow for the conception of res accompanied any act relevant to the case issue. statements that hearsay exception gestae as a Id. at 246. The theories behind res that a should be allowed “to twofold. The first was witness were way by reciting happened all that story her in a natural tell his or incident, including those details at the time of the narrated spontaneous The second was that give it life and color.” Ibid. statements, nature, degree by very exhibit an enhanced their should therefore be admissible. Ibid. trustworthiness and gestae Jersey in New comprehensive first discussion of res State, In Hunter v. purposes those to the doctrine. reflects (E. A.1878), Appeals of Errors and & the Court N.J.L. 534-45 hearsay expressed the admission of held that gestae, present impression sense was admissible as res further explaining as follows: which

The res therefore be defined as those circumstances are the may undesigned litigated incidents of a which are admissible when act, particular the act illustrative of such act. These incidents be from lapse may separated time more or less consist of one any appreciable. They may speeches things or left concerned, whether participant bystander; they may comprise things distinguishing as well as done. Their sole feature is that undone they litigated act; sense, be the incidents of the this necessary, should necessary act, are of the immediate or emanations of such and are for, they part preparations the calculated of the actors. produced by policy omitted).] (quotation [Id. at marks 538-39 Jersey validating courts the admission of evidence under the New gestae generally whether the evidence doctrine res looked to closely indispens- was so related to the matter at hand that it was adjudication. often- able to fair As indicated this Court’s rationale, justifying principle for quoted truth was the the admis- gestae sion of res evidence: gestae justifying [T]he of the as res has as its admissibility proofs principle seam, like the Master’s is of one without woven from the truth, robe, piece, lop

throughout, that each fact has its attributes and its kindred facts inseparable affecting its and that of a scene with its character, materially reproduction incidents, each created and without not too naturally artificiality multiple distant in will and texture tend to disclose the truth. time, point by very quality (1949).] [Robertson v. Hackensack Trust 1 N.J. 63 A.2d 515 Co., 304, 312, Relying animating principle as an for on the search for truth hearsay expansion, gestae res embraced both statements and acts, separate from both bad acts that are which included other components are charged and bad acts that crime use, Focusing hearsay on the the doctrine charged crime.14 hearsay general prohibition of evi exception an became dence, connected to rendering out-of-court statements admissible necessary in order to understand the they act were because See, guarantee of trustworthiness. an inherent events and had Hunter, 515; Robertson, supra, supra, 1 at 63 A.2d e.g., N.J. to be gestae, To be res the.statements had at 538-39. N.J.L. part of the act. See an act” as to constitute “so connected with Hunter, Further, the statements had supra, 40 N.J.L. at 537. litigated “inherently part particular of ‘a [a] to” and be “incidental ” 338, 358, Branch, 865 A.2d 673 v. 182 N.J. act.’ State 515). Robertson, 63 A.2d “The (quoting supra, N.J. Hunter, up make one transaction.” and the act must declaration Hunter Court reasoned that supra, 40 N.J.L. at 537. The justifying gestae] are thus [res when such declarations [t]he that, coupled theory if stand it; alone, receive confirmation from but act, they with a they provable altogether for their credence on the veracity without such they support, depend and inadmissible. and thus are utterer, conditioned, they pure hearsay, [7bid] strictly contempora-

Despite initially requiring that a statement be action, Hayes Jersey City, v. Hoboken & with the see neous (E. 641-42, Co., 64 A 119 & Ry. N.J.L. Paterson St. A.1906), permit requirement was loosened to courts evalu- circumstances.beyond temporal proximity indicat- ate whether Simmons, v. veracity of the statement. See State ed the (1968). 538, 542,247 A.2d 313 expressed admitted that gestae,

As res statements were mind, condition, bodily present present declarant’s state State v. evidence. gestae murder would be admissible 632, (permitting Res 47 A. evidence of skid marks Weiner, See, 814 photographs e.g., (E. A.1900) (holding also has been cited as 101 N.J.L. & State 46, decedent and Deegan, as res at accident 49, gestae). 127 A. 582 133 N.J.L. family scene); coat's explanation 263, 44 A.2d 104 (Sup.Ct.1925) to be admitted as presence State v. Hill, in room at time of admitting (admitting 65 N.J.L. (E. A.1945) res & relevant gestae); as res 626,

171 impression, as well as statements characterized as excited sense See, Co., e.g., Finishing Rainess v. N.J.L. utterances. Grant 133 (E. A.1946) 611, 611, (admitting 45 & statement of intent A.2d 678 (E. Doro, 94, gestae); v. A. 611 as res State 103 N.J.L. 134 & A.1926) gestae); (admitting excited utterance as res Schlemmer v. State, 23, 29, (Sup.Ct.1888) (admitting A. 51 N.J.L. 836 state gestae); expressing ment declarant’s state of mind as res Donnel (E. A.1857) State, ly (admitting v. 26 N.J.L. & as res gestae regarding injury immediately statement cause of made injury). gestae hearsay exception after Those uses of res as are recognized predecessors now hearsay excep as the to the codified Schumann, tions the Rules Evidence. See v. State N.J. 470, 479, (1988) (“[T]he gestae’ exception may 545 A.2d 168 ‘res be principles viewed as shorthand reference to the in ... contained evidence^]”). exceptions excluding hearsay [the] to the Rule Hearsay generic statements once admitted under the term res gestae recognized are being through specific, addressed codi exceptions hearsay rule, namely: present fied sense impressions, 803(c)(1); utterances, see N.J.R.E. excited see 803(c)(2); mental, N.J.R.E. then-existing and statements of emo tional, conditions, 803(c)(3). physical or see N.J.R.E. See Evidence, 245-46; supra, § McCormick on see also Branch, 357-58, supra, (“Long 182 N.J. at 865 A.2d 673 before the a separate identity excited utterance took on under our modem evidence, grouped rales of along hearsay it was with several rule (verbal act, exceptions present impression, sense and statement of mental, condition) emotional, existing then physical or under the gestae.”). umbrella of res

