State of New Jersey v. Mark C. Sheppard , 437 N.J. Super. 171 ( 2014 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1423-11T4
A-0195-12T4
STATE OF NEW JERSEY,
Plaintiff-Respondent, APPROVED FOR PUBLICATION
v. September 3, 2014
MARK C. SHEPPARD, APPELLATE DIVISION
Defendant-Appellant.
———————————————————————————————————
Argued (A-1423-11) and Submitted (A-0195-12)
March 5, 2014 – Decided September 3, 2014
Before Judges Sapp-Peterson, Lihotz and
Hoffman.
On appeal from Superior Court of New Jersey,
Law Division, Bergen County, Indictment No.
09-12-02182.
Joseph P. Rem, Jr., argued the cause for
appellant in A-1423-11 (Rem Zeller Law
Group, attorneys; Mr. Rem, of counsel and on
the brief; James B. Seplowtiz, on the
brief).
Catherine A. Foddai, Senior Assistant
Prosecutor, argued the cause for respondent
in A-1423-11 (John L. Molinelli, Bergen
County Prosecutor, attorney; Ms. Foddai, of
counsel and on the brief).
Rem Zeller Law Group, attorneys for
appellant in A-0195-12 (Joseph P. Rem, Jr.,
of counsel and on the brief; James B.
Seplowtiz, on the brief).
John L. Molinelli, Bergen County Prosecutor,
attorney for respondent in A-0195-12
(Catherine A. Foddai, Senior Assistant
Prosecutor, of counsel and on the brief).
The opinion of the court was delivered by
HOFFMAN, J.A.D.
Defendant Mark Sheppard appeals from the judgment of
conviction entered following a jury trial, where he was found
guilty of second-degree aggravated assault and four other
offenses, arising out of the stabbing of a Hispanic man.
Defendant claims trial error regarding admission of evidence to
prove an anti-Hispanic motive for the crimes charged, including
a video-recorded encounter between defendant and the police
subsequent to the stabbing. He had separately filed an appeal
from the denial of a suppression motion and resulting
convictions of two weapons offenses. These appeals are
consolidated for purposes of this opinion. After careful
review, we affirm the denial of defendant's suppression motion
and weapons-offense convictions, but we reverse and remand for a
new trial on the aggravated assault charge and related offenses.
I.
On December 4, 2009, a Bergen County grand jury returned an
eight-count indictment against defendant, charging him with
first-degree attempted murder, N.J.S.A. 2C:11-3 and N.J.S.A.
2C:5-1 (count one); second-degree aggravated assault, N.J.S.A.
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2C:12-1(b)(1) (count two); third-degree aggravated assault,
N.J.S.A. 2C:12-1(b)(2) (count three); third-degree possession of
a weapon (a knife) for unlawful purposes, N.J.S.A. 2C:39-4(d)
(count four); fourth-degree tampering with physical evidence,
N.J.S.A. 2C:28-6(2) (count five); third-degree hindering
apprehension, N.J.S.A. 2C:29-3(b)(1) (count six); second-degree
possession of a weapon (a handgun) by a previously convicted
felon, N.J.S.A. 2C:39-7(b) (count seven); and fourth-degree
possession of weapons (switchblade knives) by a previously
convicted felon, N.J.S.A. 2C:39-7(a) (count eight). The trial
court granted defendant's motion to sever counts seven and eight
for a separate trial. Twenty-two months after the stabbing
incident and less than two months before trial, defendant filed
a notice of claim of self-defense.
Over a period of twelve days, in June and July 2011,
defendant was tried on the charges set out in the first six
counts of the indictment. We glean the following facts from the
trial record.
Born in El Salvador, J.I. came to the United States in
1999. He obtained the necessary visa to remain here legally in
2000, and maintained his visa until 2005, when he became an
undocumented alien.
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On July 4, 2009, J.I. attended the Independence Day parade
in Ridgewood. After the parade, J.I. went to a tree-shaded area
in a utility right-of-way, where there sits a large concrete
pad, known locally as "The Rock." J.I. hung out there with
friends and got drunk, becoming boisterous, and his friends
eventually left. Sometime later, defendant appeared and had an
altercation with J.I.; as a result, J.I. suffered near-fatal
stab wounds and lost consciousness.
At approximately 9:00 p.m., members of the Waldwick Police
Department were dispatched to investigate a report of an injured
male lying on the ground near a restaurant on Franklin Turnpike.
On arrival, the police officers found J.I. lying on his back,
unresponsive; minutes later, an ambulance rushed J.I. to
Hackensack University Medical Center (HUMC). Dr. Roger Keys, a
trauma surgeon at HUMC, testified J.I. sustained stab wounds on
both sides of his chest; he also found lacerations on J.I.'s
right hand, which he described as "probably defensive wounds."
J.I. lost about four pints of blood and would have bled to death
had he not received treatment when he did. J.I. remained in the
hospital for eight days, and could not return to work for
thirteen months.
J.I. described the stabbing, stating his assailant twice
yelled for him to "shut the fuck up," prior to attacking; he did
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not hear the assailant utter any anti-Hispanic epithets. When
the police showed him a "photo lineup," he could not identify
his assailant.
The police brought a tracking dog to the area where they
found J.I., and the dog followed a trail of blood to a deck on
the side of defendant's house, approximately 900 feet away. Two
officers looked into a window of defendant's closed garage door
and observed a blood-covered bicycle resting on the floor of the
garage. The police knocked on the front door and called
defendant's telephone number, but received no response. The
police then waited for a detective to arrive.
At about 10:30 p.m., Detective John Frazer of the Bergen
County Prosecutor's Office arrived on the scene. After
conferring with a police officer, Detective Frazer walked to
defendant's home, shined a flashlight into the garage window,
and observed the blood on the bicycle and floor. He then went
to the side deck where he observed blood on the deck in front of
a sliding glass door; while the living room lights were off, he
could see the "glimmer of a T.V. in the living room."
After searching around the outside of the house, Detective
Frazer had an extensive conversation with the police officers
present about their inability to contact anyone within the
house. Concerned about the "copious amount of blood" on the
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bicycle and on the garage floor, as well as the circumstance
that no one was answering the door or telephone, Detective
Frazer decided to enter the house to "see if we could find an
injured person or an unresponsive person . . . ." Detective
Frazer decided to enter the home without a search warrant
because, in his experience, it would take several hours to
obtain a search warrant and an incapacitated person might not
survive such a wait.
The police entered the unlocked front door of defendant's
house at approximately 11:30 p.m. The police did not find
anyone present, and the search ended at 11:47 p.m. Detective
Frazer then returned to "The Rock," where he learned that the
police had been notified by Valley Hospital that defendant had
been admitted to the emergency room three hours earlier.
