Opinion
DOCKET NO. A-4966-13T2
02-02-2015
STATE OF NEW JERSEY, Plaintiff-Appellant/Cross-Respondent, v. KERI J. BARRY, Defendant-Respondent/Cross-Appellant.
Keith E. Hoffman, Senior Assistant Prosecutor, argued the cause for appellant/cross-respondent (Camelia M. Valdes, Passaic County Prosecutor, attorney; Mr. Hoffman, of counsel and on the brief). John J. Bruno, Jr., argued the cause for respondent/cross-appellant (Bruno and Ferraro, attorneys; Mr. Bruno, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes, Ashrafi, and O'Connor. On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 11-04-0406. Keith E. Hoffman, Senior Assistant Prosecutor, argued the cause for appellant/cross-respondent (Camelia M. Valdes, Passaic County Prosecutor, attorney; Mr. Hoffman, of counsel and on the brief). John J. Bruno, Jr., argued the cause for respondent/cross-appellant (Bruno and Ferraro, attorneys; Mr. Bruno, of counsel and on the brief). PER CURIAM
On December 11, 2009, while alone in her family's home, defendant Keri J. Barry gave birth on a bathroom floor. Four days later, the police found the baby's body wrapped in towels and in a clear plastic bag inside a garbage bag. The State charged defendant with murder and other offenses. Defendant contends the baby was not born alive.
By our leave, the State appeals from a pretrial order of the trial court permitting in evidence several electronic communications defendant sent to a college friend in 2012, more than two years after the birth and long after defendant was indicted. The State contends the electronic messages are inadmissible hearsay if offered in evidence by defendant.
Defendant cross-appeals from the admission of electronic conversations between defendant and the same friend that occurred in 2009 during the pregnancy. Defendant contends the 2009 electronic "chats" are inadmissible because they are evidence of other wrongs and bad acts of defendant, and also that undue prejudice from their admission substantially outweighs any probative value they have.
We reverse the trial court's ruling on the State's appeal and affirm its ruling on defendant's cross-appeal.
I.
According to a statement defendant gave to the police after the baby was discovered, no one knew she was pregnant. On December 11, 2009, a sister found her bleeding in a bathtub in her parents' home and family members took her to a hospital. The examining doctor suspected a miscarriage. Defendant denied to the doctor that she had been pregnant. Later, medical tests showed that defendant had carried a pregnancy to full term.
In her statement to the police, defendant also claimed that she only realized she was pregnant about one month before the birth, in November 2009. Defendant stated she was confused and disturbed by what came out of her body in the bathroom. She did not believe it was a live baby, and she wrapped everything in towels and placed it all in a clear plastic bag. She made additional statements to the police that the State will offer in evidence as proof that she was in fact aware that a live baby was born. The State will also offer evidence from an autopsy to prove that the baby was born alive.
A grand jury indicted defendant on charges of first-degree murder, N.J.S.A. 2C:11-3(a)(1) or (2); second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a), N.J.S.A. 9:6-1, and N.J.S.A. 9:6-3; and third-degree hindering apprehension, N.J.S.A. 2C:29-3(b)(1).
On April 10, 2014, the trial court entered an order by which it made rulings on several pretrial motions. Pertinent to these appeals, the court ruled that five exhibits offered by the State that contain electronic conversations of defendant with her friend will be admissible at trial with some specified minor redactions. The State offers these conversations as evidence that defendant lied to health care providers and to the police when she denied knowing that she was pregnant. Further, the State offers the conversations as evidence that defendant was displeased about becoming pregnant and was looking for means to end the pregnancy. The State contends this evidence is relevant to defendant's motive and intent to end the life of a living newborn baby.
On defendant's motion to admit in evidence other electronic communications defendant sent to the same friend in 2012, the court rejected the State's hearsay objection and ruled the 2012 communications are admissible pursuant to N.J.R.E. 106 and "the doctrine of testimonial completeness." The court's order stated that although those communications were "created approximately 2 years after the defendant's arrest, [they are] a continuation of and relate[] back to the contents of" the 2009 electronic conversations. The court ordered that substantial portions of the 2012 messages be redacted but permitted the defense to use the remaining parts at the trial if the State offers the 2009 conversations in evidence.