B. concept historically The second embodied the term res independent is its evidentiary use as doctrine to admit law, evidence of other acts. Under the common evidence of a uncharged defendant’s criminal was not conduct admissible to Hendrick, 41, 45-46, show criminal propensity. State N.J.L. 172 However, exception gestae res was (Sup.Ct.1903). 247

56 A. offered for of other bad acts used to admit that was 46, this of 56 A. 247. Evidence purpose. Id. at non-propensity categories: into two gestae can be divided as res nature admissible (2) charged crime and intrinsic acts that are bad crimes. separate of used to admit evidence Jersey, gestae has been

In New res transaction part[ of the “eonstitute[s] ] if other act other acts might facts not knowledge which the main of ... without the 66, 73, N.J.Super. Riley Weigand, 18 v. properly be understood.” Second, gestae has been invoked res (App.Div.1952). A.2d 698 86 if separate crimes the evidence to admit evidence 413-14, Sinnott, 24 N.J. State v. propensity. to show offered Overton, 287, 291, (1957); see, 85 N.J.L. e.g., State A.2d 298 132 A.1913) (E. evidence under (admitting separate crime A. 689 & motive). promulgation Prior to the to show gestae res Evidence, the admission of evidence gestae allowed res Rules of See, Sinnott, supra, e.g., intent. prove motive or separate acts to Overton, 298; at 413-14,132 supra, 85 N.J.L. at A.2d codified, incorporated Evidence the Rules When 88 A. 689. specifically gestae in the rule applications of res common law those 404(b) admits evidence Rule addressing bad acts evidence. purposes. The exam non-propensity or acts other crimes bad 404(b) are drawn listed non-propensity purposes ples of incorporate holdings of jurisprudence, and gestae res from 413-14,132 Sinnott, A.2d supra, 24 N.J. as cases such 291, A. Overton, 689. supra, 85 N.J.L. at

C. gestae as have criticized res commentators A host of courts and Henry Wigmore’s evidence unhelpful.15 John being outdated and representative statement: provides treatise (Poritz, concurring) CJ., Long, 166, 801 A.2d 173 N.J. at See supra, "standing as a gestae, discredited scholars (noting alone, has been by res evidence"). inadmissible basis to admit otherwise long res has been not but even phrase only entirely useless, positively harmful. It is useless, because rule evidence to which it has ever been every exists as of some other well-established and can be applied part principle explained ambiguity in the terms of that It is because harmful, its it invites the principle. confusion of one rule with another and thus creates as to the limitations uncertainty ought of both. It therefore to be a vicious element our wholly repudiated legal phraseology. No rule of evidence can be created or the mere applied by muttering of a shibboleth. Wig'more § [6 255.] on Evidence, 1767, at supra, And, by such criticism is phenomenon: no means a recent reasoning, The marvelous aof Latin to serve as a substitute for capacity phrase thought accompanying and the confusion of the use of inaccurate inevitably terminology, dealing are nowhere better illustrated than in the decisions with the gestae.” of evidence as “res It is that admissibility this troublesome probable owes its existence and expression our law of evidence to an persistence judges inclination of to avoid the toilsome exertion lawyers of exact analysis thinking. and precise Morgan, Suggested [Edmund M. A Utterances Admissible as Res Classification of (1922).] Gestae, 31 Yale L.J. 229 229, gestae noted, As one of the earliest critics of “judges, res text- writers, sadly and students have found themselves embarrassed growing vagueness expression.” and intolerable 6 Evidence, 1767, Wigmore supra, § on (quoting at 255 B. James Thayer, Bedingfield’s Case—Declarations a Part the Res of Gestae, 1, (1881)). 15 Am. L.Rev. 5-10 specific hearsay exceptions

Because previously would have gestae codified, fallen under the many umbrella of res have been gestae courts have concluded that longer res no serves a useful purpose free-standing See, as a exception hearsay rule. State, 674, e.g., Horton v. (Wyo.1988) (stating 764 P.2d 677 gestae hearsay exceptions because res had been codified in W.R.E. 803, gestae eliminated); res Keating, should be Miller v. 754 F.2d (3d Cir.1985) 507, (“Before n. 1 adoption 509 of the Federal Rules ’ Evidence, of applied gestae courts ‘res with much confusion to hearsay sorts.”); of statements various see also note 17. infra That strongly encouraged by view has been accepted mavens of “[tjhere development: evidence law enough are words to describe the rules of evidence. if accepted Even there were no name for doctrine, any one or preferable another name would be to an 174 encouraging thinking phrase gestae] so to looseness

empty [res Evidence, uncertainty Wigmore supra, 6 on decision.” Evidence, 255; § supra, § at see also 2 McCormick (“The gestae] played ... a role phrase [res at 246 ancient expansion law and the of the admission evolution evidence now, hearsay largely contemporaneously statements. [But made jettisoned modern appears to be a relic to be from historical it] hearsay analysis----”). use, gestae unnecessary respect hearsay appears res its