Detective Frazer then left to obtain a search warrant for
defendant's home. After obtaining a warrant, the police
searched defendant's home and were finished before 7:30 a.m. on
July 5, 2009. Detective Frazer testified that, in addition to
finding blood on the bicycle, in the garage, and in other areas
of the house, he found blood on a grinding wheel located in the
garage. The blood drops on the grinding wheel provided the
basis for charging defendant with tampering with physical
evidence. Before trial, defendant unsuccessfully moved to
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suppress all evidence obtained from the two searches of his
home.1
Thomas Butler, a Valley Hospital emergency room nurse,
testified he recorded that defendant was admitted with an injury
to his right hand; he made this entry on July 4, 2009, at 9:14
p.m. Defendant told Butler he received the injury because "he
was intoxicated and had an accident while sharpening a lawn
mower blade."
On October 11, 2009, more than three months after the
stabbing of J.I., defendant was a passenger in a vehicle
operated by a friend, when the vehicle was stopped by a Waldwick
police officer, based upon a suspicion of drunken driving. The
stop occurred in front of defendant's home and the police
allowed him to exit the vehicle, while they conducted a field
sobriety test on the driver. One of the police officers present
wore a sound-recording device during the stop, while a camera,
mounted in a patrol car, video-recorded portions of the stop.
The audio recorder and video camera recorded a loud,
profanity-laced rant of defendant, who appeared intoxicated. He
1
Judge Harry Carroll denied defendant's motion after
determining the warrantless search of defendant's home was
justified under the emergency-aid exception to the warrant
requirement. Judge Carroll only decided the suppression motion;
he was not the trial judge.
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referred to one officer as a "fucking homo" and another as
"fat." He also accused the police of breaking his DVD player
and laptop computer, and stealing his "adult DVDs," during the
search of his home three months earlier, following the stabbing
of J.I. As a result of his aggressive demeanor, the police
threatened to arrest him for disorderly conduct. During the
encounter, defendant appeared to reference the stabbing of J.I.,
when he yelled:
Well, you know what[?] I did nothing in
this town except beautify the whole thing
and rebuilt half of it and these mother
fuckers [inaudible] and start telling me I
fucking eviscerated some little Spick[.]
[W]ho gives a fuck about some little
Spick[?] [A]nd I didn't do it anyway, I
wasn't even there[,] so fuck you! Stupid
Pigs.
At trial, the State presented the recordings of defendant's
intoxicated rant as evidence of his "hatred and prejudice
against Hispanic immigrants" and as proof of his motive for
attacking J.I.
Defense counsel objected, stating the "video is highly
prejudicial. It shows my client screaming and ranting and
raving and making other statements" not related to Hispanic
persons. The judge overruled the objection and admitted the
bulk of the disputed evidence, ordering only limited redactions
in response to defense counsel's concerns. Specifically, the
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judge required redaction of the recordings to eliminate
defendant's references to homosexuality, obesity, and prior
drunk-driving episodes. The judge refused to redact the
recording further, reasoning that the "demeanor . . . exhibited
by the defendant on the tape . . . is what it is and I don't
feel that any prejudice that the jury may have towards somebody
flipping out over maybe nothing outweighs the probative value";
the recordings were redacted in accordance with the judge's
ruling.2 The judge also ruled the jury must receive appropriate
limiting instructions when the evidence was presented, and as
part of the jury charge, be instructed on the restricted use
they could make of the evidence under N.J.R.E. 404(b).
Officer Jody Zuzeck testified concerning the October 11,
2009 encounter and the recordings that were made at that time.
The redacted recordings were then played for the jurors, who
were provided with a corresponding transcript. On cross-
examination, Officer Zuzeck was asked whether someone on the
recording had talked "about a gun being pointed at you"; she
replied that defendant "had gone in the house and I believe
2
This video, as redacted, along with testimony of J.M., an
acquaintance of defendant, described later, was the only
evidence concerning defendant's alleged anti-Hispanic motive for
attacking J.I.
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Officer Greco was indicating to me to take cover because he is
known to have weapons."
Immediately thereafter, the judge issued a limiting
instruction concerning the recording and testimonial evidence.
The judge noted that the evidence involving defendant's anti-
Hispanic comment was admitted to establish defendant's "alleged
motive in attacking [J.I.]," and that
you may not use this evidence to decide that
[defendant] has a tendency to commit crimes
or simply that he is a bad person. That
is[,] you may not decide that just because
he has committed wrongs or acts he is more
likely to be guilty of the present offense.
I have admitted the evidence only to
help you decide the specific question of
motive. You may not consider it for any
other purpose and may not find that
[defendant] is guilty simply because the
[S]tate had offered evidence that he may
have committed such wrongs or acts.
While the limiting instruction expressly addressed the use that
the jury could make of defendant's anti-Hispanic comment on the
recording, it did not address the use that the jury could make
of any of the other matters contained on the remainder of the
recordings.
As further proof of defendant's alleged anti-Hispanic
motive for stabbing J.I., the State presented the testimony of
J.M., an acquaintance of defendant, concerning derogatory verbal
references that defendant made about Hispanic persons in the
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past. J.M. testified that he met defendant intermittently over
an eleven-year period at Alcoholics Anonymous meetings and that,
following the meetings, the participants would go out and
socialize over a meal. At such gatherings, J.M. heard defendant
refer to Hispanic persons as "[s]pics or wetbacks" and state
that "spics are going to take over the country, illegal
immigration, [a]nd because they have big families that they
would take over the country, [a]nd that the white man was in
jeopardy."
J.M. also testified that he employed defendant to do
carpentry work for him occasionally and that, when defendant
noticed a four-man Peruvian crew working at J.M.'s construction
site, defendant
expressed to me that I was part of the cause
of precipitating the ills of the country,
where we're going wrong, that I was hiring
illegal immigrants to provide these
services, [a]nd [defendant] also expressed
that in his neighborhood that Spanish
people, or Latinos, or spics were moving
into his neighborhood [a]nd he felt
jeopardized by that.
At no point did J.M. identify an exact time or place when
defendant made those comments.
On cross-examination, J.M. testified that defendant had
filed a lawsuit against him for unpaid bills for services
rendered and that the matter had been resolved through
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arbitration, about seven years earlier. He testified that he
was initially angry with defendant for suing him, but that the
anger passed.
