State v. Rose, 206 N.J. 141 (2011)

Facts:

• Defendant Zarik Rose was incarcerated in 1995 on charges relating to the attempted murder of Charles Mosely.

• While awaiting trial, Defendant allegedly told one of the State’s witnesses against him that he wanted to have Mosely “whacked,” and that Defendant solicited the witness to kill Mosely.

• At trial, the State moved to admit Defendant’s comment. The trial court found some of the evidence admissible as “res gestae.”

• During the trial, the court provided instructions to guide the jury’s use of that evidence.

• On appeal to the Supreme Court, Defendant argued that all evidence relating to his incarceration on attempted murder charges was improperly admitted at trial.

Analysis:

• The underlying danger of admitting other-crime evidence is that the jury may convict the defendant because he is a bad person in general. The prosecution may not introduce evidence of other criminal acts of the accused unless the evidence is introduced for some purpose other than to suggest that because the defendant is a person of criminal character, it is more probable that he committed the crime for which he is on trial.

• Rule 404(b) seeks to strike a balance between the prejudice to a defendant that is inherent in other-crimes evidence and the recognition that the evidence may be highly relevant to prove a defendant’s guilt of the crime charged. Evidence of uncharged misconduct would be inadmissible if offered solely to prove the defendant’s criminal disposition, but if that misconduct evidence is material to a non-propensity purpose such as those listed in Rule 404(b), it may be admissible if its probative value is not outweighed by the risk of prejudice.

• The court relied on State v. Cofield, 127 N.J. 328 (1992). In Cofield, the Court articulated the following four-part test to determine if evidence of uncharged misconduct is admissible at trial:

1. The evidence of the other crime must be admissible as relevant to a material issue;

• the evidence must have a tendency in reason to prove or disprove any fact of consequence to the determination of the action. The evidence must also bear on a material issue in dispute, such as motive, intent, or an element of the charged offense, and so the Court should consider whether the matter was projected by the defense as arguable before trial, raised by the defense at trial, or was one that the defense refused to concede.

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;

• the prosecution must establish that the act of uncharged misconduct which it seeks to introduce into evidence actually happened by “clear and convincing” evidence.

4. The probative value of the evidence must not be outweighed by its apparent prejudice.

• It is typically considered the most difficult to overcome. Because of the damaging nature of such evidence, the trial court must engage in a careful and pragmatic evaluation of the evidence to determine whether the probative worth of the evidence is outweighed by its potential for undue prejudice. That standard is more exacting than Rule 403, which provides that relevant evidence is admissible unless its probative value is substantially outweighed by the risk of undue prejudice. And, “[i]f other less prejudicial evidence may be presented to establish the same issue, the balance in the weighing process will tip in favor of exclusion.”

• The court stated 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.

Holding:

• The Supreme Court affirmed Defendant’s conviction, and held that the trial court appropriately instructed the jury on use of the admitted statements.

• The Supreme Court held that a straightforward application of Rule 404(b) lead to the conclusion that defendant suffered no error due to the admission of the disputed evidence about his former indictment (and incarceration pending trial) on charges that he had attempted the murder of the victim in his present trial.

• The court ended the practice of using “res gestae” as an explanation for the admission of evidence: “[e]vidence of uncharged misconduct that is not intrinsic evidence of the crime is inadmissible unless proffered for a proper purpose. …

• The Court directed trial courts to make the Rules of Evidence the touchstone for the analysis of all bad acts categories of res gestae evidence, and disapproves further use of res gestae to support evidential rulings.

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