With hearsay independent for the evidence. as an doctrine admission suggested Certainly prior our law has that the codified rules case permitted of common law res were drafted reflect the uses Branch, 357-62, See, supra, 865 gestae e.g., evidence. 182 N.J. hearsay gestae (discussing A evolution of res into codified .2d Schumann, A.2d exceptions); supra, N.J. at rules); into Cestero v. (noting incorporation of res Ferrara, 497, 503, (stating “[o]ur 273 A.2d codify of Evidence undertaken this broader res Rules have principle”). gestae

Moreover, gestae longer a viable the that res is no notion comments of independent hearsay exception is consistent with the charged of Supreme Court with modification the the Committee holdings regarding Court’s Evidence in 1991 and the Rules of hearsay and its comprehensiveness Rules Evidence on of hearsay exceptions provide compre- a exceptions. Simply put, the permissible for the introduction of hensive and cohesive scheme hearsay adopting in our codified Rules our courts. When of Evidence, adopt Jersey a residual specifically New declined practice exception, adopted governing in the hearsay as was rules (previously Fed. in federal courts. See Fed.R.Evid. 807 803(24));16 Biunno, Zegas, Current N.J. Weissbard & R.Evid. Evidence, Comment on Supreme 1991 Court Committee Rules of 16 807 residual for statements with Fed.R.Evid. hearsay provides exception guarantees circumstantial of trustworthiness.” “equivalent

175 803(c)(24) (2011). Adopted] N.J.R.E. In [Not affirmance of that rejection any hearsay exception, hearsay residual statements exceptions not conform specifically do to the enumerated Brown, Rules Evidence are admissible. See State v. 170 138,152-53, (2001). N.J. 784A.2d 1244 appears logical gestae There to be no reason to treat res hearsay differently except misguided evidence out of some fear Yet, “something” might be excluded. even in the debate over hearsay Long, supra, entirely statements in the evidence was hearsay exceptions permitted tethered its admission. 173 153-54, sum, N.J. at 221. In 801 A.2d continued use of the gestae nothing moniker of res interpretative adds more than an descriptor or, clouding analysis worse, that risks an evidence-rule avoiding required rigor its through invocation of a result-infused govern term. The exceptions hearsay evidence rules that to the comprise fully integrated rule given doctrine and should be comprehensive they fulsome and effect that were intended to have. Moreover, our own case law reflects that the codified Rules incorporated previous exceptions loosely catego common law gestae hearsay. high rized as res It consistency is time that the Brown, required that was in respect requiring the admission hearsay only through hearsay exceptions, codified be forms, applied hearsay including evidence of all that which has gestae.17 heretofore been described res overwhelmingly agreed, expressing Sister courts have no hesitation when finding gestae longer that res is no a valid See, rule. exception hearsay e.g., (7th Cir.1994) (en banc) (“[T]he Miller, 998, 13 F.3d Stephens use of gestae, obsolete.”); the term law, res of federal purposes essentially (same Keating, proposition); 754 F.2d at 509 Dennis, State v. supra, Ill.2d (1998) ("As Ill.Dec. 692 N.E.2d a basis for the admissibility evidence, Illinois has abandoned the of res hearsay as amor concept having inhibiting been phous, applied reasonable indiscriminately any analysis.”); (2006) ("The 39, 647, State v. 282 Kan. 144 P.3d 663 Gunby, concept gestae of res is dead as an basis for of evidence in independent admissibility Kansas."); (Me.1980) (expressing State v. 410 A.2d 219, 220-21 Hafford, "disap " gestae noting of the use of the term res and proval that the drafters of the Rules expunge of Evidence avoided the term "in order to [] from Maine phrase

176 complica- in its gestae arises confounding use of res more for called analysis of misconduct evidence derailing of the and tion 404(b), this case so well demonstrates Rule problem under testimony. Puglia’s of Graves’s of the treatment respect V. A. “things gestae notion of done” noted, res the common law’s As enlarged crimes,” doctrine developed into “inseparable or uncharged misconduct evidence through was admitted which charged without prove the crime impossible to when it was misconduct, uncharged and also when uncharged revealing the surrounding the circumstances explained the misconduct Martini, 240-42, 176, See, N.J. e.g., State charged crime. 404(b)’s predecessor, Rule (1993) (holding that 619 A .2d 1208 that, gestae, are uncharged acts as res 55, apply not did tried); Riley, being for which defendant components of offense gestae 73, (stating that res N.J.Super. supra, 86 A.2d part act is acts if other of other of evidence allows admission might main facts knowledge of which the “without the transaction understood”). majority of the Although the vast properly be at its existence as been directed gestae has heaped on res criticism hearsay, and commenta scholars against rule exception to the term, complete abolition of the explicitly called for tors have evidence"); Inc., 117, 121 Mkts., 891 S.W.2d v. Nat'l Super law of Bynote ("[W]e recognize gestae’ (en banc) longer (Mo. 1995) ‘res will no phrase objection to meaning admission of or an carrying either the sufficient support (1999) testimony."); 989 P.2d Hansen, 296 Mont. State v. proffered gestae] altogether ("The [res abandon the use phrase better is to practice or statute that rule of evidence instead, applies to, use specific Flores, N.M. 226 P.3d presented.”); State v. factual situation particular gestae than it (noting "create[s] more res problems 641, 652-53 context"); term in the evidence resolves,” unnecessary "is a completely (calling res as rationale for elimination of at 677 Horton, 764 P.2d supra, statements). admitting hearsay retaining concept it while the of “intrinsic evidence” that embodies 404(b). analyses for use in connection with under Rule gestae” The term “res should be once and for all abandoned as useless and confusing. Let it be said that such acts are receivable as of the “necessary parts deed,” of an entire or as elements of the or as “concomi- deed,” proof “inseparable anything reasoning tant of the criminal or else that carries its own act,” parts legal it; definition with but let discussion avoid this much-abused and sedulously unmanageable Latin wholly phrase. (Tillers rev.1983).] Wigmore § [1A 218, on Evidence at 1888 identify How to what is and is intrinsic evidence has become its own debate.