Defendant elected to testify at trial; his version of
events occurring at "The Rock" differed markedly from that of
J.I. Defendant claimed he offered to share a drink with J.I.,
who then drew a knife and ordered, in Spanish, that defendant
give him money. Fearing for his safety, defendant reached out
to grab the knife and J.I. lunged at him with the knife, causing
a wound on defendant’s right hand. The two men struggled over
the knife and then fell to the ground, still fighting. Before
they fell, defendant stabbed J.I. with the knife "more than once
in the chest area." After they fell to the ground, defendant
subdued J.I. and the fight ended. Defendant testified that,
following the stabbing, he "got up and was kind of freaking
out." He then jumped on his bicycle and rode home.
Defendant testified he fled the scene and did not call the
police because he thought he "wouldn't get a fair shake from the
police[,]" because of his prior criminal record (a 1992 second-
degree conviction). Defendant also admitted he did not tell the
truth at the hospital when he said he had injured his hand while
sharpening a lawnmower blade. Defendant explained he was
concerned that, if he told the nurse he was involved in a knife
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fight, the hospital would notify the police, and he "didn't want
police involvement because [he] thought they wouldn't believe
[him] at all."
On July 18, 2011, the jury returned its verdict, finding
defendant not guilty of attempted murder, under count one, but
guilty of second- and third-degree aggravated assault, unlawful
possession of a weapon, evidence tampering, and hindering
apprehension, under the remaining counts. After merger, the
judge sentenced defendant on the second-degree aggravated-
assault conviction to the maximum term of ten years of
imprisonment, subject to an eighty-five percent parole
disqualifier under the No Early Release Act (NERA), N.J.S.A.
2C:43-7.2. On the tampering-with-evidence conviction, the judge
sentenced defendant to an eighteen-month term of imprisonment,
and on the conviction of hindering apprehension, defendant
received a five-year term of imprisonment, both terms
consecutive to the sentence for aggravated assault.
On April 17, 2012, defendant pled guilty to the severed
weapon-possession charges, pursuant to a plea agreement, and
received a sentence of five years of imprisonment, to run
concurrently with the prison terms imposed on October 7, 2011.
As part of his plea agreement, defendant reserved the right to
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appeal the denial of his suppression motion as well as the
court's denial of certain jail credits.
II.
On the appeal of his conviction for the weapon-possession
charges, defendant raises the following issues:
POINT I: THE WARRANTLESS SEARCH OF THE
SHEPPARD HOME WAS IN VIOLATION OF
DEFENDANT'S CONSTITUTIONAL RIGHTS AND THE
TRIAL COURT ERRED IN FAILING TO SUPPRESS ALL
FRUITS OF THAT SEARCH AND FURTHER ERRED IN
DENYING THE MOTION TO REOPEN THE HEARING.
POINT II: THE SENTENCING COURT ERRED BY
DENYING [DEFENDANT'S] 378 DAYS OF JAIL
CREDIT TO WHICH HE WAS ENTITLED BASED ON THE
TIME SERVED PRIOR TO SENTENCING ON THE OTHER
COUNTS OF THE INDICTMENT.
Regarding defendant's second point, the State now agrees
that defendant should have received 378 days of jail credit,
pursuant to State v. Hernandez, 208 N.J. 24 (2011). We
therefore remand to the Law Division for the entry of an amended
judgment of conviction reflecting these additional jail credits.
Addressing defendant's first point, which challenges the
court's denial of his suppression motion, we are not persuaded
by defendant's arguments. In reviewing a decision on a
suppression motion, we must defer to the judge's factual
findings, so long as they are supported by sufficient credible
evidence, and we owe special deference to the judge's
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credibility determinations. State v. Diaz-Bridges, 208 N.J.
544, 565 (2011); State v. Elders, 192 N.J. 224, 243-44 (2007).
At the hearing on the suppression motion, Judge Carroll
heard the testimony of Detective Frazer, who stated he decided
to enter defendant's house without a warrant to search for any
injured or incapacitated persons. Detective Frazer and the
police entered the house at about 11:30 p.m. and searched the
premises, exiting at 11:47 p.m. While they did not find any
injured persons, they did observe a handgun and knives, which
led Detective Frazer to seek a search warrant. Detective Frazer
did not receive information that defendant had been admitted to
a nearby hospital, several hours earlier, until about 12:15
a.m., on July 5, 2009.
Following the hearing, Judge Carroll issued a written
decision denying defendant's suppression motion, concluding the
warrantless search was justified under the "emergency aid
doctrine exception" to the constitutional warrant requirement.
"The emergency aid doctrine is derived from the commonsense
understanding that exigent circumstances may require public
safety officials, such as the police, firefighters, or
paramedics, to enter a dwelling without a warrant for the
purpose of protecting or preserving life, or preventing serious
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injury." State v. Frankel, 179 N.J. 586, 598, cert. denied, 543
U.S. 876, 125 S. Ct. 108, 160 L. Ed. 2d 128 (2004).
At the time that Judge Carroll decided defendant's
suppression motion, New Jersey courts employed a
three-prong test to determine whether a
warrantless search by a public safety
official is justified under the emergency
aid doctrine. Under that test, the public
safety official must have an objectively
reasonable basis to believe that an
emergency requires that he [or she] provide
immediate assistance to protect or preserve
life, or prevent serious injury; his [or
her] primary motivation for entry into the
home must be to render assistance, not to
find and seize evidence; and there must be a
reasonable nexus between the emergency and
the area or places to be searched.
[Id. at 600 (footnote omitted) (internal
citations omitted).]
Subsequently, in State v. Edmonds, 211 N.J. 117, 132 (2012), the
New Jersey Supreme Court eliminated the second part of the test
(the "subjective-motivation factor"), in order to "align our
jurisprudence with federal law."
Applying the three-part Frankel test, Judge Carroll
determined that the blood trail, the amount of blood observed,
the neighbor's report of defendant's return to his house with a
bleeding hand wound, the lack of response to door-knocking and
telephone calls, and the lack of information from nearby
hospitals, gave Detective Frazer an "objectively reasonable
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basis . . . to believe that immediate assistance was
necessary[,]" thus satisfying the first part of the test.
According to the judge, the second part was satisfied by
Detective Frazer's testimony that his motivation to conduct the
warrantless search was the large quantity of spilled blood,
which suggested that an injured person could be in the house.
Last, the judge determined that the limited nature of the
seventeen-minute police search of the house led him to conclude
that there was a reasonable nexus between the indicated
emergency and the scope of the search, thus meeting the third
part of the test.
