Citation Numbers： 338 N.J. Super. 227, 768 A.2d 795, 2001 N.J. Super. LEXIS 106
Judges： Lefelt, Wefing
Filed Date： 3/16/2001
Status： Precedential
Modified Date： 11/11/2024
I concur in the affirmance of defendant’s convictions and sentence. I write separately because of my disquiet with the concept of res gestae, the basis utilized by the trial court and my colleagues to admit evidence that defendant’s assaults upon his niece began at a time not encompassed within the indictment.
The evidential principle denominated res gestae has been the subject of much criticism. Commentators have repeatedly urged that it be abandoned because of its vagueness and imprecision. McCormick on Evidence § 268 (Strong ed., 4th ed. 1992); 2 Wigmore on Evidence § 218 (Tillers rev. 1983). Courts continue to cling to it, however. If we are not ready to abandon the term, we should at least adhere to its traditional requirement of events closely related in time. State v. Martini, 131 N.J. 176, 619 A.2d 1208 (1993), cert. denied, 516 U.S. 875, 116 S.Ct. 203, 133 L.Ed.2d 137 (1995). Here, the gap of several years between the time the victim testified that the abuse began and the time encompassed by the indictment precludes me from considering this evidence under the rubric res gestae.
Courts have, however, admitted evidence of other alleged wrongdoing by a defendant “where it forms part of a chain of facts so intimately connected that the whole must be heard in order to interpret its several parts.” State v. Whitley, 17 Ohio App.2d 159, 245 N.E.2d 232, 235 (1969).
According to the victim, defendant’s assaults began when he was under the age of eighteen and subject to the jurisdiction of the juvenile court. The State was entitled to present her testimony in connection with the first two counts as she said it occurred, “a single chain of facts”. Absent this evidence, the jury would