Specifically, Jersey, in notion of New the “intrinsic evidence” 401, in cross lies the hairs the intersection Evidence Rules hand, 403, 404(b), one Rule on the other. admissible; Under Rules 401 and relevant evidence is howev- er, provides Rule 403 that “relevant evidence [admissible under may probative substantially if its 402] Rule be excluded value is (a) issues, outweighed by prejudice, risk of undue confusion of (b) time, misleading jury delay, or or undue waste or presentation ap- A needless cumulative evidence.” different 404(b), proach pertains provides under Rule which wrongs, crimes, evidence of other or acts is not admissible to prove disposition of a in order to show that such acted in therewith. Such person person conformity evidence be admitted for other such as of motive, may purposes, proof opportunity, knowledge, intent, or absence of mistake or accident preparation, plan, identity relevant to a when such matters are material issue dispute, 404(b) added).] (emphasis [N.J.R.E. However, charged that is intrinsic to exempt crime is 404(b) from if the strictures of Rule even it constitutes evidence of 404(b) uncharged normally misconduct that would fall under crimes, wrongs, because it is not “evidence of other or acts.” See Graham, Wright Jr., 22 Charles Alan & Kenneth W. Federal (1978) (“One § key Practice and Procedure at 445 404(b) ‘other’; determining scope only words of Rule is crimes, wrongs, or acts than ‘other’ those at issue under the rule.”). pleadings general are made inadmissible under the Thus, charged only evidence that is intrinsic to a crime need satisfy relating relevancy, importantly the evidence rules most Thus, of evidence balancing characterization test. the Rule 403 principle because the the calculus significantly affects “intrinsic” unless evidence is admissible is that relevant animating Rule 403 negative substantially outweighed probative value its 404(b) evidence, operates from the Rule whereas feature of unless acts is inadmissible of other bad premise that evidence likely that It is therefore more proper purpose. a proffered for if into evidence will be admitted uncharged misconduct of evidence subject only to charged crime and intrinsic to the it is considered subject intrinsic evidence and if not considered 403 than it is Rule 404(b) 403. Rule and Rule to both intrinsic. determining what evidence is difficulty lies The gestae, there ancestor, law doctrine of res the common Like its concept of intrinsic evidence. at the criticism leveled also has been Capra, Martin & Daniel J. Saltzburg, Michael M. Stephen A. See (9th ed.2010). § 404.02 Some Manual Evidence Federal Rules of it, analyze the admissi away preferring to with courts have done 404(b). See, solely under Rule uncharged bility all misconduct of (D.C.Cir.2000); 923, Bowie, 926-29 232 F.3d e.g., States v. United (2008). Fetelee, Alter 175 P.3d 737 117 Hawai'i State “inextricably evi intertwined replacement test of natively, 18 404(b) analyses, with in connection developed for use has dence” to the test applied to that criticism similar although it suffers from intrinsic evidence: for 404(b) of Rule is that some conduct in the inherent difficulty application The charging nonethe document may referred to in the that is not defendant explicitly charged cannot be considered the crime it a relation to less stand such uncharged as this criminal activity have referred to Courts

wholly independent. charged it is not totally separate crime because intertwined” with the “inextricably range charged. intertwined of evidence that is inextricably from the crime cases. charged of varied as the fact patterns specific crime is as with the Uncharged,Miscon in the Law Evidence: Topics Special [Jennifer Schuster, Y. 404(b): Evidence, Intertwined Inextricably The Admissibility duct Under omitted).] (citations 42 Miami L.Rev. 950 U. Coming Res Gestae: A Procedur- 18 Imwinkelried, The Second See Edward J. Admitting Untangling Intertwined" Theory the "Inextricably al Approach for (2010). Uncharged Cath. U.L.Rev. Misconduct, an Accused’s Evidence of determining formulations for wheth- thus have different Courts crime, referring to it charged some evidence is intrinsic to the er evidence, “intricately others as relat- “inextricably intertwined” Bowie, ed,” supra, “intimately related.” See and others as formulations). (explaining appears There F. 3d at 928 n. different determining single no definitive test for whether evidence be category of charged intrinsic to the crime or even how broad that be; applied case-by-case should instead courts have Schuster, approach. supra, See 42 Miami L.Rev. at 951 U.

(“Courts inextricably scope intertwined have defined the evidence, however, guidelines determining no limits of exist.”).19 class of evidence this

B. readdressing categories In the other bad acts of res evidence, opportunity use this to direct trial courts to make the we analysis for the of all such Rules Evidence the touchstone admissibility uncharged of act evi- evidence. Whenever the bad 404(b) implicated, analysis is a must dence Rule be undertaken. 404(b) threshold is determination under Rule whether the crimes,” subject evidence relates to “other and thus is to continued 404(b), analysis under Rule or whether it is evidence intrinsic to crime, charged only satisfy the and thus need the evidence rules relating relevancy, importantly most Rule 403. 404(b) exclusion,