We reject defendant's argument that the warrantless search
was improper because the police waited almost two hours before
entering the house, thus negating the "emergency" basis for the
warrant exception. As Judge Carroll noted the police delayed
entering the house because they were
contacting local hospitals to ascertain
whether the defendant had been
admitted . . . [G]iven the fluid and on-
going nature of the investigation up to that
point, the [c]ourt does not consider the
lapse in time in developing that information
to be fatal to the [police's] determination
to enter the home to seek out any person who
might be in need of assistance.
Also, more time was required in order for Detective Frazer
to assemble police officers to conduct the search and to have
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the officers "suited up with their tactical gear," such as
bullet-resistant vests, helmets, and shields. Such gear was
deemed necessary because of the nature of the underlying
offense, a knifing.
Accordingly, we conclude the purported delay by police in
entering the house pursuant to the emergency aid doctrine was
explained by the difficulty in obtaining hospital information
and by the mechanics of the search itself. Defendant is thus
incorrect when he argues that there was no ongoing "emergency"
to support the warrantless entry and search. We affirm the
denial of defendant's suppression, and thus his conviction on
the weapon-possession charges, substantially for the reasons set
forth in Judge Carroll's cogent written opinion.
III.
On the appeal of his conviction for second-degree
aggravated assault and related charges, defendant raises the
following issues:
POINT I: THE TRIAL COURT ERRED IN FAILING
TO SUPPRESS HIGHLY PREJUDICIAL EVIDENCE OF
AN UNRELATED POLICE ENCOUNTER WHICH OCCURRED
THREE MONTHS AFTER THE JULY 4TH INCIDENT.
POINT II: THE TRIAL COURT ABUSED ITS
DISCRETION AND ERRED BY FAILING TO PROPERLY
SANITIZE THE RULE 404(B) OTHER ACTS EVIDENCE
AND BY FAILING TO GIVE AN APPROPRIATE
LIMITING INSTRUCTION REGARDING THE EVIDENCE
OF THE OCTOBER 11, 2009[,] TRAFFIC STOP.
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A. FAILURE TO APPROPRIATELY
SANITIZE THE RULE 404(B) OTHER
ACTS EVIDENCE REGARDING THE
UNRELATED OCTOBER 11, 2009 TRAFFIC
STOP.
B. FAILURE TO GIVE A PROPER
LIMITING INSTRUCTION TO THE JURY
ON HOW THE JURY WAS TO USE THE
EVIDENCE OF [DEFENDANT'S]
DEMEANOR.
POINT III: THE TRIAL COURT ERRED IN
ADMITTING THE TRIAL TESTIMONY OF [J.M.]
REGARDING [DEFENDANT'S] USE OF DEROGATORY
TERMS FOR HISPANICS IN ORDER TO PROVE MOTIVE
FOR THE CRIMES CHARGED.
POINT IV: THE TRIAL COURT ERRED BY RULING
WITHOUT ADEQUATE BASIS THAT DETECTIVE FRAZER
COULD REMAIN IN THE COURTROOM AND OBSERVE
THE TESTIMONY OF EVERY OTHER STATE WITNESS
PRIOR TO HIS OWN TESTIMONY.
POINT V. THE TRIAL COURT ABUSED ITS
DISCRETION BY DENYING DEFENDANT'S MOTION TO
COMPEL THE STATE TO DISCLOSE CRIMINAL CASE
HISTORIES OF THE STATE'S WITNESSES.
POINT VI: THE WARRANTLESS SEARCH OF
DEFENDANT'S HOME WAS IN VIOLATION OF
DEFENDANT'S CONSTITUTIONAL RIGHTS AND THE
TRIAL COURT ERRED IN FAILING TO SUPPRESS ALL
FRUITS OF THAT SEARCH.
POINT VII: THE TRIAL COURT ERRED BY FAILING
TO DISMISS THE INDICTMENT WHERE DETECTIVE
FRAZER TAINTED THE PROCEEDINGS WITH
UNQUALIFIED MEDICAL EXPERT TESTIMONY AND
IMPROPER COMMENT ON [DEFENDANT'S] INVOCATION
OF HIS RIGHT TO REMAIN SILENT.
POINT VIII: THE TRIAL COURT ERRED BY
ADMITTING THE BELT BUCKLE KNIFE INTO
EVIDENCE AND ALLOWING THE STATE'S REBUTTAL
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WITNESS, [L.F.], TO PROVIDE IRRELEVANT,
PREJUDICIAL TESTIMONY.
POINT IX: THE TRIAL COURT ERRED IN FAILING
TO INSTRUCT THE JURY ON SELF-DEFENSE WHEN
THE JURY ASKED FOR DEFINITION OF POSSESSION
REGARDING THE CHARGE OF POSSESSION OF A
WEAPON FOR AN UNLAWFUL PURPOSE.
After careful review, we conclude the trial court
mistakenly exercised its discretion when it admitted the bulk of
the evidence concerning the defendant's encounter with police
three months after the stabbing, without appropriate
"sanitization" or jury instructions. Similar error occurred
relating to the testimony of J.M. Concluding the errors were
clearly capable of producing an unjust result, R. 2:10-2, we
reverse defendant's conviction for aggravated assault, and
related charges, and remand for a new trial.
Because evidence of a defendant's bad conduct on another
occasion "has a 'unique tendency' to prejudice a jury against
the defendant, it must be admitted cautiously." State v.
Gillispie, 208 N.J. 59, 85 (2011) (quoting State v. Reddish, 181
N.J. 553, 608 (2004)). "The underlying danger of admitting
other-crime evidence is that the jury may convict the defendant
because he [or she] is 'a "bad" person in general.'" State v.
Cofield, 127 N.J. 328, 336 (1992) (quoting State v. Gibbons, 105
N.J. 67, 77 (1987)). Evidence Rule 404(b) serves to avoid that
consequence.
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The rule prohibits admission of such evidence to "prove the
disposition of a person in order to show that such person acted
in conformity" with that disposition, but it permits use of such
evidence for other limited purposes — including to establish
motive or intent when "relevant to a material issue in dispute."
N.J.R.E. 404(b). The dispute must be genuine. State v. Darby,
174 N.J. 509, 518 (2002). Thus, "other-crimes evidence should
not be admitted solely to bolster the credibility of a witness
against a defendant." State v. P.S., 202 N.J. 232, 256 (2010).
In Cofield, the Court developed "a rule of general
application in order to avoid the over-use of extrinsic evidence
of other crimes or wrongs[.]" Cofield, supra, 127 N.J. at 338.
That rule sets forth in four prongs the necessary conditions for
admission of bad-act evidence:
1. The evidence of the other crime must be
admissible as relevant to a material issue;
2. It must be similar in kind and reasonably
close in time to the offense charged;
3. The evidence of the other crime must be
clear and convincing; and
4. The probative value of the evidence must
not be outweighed by its apparent prejudice.
