DocketNumber: A-39 September Term 2017; 080274
Citation Numbers: 197 A.3d 1136, 236 N.J. 71
Judges: Solomon
Filed Date: 11/28/2018
Status: Precedential
Modified Date: 10/15/2022
**77This case comes to us on interlocutory appeal from the trial court's determination, affirmed by the Appellate Division, that the State could not present evidence of defendant Carlos B. Green's two prior driving while intoxicated (DWI) convictions in this current prosecution for vehicular homicide while intoxicated. The State sought to introduce the prior convictions as state of mind evidence -- evidence that defendant acted recklessly by "consciously disregard[ing the] substantial and unjustifiable risk" of causing harm by driving while intoxicated. See N.J.S.A. 2C:2-2(b)(3). We conclude that the trial court did not abuse its discretion in excluding defendant's two prior DWI convictions here. Although we impose no per se exclusion of prior DWI convictions in a prosecution for vehicular homicide while intoxicated, this case does not present the rare circumstances that would render their admission appropriate.
I.
On a late December night in 2014, defendant Carlos B. Green (Green) struck and killed Billy Ray Dudley (Dudley), who was lying in the road. A toxicology lab determined Green's blood alcohol concentration (BAC) to be 0.210% at the time of the accident. Pursuant to N.J.S.A. 39:4-50, a person who operates a motor vehicle with a BAC of 0.08% or more is guilty of driving while intoxicated.
**78Green had two prior DWI convictions in 1998 and 2009, for which his sentences each required completion of an educational course at the Intoxicated Driving Resource Center (IDRC). The IDRC conducts a post-conviction intervention program for those convicted of an alcohol or drug-related traffic offense. The program is designed to educate participants about alcohol and its effects on motor vehicle safety. At the IDRC, participants attend a series of educational *1140sessions and discussions in order to successfully complete the course.
As a result of Dudley's death, Green was charged in a grand jury indictment with first-degree vehicular homicide while intoxicated and within 1,000 feet of a school, contrary to N.J.S.A. 2C:11-5(b)(3)(a). Before trial, the State moved in limine to introduce Green's two prior DWI convictions, which the State argued were relevant to the issue of recklessness. According to the State, the prior convictions demonstrated that Green "had knowledge of the substantial and unjustifiable risks associated with driving while intoxicated."
The trial court denied the State's motion. Applying the factors established by this Court in State v. Cofield,
The Appellate Division granted the State's motion for leave to file an interlocutory appeal. On appeal, the State primarily relied on State v. Bakka,
In response, Green argued that the motion judge correctly applied the Cofield factors to exclude his prior convictions, which were too remote and unduly prejudicial. Green stressed that other than his intoxication, there was no indication that he was operating his vehicle recklessly -- Green was not swerving or speeding, he had his lights on, and Dudley was lying in the roadway in the dark. Finally, Green contended that the State could prove his intoxication with less inflammatory evidence, such as the toxicology results and police testimony.
The Appellate Division affirmed the trial court, citing this Court's acknowledgment that "[d]riving while intoxicated may alone satisfy the recklessness required by the death by auto statute." State v. Green,
The State sought leave to appeal, which we granted.
*1141II.
The parties' arguments here mirror those raised in the Appellate Division. In addition, the State urges this Court to join those **80jurisdictions that admit evidence of prior bad acts for the purpose of establishing knowledge, malice, or another state of mind. The State argues that this Court should therefore hold that Green's prior DWI convictions are admissible for the limited purpose of establishing his knowledge and recklessness. The State also contends that there is no reason to believe that the jury would use this evidence for an improper purpose, particularly because trial courts can alleviate any prejudicial effect by giving a limiting instruction.
The Attorney General's arguments largely echo the arguments set forth by the State. Additionally, the Attorney General asks this Court to revisit Cofield's Rule 404(b) analysis, arguing that the Cofield Court intended to "simply incorporate" Rule 403 into the other-crimes test. According to the Attorney General, the fourth prong has "somehow morphed" into a more stringent Rule 404(b) analysis. The Attorney General thus urges this Court to reevaluate the "dramatic shifting" of Cofield's fourth prong, particularly because this shift occurred "without the issue being litigated."
Green asks this Court to "reject the State's invitation to follow other jurisdictions with less-protective rules of evidence." Green also argues that the State's reliance on Bakka is misplaced, as the defendant in Bakka drove with a suspended license and was charged with aggravated manslaughter, which requires proof of a higher level of recklessness than does vehicular homicide. Green further contends that even if Bakka is applicable, the trial court and Appellate Division decisions were entirely consistent with Bakka's mandate to apply the Cofield factors on a case-by-case basis.
III.
A.
We begin our discussion by acknowledging that the admissibility of evidence at trial is left to "the sound discretion of **81the trial court." State v. Willis,
B.
This appeal focuses on the admission of other-crimes evidence -- specifically, Green's two prior DWI convictions and evidence of his subsequent participation in IDRC courses. Rule 404(b) bars "evidence of other crimes, wrongs, or acts" when used "to show that [a] person acted in conformity therewith." N.J.R.E. 404(b). However, evidence of prior "crimes, wrongs, or acts" may be used to show *1142"intent, ... knowledge, ... or absence of mistake or accident."
In Cofield, we adopted a four-part test to determine the admissibility of other-crimes evidence:
**82(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.
[127 N.J. at 338 ,605 A.2d 230 .]
Trial courts must apply that test on a case-by-case basis "in order to avoid the over-use of extrinsic evidence of other crimes or wrongs."