Although Rule is often described as of it one distinct, that, category focuses on a worrisome of if evidence 19A recent iteration of the intertwined test in State v. inextricably appears Nelson, in which the Court of Iowa reaffirmed the doctrine as a Supreme general against admitting "narrow rule evidence of other exception crimes” and held that its use be allowed "to the of what may only complete story wrongs, crimes, when the other or acts evidence is so related happened closely charged in time and and so connected to the crime that it forms place intimately (Iowa 2010). a continuous transaction.” 791 N.W.2d Such evidence be used to the "when a court cannot sever this evidence may complete story only leaving charged unintelligi from the of the narrative crime without the narrative confusing, misleading.” ble, or Ibid. incomprehensible, jury purposes, and the presented, only is admissible for limited not, may may, and both as to how the evidence must be informed through provides analytical framework The Rule be used. crimes, wrongs, or acts” evidence should potential which all “other 404(b) starting point shall be the default be sifted. Hence Rule past also uncharged acts that in the had been analysis of bad gestae. known as res making the determina- litigants threshold

To aid courts “other crimes” or is whether the evidence relates to tion of crime, charged look to the Third Circuit’s intrinsic to the we (3d Green, 617 F.3d 233 of test in United States statement the Cir.2010). workable, description narrow of what provides Green crime, charged intrinsic evidence of the uncharged acts makes 404(b)’s require- subject purpose directed to Rule therefore explained, Appeals ments. As the Court categories First, narrow of evidence. we ... reserve the “intrinsic” label for two charged gives the offense. This effect evidence is intrinsic if it “directly proves” 404(b)’s wrongs, or acts.” to evidence of “other If Rule crimes, applicability only charged uncharged it is not evidence offense, misconduct the directly proves “uncharged with crime. acts Second, contemporaneously some “other” performed charged intrinsic if facilitate the commission they crime be termed may 404(b). under Rule charged all else must be crime.” But analyzed holding if much, that our will exclude any, it is matter, unlikely As practical background or the story” admissible as “completes is currently that the intertwined test. We reiterate purpose evidence under the inextricably 404(b) jury is from the evidence that the defendant prone is keep “simply jury implying that needn’t is otherwise a bad to commit crimes or person, other me strength government’s evidence.” “No overmuch about the worry if and one use rule,” crimes or other bad acts forbidden by proper of prior confusing jury.” “is the need to avoid such evidence (internal omitted) (emphasis original) [Id. ]. 248-49 citations tight prediction impact about of its court’s The Green expectation plainly tied to its of intrinsic evidence delineation 404(b) other-crime evidence will that a “no confusion” use of Rule jury. before the provide a better use such evidence channeled as through its citation to two cases explains principle that Green (7th Cir.2008), Taylor, v. 522 F.3d 731 examples, United States (3d Cir.1982), Simmons, noting 679 F. 2d 1042 and States v. United Simmons, long recognized has “that supra, 679 F.2d at any non- may admissible if offered for crimes evidence be other necessary purpose, [including] provide the need ‘to propensity relationships among play the background information’ about the Green, Thus, supra, 617 at 249. proper purpose.” as a F.3d ers added, concluding emphasis, in a Green court the admitted outside the framework of if not other crimes evidence most, all, currently 404(b) “background” evidence will remain admissible under the Rule as approach difference is that will have to provide we adopt today. only proponent evidence, notice of his intention to use the and identify specific, non-propensity (ie., jury allowing full for which he seeks to introduce it to hear the purpose crime). story [Ibid.] (adding n. when admissible as

See also id. at 249 even value, balancing having clarifying “background” Fed.R.Evid. 403 required). tight description of field intrinsic evidence narrows the

Green’s 404(b)’s uncharged misconduct that is excluded from channeled 404(b) analysis. requirement of a for all The addition notice Nance, evidence, date, required which has not been see State 376, 386-87, (omitting N.J. 689 A.2d 1351 notice from obligations operation), but which we now endorse listed Rule’s require prospectively, encourage orderly will discus- and will parties analysis require sion and of such evidence that will engage rigorous thoughtful analysis trial courts to proper testimony, use of such and thus deter off-the-cuff claims, conclusory explanations rulings, to which res prone. are 404(b) regard

There is no need to our Evidence Rule containing non-propensity purposes per an exhaustive list of the Green, recognized in mitted of other crime evidence. Just as was allow, cannot our there is no reason that our courts under Rule 404(b), “necessary admitted for a similar back be stated, or, confusing ground” as otherwise “the need to avoid Green, supra, at 249. jury,” non-propensity purpose. See 617 F.2d recognized comparable As the Third Circuit has for the Federal Evidence, Judge persuasively and as Posner discussed 734-36, apply we need not the listed Taylor, supra, 522 F.3d at 404(b) they as if were exhaustive. exceptions in sum, provide Rules the struc Jersey’s New Evidence In analyzed explained rulings be by should ture which evidential courts, by paradigm set forth herein. With by trial informed gestae use of res to disapprove of the further opinion, this we Fundamentally, invocations of res rulings. support evidential lack the of evidence do the basis for the admission as rulings uniformity that evidential analytic rigor, precision, and the codified Evidence Rules.20 to have under were intended Therefore, practice invoking of “res appeal, end the with this we evidence, in of circum gestae” explanation an for the admission Evidence. We do application of the formal Rules vention of the of promote litigants because it will for courts and for this as aid of evidence. We uniformity predictability in the consideration govern the Jersey Rules Evidence must hold that the New of that heretofore of evidence analysis, support the admission gestae. referred to as res has been