[Ibid.]
With respect to the first prong, prior to Cofield the Court
stated that when defendant's motive or intent "is important and
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material, a somewhat wider range of evidence is permitted in
showing such motive or intent than is allowed in the support of
other issues." State v. Rogers, 19 N.J. 218, 228 (1953). The
Court reasoned that "[o]therwise there would often be no means
to reach and disclose the secret design or purpose of the act
charged in which the very gist of the offense may consist."
Ibid. On that ground, the Court stated a broad rule applicable
to show state of mind:
All evidentiary circumstances which are
relevant to or tend to shed light on the
motive or intent of the defendant or which
tend fairly to explain his [or her] actions
are admissible in evidence against him [or
her] although they may have occurred
previous to the commission of the offense.
[Ibid.]
Cofield limited the breadth of that standard by permitting
the use of 404(b) evidence in a case where there is a genuine
dispute about motive or intent. Cofield made it clear that the
State's need for the evidence is a factor important to relevance
under prong one. Cofield, supra, 127 N.J. at 338-39 (noting
that "if identity is not really in issue . . . it would be
improper to justify the use of other-crime evidence on that
basis").
22
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A. Evidence from October 2011 encounter.
On appeal, defendant argues the trial court erred by
failing to suppress, appropriately sanitize, or properly
instruct the jury on the evidence concerning the October 2009
encounter. During the encounter, defendant revealed himself as
a loud, aggressive, and foul-mouthed drunk, who made a single
anti-Hispanic comment referencing J.I.
The trial judge explicitly based the admission of the
encounter evidence on N.J.R.E. 803(b)(1). "N.J.R.E. 803(b)(1),
an exception to the hearsay rule, provides that a statement can
be admitted into evidence if the statement is offered against a
party which is 'the party's own statement, made either in an
individual or in a representative capacity.'" State v. Beckler,
366 N.J. Super. 16, 26 (App. Div.), certif. denied, 180 N.J. 151
(2004).
"Generally, as long as there are no Bruton,3 Miranda,4
privilege or voluntariness problems, and subject to N.J.R.E.
104(c), the State may introduce at a criminal trial any relevant
statement made by a defendant[,]" so long as the statement's
probative value is not substantially outweighed by its
3
Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L.
Ed. 2d 476 (1968).
4
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1603, 16 L. Ed. 2d
694 (1966).
23
A-1423-11T4
prejudicial effect on the defendant under N.J.R.E. 403(a).
State v. Covell, 157 N.J. 554, 572, 575 (1999). "'Relevant
evidence' means evidence having a tendency in reason to prove or
disprove any fact of consequence to the determination of the
action." N.J.R.E. 401. "The true test [for relevance] is the
logical connection between the proffered evidence and a fact in
issue, i.e., whether the thing sought to be established is more
logical with the evidence than without it." State v. Hutchins,
241 N.J. Super. 353, 358 (App. Div. 1990).
Even though it was made more than three months after the
stabbing, defendant's single anti-Hispanic comment during the
encounter was plainly relevant both to show defendant's anti-
Hispanic motive for stabbing J.I. and to counter defendant's
asserted claim of self-defense. In his comment, defendant
referred to J.I. as "some little Spick" and denied stabbing him,
claiming to have been somewhere else. Defendant's comment was
relevant because its admission into evidence made it more
logical to conclude both that defendant had an anti-Hispanic
motive for stabbing J.I. and that his subsequent claim of self-
defense was suspect.
Indeed, the State's declared purpose in presenting the
evidence of the October 2009 encounter was to show defendant's
anti-Hispanic motive for attacking J.I. However, applying
24
A-1423-11T4
Hutchins, the question concerning relevance was whether
remaining material on the recording made it "more logical" than
not that defendant had an anti-Hispanic motive when he stabbed
J.I. See ibid. Analysis of the balance of the evidence from
the October 2009 encounter fails to show a "logical connection"
between the remaining material and J.I.'s stabbing to make the
material relevant to show defendant's motive. See ibid.
Accordingly, none of the other statements made by defendant, nor
the statements made by police, should have been presented to the
jury. In order to show defendant's alleged motive, the jury
could have been apprised of his single anti-Hispanic comment
without any reference to his drunk and disorderly conduct, his
accusations of police vandalism and theft, his adult videos, or
his possession of firearms and willingness to use them against
police.
Under N.J.R.E. 403(a), evidence is not admissible under
N.J.R.E. 803(b)(1) if its probative value is substantially
outweighed by the risk of undue prejudice or confusion of the
issues. Covell, supra, 157 N.J. at 571-75. Defendant's single
anti-Hispanic comment on the recording is more probative than
prejudicial because his voluntary statement explicitly dealt
with J.I. and the stabbing and indicated a motive for the
stabbing; however, we conclude the balance of the evidence from
25
A-1423-11T4
the October 2009 encounter lacked any significant probative
value and had a clear capacity to unduly prejudice defendant and
to confuse the jury. Accordingly, the remaining material on the
recording should have been excluded under N.J.R.E. 403(a).
Defendant suffered a manifest denial of justice when the trial
court mistakenly exercised its discretion by not excluding it.
The critical error occurred when the trial court failed to
apply N.J.R.E. 404(b) in addressing the encounter evidence. On
June 8, 2011, approximately two weeks before the start of
defendant's trial, the Supreme Court issued its decision in
State v. Rose, 206 N.J. 141 (2011), stating that
[i]n readdressing the other bad acts
categories of res gestae evidence, we use
this opportunity to direct trial courts to
make the Rules of Evidence the touchstone
for the analysis of all such evidence.
Whenever the admissibility of uncharged bad
act evidence is implicated, a Rule 404(b)
analysis must be undertaken. The threshold
determination under Rule 404(b) is whether
the evidence relates to "other crimes," and
thus is subject to continued analysis under
Rule 404(b), or whether it is evidence
intrinsic to the charged crime, and thus
need only satisfy the evidence rules
relating to relevancy, most importantly Rule
403.
Although Rule 404(b) is often described
as one of exclusion, it focuses on a
distinct, worrisome category of evidence
that, if presented, is only admissible for
limited purposes, and the jury must be
informed both as to how the evidence may,
and may not, be used. The Rule provides an
26
A-1423-11T4
analytical framework through which all
potential "other crimes, wrongs, or acts"
evidence should be sifted. Hence Rule
404(b) shall be the default starting point
for analysis of uncharged bad acts that in
the past has been also known as res gestae.
[Rose, supra, 206 N.J. at 179-80.]