1.
To satisfy the first prong of the Cofield test, the "proffered evidence must be 'relevant to a material issue genuinely in dispute.' " State v. Gillispie,
Here, as a result of his DWI convictions, Green was required to take courses at the IDRC, where he learned of the dangers of driving while intoxicated. As such, the proffered evidence supports the State's contention that Green knew of and consciously disregarded the risks of driving while intoxicated. Thus, Green's previous DWI convictions and compulsory IDRC
**83participation were relevant to a material issue at trial, namely Green's recklessness.
2.
The second prong requires that the "other acts" be "similar in kind and reasonably close in time to the offense charged." Cofield,
*1143Williams,
3.
Under the third Cofield prong, the prosecution must establish that the other crime "actually happened by 'clear and convincing' evidence." Rose,
4.
"Because of the damaging nature of [other crimes] evidence," the fourth Cofield prong -- "[t]he probative value of the evidence must not be outweighed by its apparent prejudice,"
To reduce "the inherent prejudice in the admission of other-crimes evidence," trial courts are required "to sanitize the evidence when appropriate," Rose,
**85Reddish,
The crux of this case is Cofield's fourth prong. Green's two prior DWI convictions *1144and subsequent IDRC participation are probative of his mental state when he committed the charged vehicular homicide. Specifically, Green had twice been through the criminal justice process and therefore was unquestionably aware that driving while intoxicated is an impermissible and punishable offense. As a result of his convictions, Green was sentenced to attend courses at the IDRC where he learned of the risks and dangers of driving while intoxicated. Green's IDRC participation likely gave him a heightened awareness of those risks and dangers. Therefore, the other-crimes evidence tends to show that Green was aware of, but consciously disregarded, the risks of driving while intoxicated, a mental state that is a material element of vehicular homicide.
Nevertheless, other considerations diminish the probative value of the evidence at issue. For example, Green's prior DWI convictions were from 1998 and 2009 -- many years before this fatal accident. The lapse of time has an eroding effect on the instructive impact of the DWI convictions and ensuing attendance at the IDRC.
Turning to prejudice, admission of the prior DWI convictions suggests to the jury that Green acted in conformity with his prior behavior. The circumstances surrounding this vehicular homicide prosecution indicate that, although intoxicated, Green was not speeding, swerving, or otherwise committing any traffic infractions. Therefore, the motion court could reasonably conclude that admission of Green's prior DWI convictions would confuse or risk misleading the jury, causing it to convict Green based solely on his propensity to drive while intoxicated.
The potential for jury confusion is especially high when, as here, proof of causation is tenuous. While Green was indeed intoxicated on the night of the accident, Dudley was lying in the middle of a **86dark roadway when he was struck by Green's vehicle. Even with the most carefully crafted limiting instruction, admission of Green's two prior DWI convictions could result in the jury's conflating recklessness and causation.
Additionally, the State possesses a less inflammatory source of probative evidence -- Green's BAC of 0.210% at the time of the incident. "Proof that the defendant was driving while intoxicated ... shall give rise to an inference that the defendant was driving recklessly." N.J.S.A. 2C:11-5(a). In the drunk driving context, "[i]ntoxication in combination with other evidence or standing alone may satisfy the recklessness element." State v. Stanton,
In light of the circumstances present in this case, the risk that a jury would convict Green based on his propensity to drive while intoxicated outweighs the probative value of his more than five-year-old DWI convictions. Therefore, balancing the probative value against the prejudice of admitting defendant's prior DWI convictions and IDRC program participation under Rule 404(b) favors exclusion of the evidence.
IV.
Our independent analysis leads to the conclusion that Green's prior DWI convictions are inadmissible under Rule 404(b). In that respect, we affirm the judgment of the Appellate Division.
We acknowledge that the State, relying on Bakka, urges a different conclusion. In *1145Bakka, the defendant crashed his girlfriend's car while intoxicated, killing a passenger. 176 N.J. at 539,
This Court agreed with the Appellate Division that the "mere fact that a defendant is an unlicensed driver does not by itself suggest an awareness of risk."
Although we found error, we acknowledged that "the reasons for that revocation may be probative of recklessness when defendant again engages in unsafe conduct identical or similar to that which resulted in the revocation."
Likewise, we hold here that the trial court and Appellate Division were correct to exclude defendant's prior DWI convictions. However, as we did in the circumstances of Bakka, we recognize that there may be a situation in which prior DWI convictions of a defendant charged with vehicular homicide while intoxicated would be admissible under Rule 404(b) as evidence of recklessness, despite the statutory inference of recklessness arising from evidence that the defendant drove with a BAC over 0.08%. The probative value of prior DWI convictions close in time to the incident charged may, only in the rare case, outweigh the potential for undue prejudice. We therefore encourage trial judges to perform a thorough Cofield analysis and not presume a per se exclusion of such evidence. The admissibility of Rule 404(b) evidence must be considered on a case-by-case basis by analyzing the **88evidence proffered and the circumstances of the case. See Bakka,
V.
For the reasons set forth above, we affirm the judgment of the Appellate Division.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA, and TIMPONE join in JUSTICE SOLOMON'S opinion.
The State and the Attorney General cite to authority from other federal and state jurisdictions and ask us to adopt a less stringent standard for analyzing Cofield's fourth prong. We decline the invitation to alter New Jersey's well-settled jurisprudence in this regard.
Brunson modified this Court's decision in State v. Sands,