VI. matter, following. According to we add the As a final judicial this dissenting colleagues, any part of decision our evidentiary exceptions Although to have were stated some common law Evidence, Jersey adoption our decisions have of the New Rules survived the of having capacity "place recognized codified rules was the to that the benefit from for the of the fundamental framework the bench and the bar on notice both See, Byrd, during e.g., a trial.” State admission of evidence Evidence, Biunno, (2009) (citing comment 1 Current N.J. Rules A.2d 285 (2008) ("New comprehen Jersey’s provide a Rules Evidence on N.J.R.E. 102 designed provide specific instruction to the bench structure sive and coherent may array evidentiaiy arise in contested contexts and bar in the vast trials.”)). impedes principle the uniform and law evidential Where common abandoned, rules, application be predictable the codified it can and should clarity promised by adoption thereby eliminating of a cohesive an obstacle to Accordingly, respect admissibility with of evidence. set of rules for the evidence, gestae” as a basis for the admission reference to "res continued finishing point has arrived. beyond minimum to accord relief goes needed Court That non-precedential constitutes dicta. parties to an action articulated in contrary principle is to the established proposition respected authorities that various argued counsel and on a involved in a case, by an expression opinion point although of the not essential to the court, mentioned by disposition deliberately authoritative[ ] when it declared the court as a case ... becomes is expressly by guide for future conduct. (2006).] § [21 Courts 230 C.J.S. opinion higher court differently, “matters in the of a

Phrased presented primary which are not decisive of the issue but which dicta, binding germane are to that issue ... are not but decisions (2007). Appellate § of the court.” 5 Am.Jur.2d Review 564 system by explained As in the context of the federal the First Circuit:. courts are bound Court’s considered dicta almost as by [A]ppellate Supreme outright holdings, as the Court’s as a dictum is of when, here,

firmly particularly vintage recent and not enfeebled statement. If lower courts by any subsequent felt free to limit Court to the facts of each then case, Supreme opinions precisely jurisprudence litigants, our would be in with shambles, system lawyers, legislatures grope guidance. left to for some semblance of reliable aimlessly (1st Cir.1991) (internal Tech., v. Mass. Inst. 950 F.2d 19 citations [McCoy 13, (1992).] omitted), cert. 504 U.S. 112 S.Ct. 118 L.Ed.2d 545 denied, 910, 1939, Easterbrook, Circuit, Judge writing for the Seventh further illus- absurdity contrary approach: trated the of a (1966), As Arizona, with Miranda v. 384 U.S. 86 S.Ct 16 L.Ed.2d 694 436, 1602, (1974), McDonnell, v. 418 U.S. 94 S.Ct. 41 L.Ed.2d 935 and other 539, 2963, Wolff decisions, almost all of the could be labeled dicta. The comprehensive opinion disregarded ground details of could be on the Miranda, Ernesto example, given warning, Miranda had been so the Court could not on the any pronounce giving warnings three but not four of the on its list. The Court consequences arguments sort, has rebuffed of this however. (7th Cir.1988).] [Faheem-El v. 841 F.2d 730 Klincar, 712, sum, legal findings high In and determinations of a analysis weight by court’s considered must be accorded conclusive consistently lower courts.21 Our courts have this rule. followed 21 (9th Cir.1983) (“In Underwood, Accord. States 717 482, United v. F.2d 486 regularly the decision of individual cases the Court must and does establish See, Breitweiser, 271, 282-83, N.J.Super. 861 A.2d e.g., State v. denied, (App.Div.2004), 868 A.2d certif. (2005). confronting precise appeal—the of this And when issue similarly viability gestae—our sister courts have abolished of res in cases where the contested evidence deemed doctrine evidence, thus, through rules of where admissible the formal gestae did not affect the cases’ the decision to eliminate res 647, 660-61 Gunby, 282 Kan. 144 P.3d outcome. State Mkts., Inc., (2006); Bynote Super v. Nat’l 891 S.W.2d (en banc). (Mo.1995) gestae by those courts is The abolition res believe, hardly, appear would mere dicta the dissent need not be followed.

VII. Appellate as modified judgment Division affirmed by opinion. this RIVERA-SOTO, concurring part dissenting and

Justice part. majority concludes that the admission of the

To the extent the 404(b), challenged proper under N.J.R.E. and there- evidence was variety presented guidelines govern of situations related to that in the a system were free to case. The could not function if lower courts immediate guidelines they precisely disregard whenever did not match the facts of the such denied, 1036, announced.”), guidelines U.S. 104 which the were cert. 465 case in Co., 306, 1309, (1984); v. GE 315 310 n. S.Ct. 79 L.Ed.2d 707 Pub. Serv. Co. F.2d (10th Cir.) ("Without exploring and the intricate distinctions between dictum 6 clear, decision, recognize language necessary we we must the conclude that denied, direct, Court.”), Supreme explicit, unqualified cert. statement of the and 1695, Williams, 809, (1963); People v. 204 374 U.S. 83 S.Ct. 10 L.Ed.2d 1126, 191, 250, (2003) ("[C]omments in a 273 Ill.Dec. 788 N.E.2d Ill.2d case, unnecessary disposition judicial opinion to the of the but involve that are argued by parties the force of a determination briefed the ... have an issue and dispositive weight by reviewing inferior and should receive in an court Beecher, court."); (App.1988) Luhman v. 144 Wis.2d N.W.2d ("[Mjatters presented germane primary issue but to that issue not decisive to the dicta, court."). binding the are not but decisions of However, conviction, I concur. fore affirms defendant’s added, unnecessary step jettison- majority takes the extent the jurisprudence, I from our dissent ing of res the doctrine dicta, plain grounds: majority’s discussion is separate two value; majority’s reason- jurisprudential and the deserving of no simply in error. ill-conceived and ing and conclusions are I. fully recognizes, appeal this and majority well As the evidence in issue it concluded that “the completely decided once 404(b)[,]” that “defendant been admissible under would have error, error, as a result of the no let alone reversible suffered result, evidence[,]” that, affirm admission as a “we 167,19 modified, judgment Appellate Division.” Ante Nevertheless, majority creates a straw man and at 1001. A.3d when it asserts that various proceeds “[t]he then to knock it down counsel, court, Appellate and the taken the trial positions confusion and uncer- ... that there exists Division demonstrate gestae, of res tainty use of the common law doctrine about the Jersey’s evidence very feature of New its status as viable jurisprudence.” Ibid. ultimately discarding, in justification addressing