Restated, the Rose Court noted that, from that point in
time going forward, evidence involving other bad acts not
charged in a current prosecution, but sought to be admitted in
that prosecution, must be considered under N.J.R.E. 404(b). Id.
at 182. Accordingly, because other uncharged bad acts
(defendant's anti-Hispanic comment, his drunken disorderly
conduct, etc.) were part of the encounter evidence, the Rose
holding applied to defendant's case. Although the record
includes discussion of the Rose decision, the trial court failed
to apply N.J.R.E. 404(b) when considering whether to admit the
encounter evidence.
N.J.R.E. 404(b) governs the admissibility of evidence
involving other crimes, wrongs, or acts, stating that such
evidence is inadmissible
to prove the disposition of a person in
order to show that such person acted in
conformity therewith. Such evidence may be
admitted for other purposes, such as proof
of motive, opportunity, intent, preparation,
plan, knowledge, identity or absence of
mistake or accident when such matters are
relevant to a material issue in dispute.
27
A-1423-11T4
According to Rose, the "threshold determination" under N.J.R.E.
404(b) is whether the other-crime/bad-act evidence is actually
evidence concerning other crimes or bad acts or whether it is
evidence intrinsic to the charged crime. Rose, supra, 206 N.J.
at 179. If it is intrinsic evidence, then N.J.R.E. 404(b) does
not apply because the evidence does not involve some other
crime, but instead pertains to the charged crime. Ibid.
The Rose Court referred to the Third Circuit's decision in
United States v. Green, 617 F.3d 233 (3rd Cir.), cert. denied,
562 U.S. ___, 131 S. Ct. 363, 178 L. Ed. 2d 234 (2010), as a
"workable, narrow description of what makes uncharged acts
intrinsic evidence of the charged crime, and therefore not
subject to Rule 404(b)." Rose, supra, 206 N.J. at 180. The
Court agreed with the reasoning in Green, stating:
"we . . . reserve the 'intrinsic' label for
two narrow categories of evidence. First,
evidence is intrinsic if it 'directly
proves' the charged offense. This gives
effect to Rule 404(b)'s applicability only
to evidence of 'other crimes, wrongs, or
acts.' If uncharged misconduct directly
proves the charged offense, it is not
evidence of some 'other' crime. Second,
'uncharged acts performed contemporaneously
with the charged crime may be termed
intrinsic if they facilitate the commission
of the charged crime.' But all else must be
analyzed under Rule 404(b)."
[Rose, supra, 206 N.J. at 180 (quoting
Green, supra, 617 F.3d at 248-49 (internal
citations omitted)).]
28
A-1423-11T4
Here, the October 2011 encounter occurred three months
after the stabbing, so the encounter evidence does not fall into
the second category of intrinsic evidence consisting of
uncharged acts performed contemporaneously with the charged
crime. However, defendant's anti-Hispanic comment falls into
the first category of intrinsic evidence that directly proves
the charged crime, as it presents a possible motive for the
stabbing.
Also falling into the first category of intrinsic evidence
that directly proves the charged crime was defendant's comment
denying he stabbed J.I. and denying he was at the stabbing
scene. Those denials are seriously undermined by and at odds
with his later claim of self-defense, thus, tending to prove the
charged offense. Accordingly, under the rationale in Rose, the
part of the encounter evidence involving defendant's anti-
Hispanic comment represents intrinsic evidence to which N.J.R.E.
404(b)'s exclusion does not apply.
In contrast, defendant's remaining words and conduct from
the October 2009 encounter provide little, if any, probative
evidence of the charged stabbing offense. Consequently, under
Rose, the non-intrinsic evidence showing defendant's loud and
drunken disorderly conduct, his accusations of police theft and
vandalism, his possession of adult videos, and the police
29
A-1423-11T4
recognition of his potential use of weapons against them should
have been "sifted" through the "analytical framework" of
N.J.R.E. 404(b) to determine its admissibility. Rose, supra,
206 N.J. at 180. No such analysis occurred.
Applying Cofield's four-prong test to the material that is
unrelated to the anti-Hispanic comment appearing on the
recording, it is plain that the balance of the material fails to
satisfy the test's first prong. As we noted in discussing
N.J.R.E. 803(b)(1), the remaining material on the recording had
nothing to do with motive.
The second prong of the Cofield test addresses the
similarity and temporality of the disputed evidence; it is not
"universally required" that it be applied in all cases. Rose,
supra, 206 N.J. at 163. The remaining material on the recording
does not involve any similar anti-Hispanic verbiage or
references to stabbings, and the encounter occurred more than
three months after the stabbing. The remaining material on the
recording does not satisfy the second prong of Cofield.
The third prong of the Cofield test requires the remaining
material evidence be clear and convincing. Defendant's
vociferous statements on the recording clearly satisfied this
prong.
30
A-1423-11T4
"The fourth prong of the Cofield test is typically
considered the most difficult to overcome." Rose, supra, 206
N.J. at 160. This is so because, unlike N.J.R.E. 403, which
provides that relevant evidence is admissible unless its
probative value is substantially outweighed by the risk of undue
prejudice, the fourth prong only requires that the "probative
value of the evidence must not be outweighed by its apparent
prejudice." Rose, supra, 206 N.J. at 160-61. Also, "'[i]f
other less prejudicial evidence may be presented to establish
the same issue, the balance in the weighing process [under the
fourth prong] will tip in favor of exclusion.'" Id. at 161
(quoting State v. Barden, 195 N.J. 375, 392 (2008)).
As noted, the remaining material on the recording had no
probative value or relevance to show defendant's alleged anti-
Hispanic motive in stabbing J.I. Balanced against that minimal
probative value and questionable relevance to the other issues
in the case is the very real prejudice to defendant when the
jury viewed and heard the remaining material depicting him as a
drunken and disorderly person who might shoot police officers,
while he complained about stolen and damaged personal property,
including his adult videos.
Moreover, it was unnecessary to present the prejudicial and
irrelevant remainder material in order to show defendant's
31
A-1423-11T4
alleged anti-Hispanic motive. Instead, such proof of motive was
readily available in "other less prejudicial" but plainly
relevant evidence. Barden, supra, 195 N.J. at 392. That
evidence was defendant's single anti-Hispanic comment, which
could have been presented to the jury without the remaining
material.
"[I]n order to minimize 'the inherent prejudice in the
admission of other-crimes evidence, our courts require the trial
court to sanitize the evidence when appropriate.'" Rose, supra,
206 N.J. at 161 (quoting Barden, supra, 195 N.J. at 390).
"[W]here the other-crimes evidence is otherwise admissible but
involves inflammatory and other unduly prejudicial facts, the
judge is obliged to require the evidence to be sanitized to the
extent necessary to accommodate both the State's right to
establish a fact in issue and the defendant's right to a fair
trial." State v. Collier, 316 N.J. Super. 181, 185 (App. Div.