That viability appeal, continued of the doctrine the context of this majority’s pronounce gestae lays bare the true nature res is, “dicta, they nothing than ‘that issue: are more ments on the unnecessary in the case and something that is to the decision ” McLaughlin, v. 205 N.J. precedential.]’ therefore not State Homes, Inc., (quoting 200 n. 10 Dean Barrett J., (Rivera-Soto, concurring 286, 307, part in 8 A.3d 766 (citations quotation marks omit dissenting part) in and internal ted)). reason, majority’s to “end the declaration For explanation for the admis invoking gestae’ of ‘res practice evidence, application of the formal in of the sion of circumvention [,]” categorically at is 19 A.3d Rules Evidence ante of unnecessary appeal. outcome of this It doubt and without such, dicta—plain simple—and, as it should be is blunt force disregarded entirety. in its

II. Furthermore, majority incorrectly thereby conflates—and improperly separate concepts confuses—two and distinct well grounded admissibility in of other act evidence law: bad 404(b), and the admission of evidence under N.J.R.E. of evidence evidence, gestae. In law of res the established those notions instead, principles, worthy represent, independent each which is own, dignity. of its stand-alone terms, Evidence Rule

By proscribes explicit its the admis “[ejvidence trait, person’s character or sion of of a character thereof, including a trait of or or lack ... care skill purpose proving person conformity in that the acted therewith 404(a). N.J.R.E. particular on a As this Court made occasion[.]” Dobrosky, clear in Johnson v. or a trait thereof is not it evidence of a character admissible when is person’s an element of a claim or defense. thus the connection Admissibility depends upon evidence and a claim or defense that in

between character proffered actually danger in issue. That limitation reflects the inherent the introduction of such judgment a trial of evidence—its to convert the issue to a susceptibility for character evidence to be admissible ... a character or Thus, person. person’s trait of character to a claim or defense in the case. his must be related specific (2006) (citations N.J. [187 and internal 902 A.2d 238 marks 594, 604, quotation omitted).] 404(b) N.J.R.E. point, although repeats general More to the proposition “[ejxeept provided as otherwise ... evidence crimes, wrongs, prove or acts is not admissible to other disposition person person of a in order to show that such acted in that therewith[,]” additionally conformity provides may purposes, be admitted for other such as “[s]uch motive, intent, preparation, knowledge, proof opportunity, plan, identity or of mistake or accident when such matters are absence dispute.” relevant to a material issue contrast, gestae, fundamentally focuses on a different Res concern. As commentators on our Rules Evidence aptly have

187 being noted, matter action subject is the the “[c]onduet which 404(b) is rule because the be under N.J.R.E. cannot excluded tried on respect to conduct that occurred only a consideration with Biunno, Zegas, Jersey Rules New Weisbard & other occasions.” (2011) 404, Evidence, (emphasis at 194 Comment 7 to N.J.R.E. terms, then, “literally gestae straightforward In res supplied). done,’ a contem ‘things gestae under res doctrine and the means surrounding disputed is involving statement events poraneous Branch, 338, 358, A.2d v. 182 N.J. 865 State [i]s sue admissible.” omitted). (citation (2005) That quotation marks and internal integral Jersey’s long part New principle has been clearly of the cases so since one earliest jurisprudence, and most the its was altered under composition this once decided Court Co., Thus, Trust in Robertson v. Hackensack 1947 Constitution. clearly that proclaimed this Court justifying gestae truth, as res has as its that the of the admissibility principle proofs the seam, of one without woven from top like the Master’s is robe, piece, throughout, facts has its attributes and its kindred each fact inseparable affecting its with character, its and that the of a scene reproduction materially not too created and without and each incidents, naturally artificiality multiple texture tend the truth. distant will and disclose point time, by very quality (1949).] [1 304, 312, N.J. 63 A.2d 515 today, recognized has and that differ- Until this Court honored ence, gestae res unfailingly and has drawn a distinction between against prior in N.J.R.E. proscription bad acts codified 404(b). emphasized doing, In so it has ... concomitant the main fact “Lt]he rule is that where declaration is with it character, so connected it as to illustrate its may under consideration with gestae; of the res where it is narrative of but, merely past be proved part character of occurrence.” it cannot received as occurrence, proof be Long, (quoting Blackman v. W. [State 155, A.2d (Sup.Ct.1902)).] N.J.L. A. 370 Co., & Seashore R.R.