1998), aff'd o.b., 162 N.J. 27 (1999).
Thus, when admitting N.J.R.E. 404(b) evidence, the trial
court is obliged to "limit the scope of that evidence to those
facts necessary to prove the proposition for which it is
offered." Ibid. That is, the other-crime/bad-acts evidence
must be sanitized so that only those facts are admitted that are
reasonably necessary to advance the probative purpose for which
32
A-1423-11T4
the evidence is proffered. State v. Fortin, 318 N.J. Super.
577, 598 (App. Div. 1999), aff'd, 162 N.J. 517 (2000). Where
unnecessary and prejudicial facts are presented that do not
advance that probative purpose, the fourth prong of the Cofield
test may be deemed to have been violated. Gillispie, 208 N.J.
at 89-92.
Here, the trial court declined defendant's repeated
requests to effectively sanitize the October 2011 encounter
evidence by admitting only the evidence involving defendant's
anti-Hispanic comment. In doing so, the court failed to
sanitize the encounter evidence so as to limit it to those facts
necessary to show defendant's alleged anti-Hispanic motive for
stabbing J.I., which was the State's declared purpose for
seeking to admit the encounter evidence in the first place.
As a result, the fourth prong of the Cofield test was not
satisfied because the clear prejudice to defendant from
admitting the remaining comments and conduct depicted in the
video-recording plainly outweighed any probative value of that
evidence in showing defendant's alleged anti-Hispanic motive.
In sum, because this evidence failed to satisfy three of the
four prongs of the Cofield test, that evidence should have been
excluded by the trial court.
33
A-1423-11T4
The trial court's error in admitting this evidence was
compounded by the failure to provide proper limiting
instructions to the jury. The Rose Court recognized that
limiting instructions must be provided to
inform the jury of the purposes for which it
may, and for which it may not, consider the
evidence of defendant's uncharged
misconduct, both when the evidence is first
presented and again as part of the final
jury charge. A suitable limiting
instruction "explain[s] precisely the
permitted and prohibited purposes of the
evidence, with sufficient reference to the
factual context of the case to enable the
jury to comprehend and appreciate the fine
distinction to which it is required to
adhere."
[Rose, supra, 206 N.J. at 161 (quoting
Barden, supra, 195 N.J. at 390 (citation and
internal quotation marks omitted)).
Here, the trial court issued limiting instructions, both
when the video-recording was played, and as part of the jury
instructions. The instructions cautioned the jurors that the
encounter evidence, all of it, was "introduced only for a
specific narrow purpose;" that is, "it is offered by the [S]tate
to establish [defendant's] alleged motive in attacking [J.I.]"
The problem with this instruction is that the only part of the
encounter evidence that patently involved defendant's possible
motive for stabbing J.I. was defendant's anti-Hispanic comment
that was directed at J.I.
34
A-1423-11T4
Thus, the jury was not specifically instructed to disregard
the police threat to arrest defendant for drunken and disorderly
conduct, defendant's accusation of police theft and vandalism,
and his possession of adult videos against him as evidence that
he is a "bad" person who was likely to have committed the crimes
charged. While the jury was instructed to disregard Officer's
Zuzeck's testimony that defendant was known to have weapons, it
was not specifically instructed on the use that it could make of
another officer's statement that Officer Zuzeck should take
cover so as to preclude defendant from having a clear shot at
her. Defendant may have been prejudiced by the jury's unguided
use of such evidence, which revealed a concern by police for
their safety. Because the limiting instructions failed to
address the bulk of the material put before the jury of the
October 2011 encounter, they exacerbated the harm that resulted.
In conclusion, the trial court erred when it addressed the
encounter evidence pursuant to N.J.R.E. 803(b)(1). While the
evidence involving defendant's anti-Hispanic comment was
otherwise admissible, the trial court should have applied the
analytical framework of N.J.R.E. 404(b) to the remaining
encounter evidence, as required by Rose. Because the trial
court did not follow the Rose rationale when it admitted the
35
A-1423-11T4
encounter evidence, it made a clear error of judgment and abused
its discretion in doing so.
We further conclude the evidence against defendant
debunking his claim of self-defense was not so overwhelming that
the erroneous admission of the encounter evidence may be deemed
harmless and his convictions therefore affirmed. Gillispie,
supra, 208 N.J. at 93-94 (other-bad-acts evidence erroneously
admitted, but reversal not required because of overwhelming and
undeniable evidence of guilt).
There is limited evidence concerning the exact details of
the stabbing and as a result, the jury may have been misled by
the 2009 encounter evidence to conclude defendant's drunken
behavior three months after the stabbing mirrored his behavior
on the day of the stabbing. Specifically, defendant testified
he injured his hand during the fight with J.I. and his medical
expert opined the wound was a "classic defensive injury" usually
suffered by a person defending against a knife attack. The
State presented testimony from a treating surgeon who described
defendant's wound as a "classic knife wound," but who did not
opine whether the wound had been incurred defensively or
offensively. Additionally, the only evidence concerning
defendant's alleged anti-Hispanic motive for attacking J.I. came
from the encounter evidence and the testimony of J.M. According
36
A-1423-11T4
to J.I., his assailant only yelled twice for him to "shut the
fuck up" prior to the attack; the assailant did not utter any
anti-Hispanic epithets. Therefore, against this limited
evidential record, we conclude erroneously admitting the
unsanitized encounter evidence may have improperly contributed
to defendant's convictions. Accordingly, we do not view the
trial court's error as harmless.
B. Testimony of J.M.
Defendant further argues the trial court erred in admitting
testimony from J.M. Prior to trial, the State moved to present
evidence of defendant's alleged anti-Hispanic motive for
stabbing J.I. from J.M., who stated defendant had made
derogatory verbal references about Hispanic persons in the past
and expressed anti-Hispanic and anti-immigrant opinions. The
court granted the State's motion under the other-crimes/bad-acts
analytical framework of N.J.R.E. 404(b) and applied the four-
prong Cofield test for admissibility. The court reasoned that
such evidence was relevant to prove defendant's motive for
stabbing J.I., that J.M.'s testimony constituted clear and
convincing evidence of that motive, and that the probative value
of the evidence clearly outweighed any prejudice defendant would
suffer as a result of admitting the evidence. Cofield, supra,
127 N.J. at 338.
37
A-1423-11T4
The record does not indicate the trial court issued a
limiting instruction either before or immediately after J.M.'s
testimony, instructing the jury on the use it could make of that
testimony. On the following day, the court issued an
instruction involving J.M., but it did not address the permitted
use of his testimony. Eighteen days after J.M. testified, the
jury viewed and heard the recordings of the October 2011
encounter and received the testimony of Officer Zuzeck. At that
point, the trial court issued a limiting instruction addressing
the restricted use that the jury could make of J.M.'s testimony,
Zuzeck's testimony, and the video-recording.