Jersey generated by prohibition against salutary clear effects hand, acts, gestae prior res proof bad on one doctrine, other, amply counsel Court more than that this reason; separately for a continue to consider them bedrock should statement, speak act or res focuses on the omission while issue, directly at N.J.R.E. integral part act as an of the matter or 404(b) proof addresses an offer of occurring of statements or acts separate apart from the at prove matter issue but offered to a issue, fact relevant to the at something matter far different than proof Therefore, of the matter itself. to “disapprove of the gestae further support rulings use res to evidential [purportedly gestae because] invocations of res as the basis for the admission of analytic rigor, evidence ... lack precision, uniformity the rulings evidential were intended to have under the codified Evi [,]” dence Rules ante at 182, 1011, 19 majority A.3d at as the gratuitously here, plainly has done is ignores incorrect and the purposes different focuses and evidentiary the two rules. Moreover, light foregoing, that, in it is ironic while explicitly discarding recognized doctrine, the gestae well res majority implicitly preserves by its substance embracing the ad missibility of evidence that is charged.” “intrinsic the crime 179-82, Ante at 19 By doing, A.3d at 1009-11. majority so Shakespearean injunction: runs afoul of the ‘What’s in a name? That which by any we call a rose other name would smell Juliet, sweet.” Romeo and Shakespeare, William act se. II. In short, evidence “intrinsic to charged” gestae the crime is res evidence, given. no matter what moniker it is join

Because I cannot in the wholesale and needless abandon- ment of a less-than-convincing time-honored doctrine for what are reasons, I dissent.

III. only following. I add Relying secondary, nonpreceden sources, ante 182-84, 1011-12,1 tial majority A.3d at majority To the extent the cites to decisional it is to that of any authority, rationalizing lower courts must abide the dicta issued their why they by courts of last resort. None of those cases addressed the respective question jurisprudentially here: whether it is sound for a presented a court—particularly grounds court of last resort—to decide a case on narrow and then volunteer sweeping holding Although to the outcome. most often discussed necessary e.g„ see, of constitutional Committee to Recall applied respect questions, by engaging in little raised here concerns seeks dismiss According majority, it what reasoning. circular more than unceremoniously burying of res the doctrine says respect it overbearing reason: because simple, for a not dicta says so. willy-nilly decide issues appeals can that a court of

The notion case the wholesale unnecessary outcome of the results in judicial advisory opinions, practice our decision- issuance of Burke, rejects. v. making categorically See Abbott system (“We (2008) advisory give an cannot N.J. 960 A.2d 360 authority of our It is a cornerstone decisional opinion[.]”). advisory opinions.” questions give or cannot answer abstract “[w]e 135, 136, Galloway, 971 A.2d Twp. v. G.H. N.Y., Corp. Realty Eq. (citing Park Ass’n Crescent Tenants Parsons, (1971); 98, 107, Tpk. N.J. Auth. v. 3 N.J. 275 A.2d 433 58 2 G.H., (1949)). Court, 235, 240, This in stated the A.2d 875 N.J. 69 clearly: judicial “The undergirding governing rule rationale Wells, 79, States v. 204 N.J. United Senator Robert Menendezfrom Office of J., 141-42, (2010) (Hoens, dissenting) (stating jurispru 7 that "our A.3d 720 we replete we have do not address dence is with instances where insisted narrower, is when a non-constitutional result available” constitutional issues omitted; Reid, cases)); (citations citing quotation State v. 194 internal marks and 386, 384, 389, (2008) Twp. Stafford, (quoting Bell v. 110 N.J. N.J. 945 A.2d 26 (1988), proposition A.2d for that "court should not reach constitutional 692 absolutely litigation”), equally imperative dispose of it is an issues unless to And, minority appropriate here. to the extent a discrete of "sister observation cliff, jump particular Court should far more courts” have chosen to off this this humbly join choose not them. 522, 528, (2003) Harvey, (quoting v. 826 A.2d 597 State See also State 176 N.J. " 456, Gartland, 464, (1997) observing 'this 149 N.J. 694 A.2d jurisdiction advisory opinions render or exercise its in Court will not 439, 448-49, ”); County, 790 A.2d In re Camden 170 N.J. abstract' 107-08, Ass’n, supra, (quoting 275 A.2d CrescentPark Tenants “ Constitution, ‘[ujnlike express language proposition is no the Federal there judicial Jersey's [confining] power our to actual in New Constitution cases Nevertheless, advisory opinions or not render controversies. we will function ”). the abstract' operates function dispute best when a presented concrete Ibid.; Sills, see also Grand Union Co. v. courts.” 43 N.J. (1964) (noting 204 A.2d 853 policy “wholesome considerations which confine courts to actual controversies and dissuade them rendering from advisory abstract or opinions” (citing Proprietary Ass’n v. Pharmacy, Bd. 62, 72, 16 N.J. (1954))). 106 A.2d 272 dispute”

The “concrete presented in appeal this is answered fully, completely conclusively by to the Rules Evi- resort dence, majority conclusion the first advances and with which I Anything concur. unnecessary further is and, to that outcome restraint, the exercise of rejected. sum, should be In if the res condemned, doctrine is to be it should be when the doctrine itself appeal, is the issue on and not some appendage collateral opinion squarely that stands on its own without overreaching seemingly for a plainly unnecessary desired but result.

For Justice RABNER and affirmance modified—Chief LONG, LaVECCHIA, ALBIN, RIVERA-SOTO, Justices (temporarily HOENS and assigned)—7. STERN For part; concurrence in dissent in part—Justices RIVERA- SOTO and HOENS—2.

19 A.3d 1016 IN LAWRENCE, THE MATTER OF HERBERT F. AN ATTORNEY (ATTORNEY 261181970). AT LAW NO.

June 2011. ORDER Disciplinary Review having Board filed with the Court its 10-255, decision in concluding DRB that HERBERT F. LAW- COLLINGSWOOD, RENCE of who was admitted to the bar of

Case Details

Case Name: State v. Rose

Court Name: Supreme Court of New Jersey

Date Published: Jun 8, 2011

Citation: 19 A.3d 985

Docket Number: A-111 September Term 2009

Court Abbreviation: N.J.