Subsequently, defendant testified and admitted that he used
the word "spic" in referring to Hispanic persons, explaining
that "construction people speak that way." He also explained
that his concern about the "growing Hispanic and illegal
immigration population in [his] neighborhood" was that landlords
had improperly rented single family dwellings to "20 or 30
people," which had negatively affected property values. He
denied ever stating that "Hispanics are pushing the white man
out of the country."
In admitting J.M.'s testimony, the court correctly treated
defendant's comments to J.M. as bad-act evidence governed by
N.J.R.E. 404(b), but incorrectly applied Cofield's four-prong
38
A-1423-11T4
test in determining its admissibility. Under the first prong of
that test, addressing relevancy, the court correctly found
J.M.'s testimony relevant because defendant's statements plainly
showed an anti-Hispanic animus on his part, thus suggesting a
possible motive for J.I.'s stabbing. The court made no explicit
finding under the second prong of the test, however, which
required that J.M.'s bad-conduct evidence had to be similar in
kind and reasonably close in time to the stabbing. Cofield,
supra, 127 N.J. at 338. While this second prong is not
"universally required" in all cases, Rose, supra, 206 N.J. at
163, if it had been addressed, it would have weighed against
admitting J.M.'s testimony, because the record does not indicate
when defendant allegedly made his comments to J.M. If the two
men stopped talking to one another after defendant's lawsuit
against J.M. was arbitrated seven years before trial, J.M.'s
testimony could involve comments made by defendant at least five
years before the stabbing, and possibly much longer. The State
failed to elicit from J.M. any approximate date when the anti-
Hispanic comments were allegedly made. Accordingly, the timing
of those comments remained a matter of speculation, and J.M.'s
testimony did not satisfy the second Cofield prong.
The court appears to have determined that J.M.'s proposed
testimony satisfied the third prong of the Cofield test, which
39
A-1423-11T4
requires that "the evidence of the other crime must be clear and
convincing." Cofield, supra, 127 N.J. at 338. The court did so
by mistakenly leaving it to the jury to "decide whether or not
the statements were made . . . to [J.M.] by the defendant."
When J.M. testified, it was revealed on cross-examination that
he had been sued by defendant in the past. On its face, that
conflict raises a question as to why he was offering his
testimony against defendant at trial. When this past litigation
is combined with the uncertain timing of defendant's alleged
comments to J.M. and with defendant's denial that he made these
comments, we fail to see support for a finding that J.M.'s
testimony constituted clear and convincing evidence.
Unlike the video-recording, which set out irrefutable
evidence of what defendant said, J.M.'s testimony involved
hearsay that was allowed to be conveyed to the jury by a person
who had been sued by defendant. Consequently, the record does
not support a finding that the third prong of the Cofield test
was satisfied.
Under the fourth prong of the Cofield test, the "probative
value of the [other-crime/bad-act] evidence must not be
outweighed by its apparent prejudice." Ibid. As pointed out by
the Rose Court, "[t]hat standard is more exacting than Rule 403,
which provides that relevant evidence is admissible unless its
40
A-1423-11T4
probative value is substantially outweighed by the risk of undue
prejudice." Rose, supra, 206 N.J. at 161. That is, under the
Cofield test's fourth prong, the court is only called upon to
determine if the apparent prejudice that would result from
admitting the disputed evidence merely outweighs, not
substantially outweighs, the probative value of the evidence.
Here, the court did not apply the proper standard under the
fourth prong. Instead, the judge reasoned that the disputed
evidence would be admitted unless its probative value "clearly
is outweighed by the prejudice to the defendant." Thus, the
judge would not exclude J.M.'s testimony unless he found "the
prejudice clearly outweighs the motivational evidence or motive
evidence." While the term "clearly outweighs" is not the same
as the term "substantially outweighs" set out in N.J.R.E. 403,
it is also not the same as the term "outweighs" that is set out
in Cofield's fourth prong. In short, the court did not apply
the correct standard when it made its admissibility
determination under the fourth prong.5
5
We note that defendant's anti-Hispanic statements to J.M. do
not qualify as intrinsic evidence because they did not
"directly" prove the crime charged or "'facilitate the
commission of the charged crime.'" Rose, supra, 206 N.J. at 180
(quoting Green, supra, 617 F.3d at 248-49 (internal citations
omitted)). Thus, the only potential pathway for admission of
this testimony was Rule 404(b), which was unavailable because
the State could not satisfy the Cofield factors.
41
A-1423-11T4
One final problem merits discussion. The trial court
failed to follow the Rose Court's direction requiring a limiting
instruction "to inform the jury of the purposes for which it
may, and for which it may not, consider the evidence of
defendant's uncharged misconduct, both when the evidence is
first presented and again as part of the final jury charge."
Rose, supra, 206 N.J. at 161. Rather, the court issued its
first limiting instruction addressing J.M.'s testimony eighteen
days after J.M. testified. Thus, the jury was not guided on the
use that it could make of that testimony for a period of more
than two weeks. This was error, an error which may have
prejudiced defendant.
We conclude the court mistakenly exercised its discretion
when it admitted J.M.'s testimony as evidence of defendant's
motive under N.J.R.E. 404(b). J.M.'s proposed testimony did not
plainly satisfy the second, third, and fourth prongs of the
controlling Cofield test, and the court failed to give a timely
limiting instruction to the jury when the testimony was
presented. Like the trial court's admission of the balance of
the encounter evidence, J.M.'s testimony had the potential to
unfairly prejudice defendant in the eyes of the jury. Because
we are convinced these errors were not harmless, we conclude
42
A-1423-11T4
that defendant's convictions for aggravated assault and related
charges must be reversed.
We have carefully reviewed defendant's remaining points in
light of the applicable law and facts, and conclude they lack
sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(2). In regard to A-0195-12, defendant's judgment of
conviction on the weapon-possession charges, we affirm but
remand for the entry of an amended judgment of conviction to
correct the amount of jail credits. In regard to A-1423-11,
defendant's conviction for aggravated assault and all related
charges, we reverse and remand for a new trial.
Affirmed and remanded, in part, and reversed and remanded,
in part.
43
A-1423-11T4