We granted the State's motion for leave to appeal. Defendant then filed a motion for leave to cross-appeal, which we granted improperly by means of a single-judge order, apparently under the mistaken belief that defendant sought only an extension of time rather than leave to appeal. See R. 2:8-1(c). Despite that procedural irregularity, we will consider the merits of the cross-appeal because the issues are closely related and because defendant has fully briefed the issues.
The State never filed a responding brief to the cross-appeal, as it is required to do. See R. 2:6-4(d).
II.
We will address defendant's cross-appeal first because the admissibility of the 2012 communications is conditioned on the admission of the 2009 communications in the State's case-in-chief. That is to say, if defendant were to prevail on her cross-appeal, the State's appeal would be moot. None of defendant's electronic communications would be admissible without additional foundational evidence, such as if defendant testifies at the trial and contradicts prior statements contained in the communications.
In the first of the 2009 conversations (marked as Exhibit S-117), on April 10, 2009, defendant's friend asked, "Whatever happened to the you know what?" Defendant said she had taken a large dose of birth control pills. The friend said that was "scary" and mentioned a supermarket that might sell an unnamed item. Defendant indicated she did not want to ask people. The State alleges the conversation was about defendant suspecting she was pregnant in April 2009, eight months before the birth, and about purchasing a pregnancy testing kit.
The next electronic conversation offered by the State (S-83) occurred on August 13, 2009. Defendant said the last time she had a menstrual period was before March, and the two women seemed to talk about the cost of an abortion, defendant wanting a miscarriage, her stomach getting bigger but not revealing her pregnancy yet, and a test conducted in March showing that defendant was pregnant. Using slang, defendant wrote, "I'm def preggo."
The 2009 conversations are mostly short, back-and-forth electronic messages full of abbreviations, misspellings, and slang. Our description of the contents is not meant to be either complete or definitive. Nor do we exclude other interpretations.
In the third of the 2009 communications (S-84), dated September 27, 2009, defendant told her friend that she "lost the baby." She spoke of seeing a gynecologist and of a medical procedure because of "problems with the baby." She talked about a boyfriend who was presumably the father of the baby and claimed he accompanied her to the doctor. She said she was "sooo relieved its over . . . " According to the State, this conversation refers to an abortion and falsely claims that defendant already had one.
Also ruled admissible was a December 9, 2009 conversation (S-85), two days before the birth. Defendant talked about having her "tubes tied" and then not being able to have children in the future. Suggesting that she was no longer pregnant at that time, defendant said, "i never wanted kids anyway."
The trial court ruled inadmissible an intervening conversation (S-117) dated October 5, 2009, which was mainly about the boyfriend.
Finally, the court admitted a conversation (S-86) dated December 11, 2009, the date of and apparently minutes before the birth. Defendant and the friend talked briefly about defendant's decision not to have children in the future. Defendant wrote, "i want something permanent . . . . i do not want to everrrrr ever go thru any of this ever again."
The State contends these conversations are admissible because they are not excluded by the hearsay rule, see N.J.R.E. 803(b)(1) (statements by a party-opponent), and they are relevant to defendant's motive and intent to kill the baby. The State argues the conversations demonstrate that defendant did not want to have a baby, never intended to care for one, and was seeking ways to avoid giving birth. The trial court questioned whether proof of those feelings and intentions is probative of an alleged motive to kill the baby. The court ultimately ruled that the conversations are admissible evidence that is relevant to defendant's state of mind at the time of the birth, that is, whether defendant acted purposely or knowingly in allegedly allowing the baby to die.
Although the conversations also contain statements by the friend, those statements are presumably not hearsay because the State is not offering them for the truth of their content, see N.J.R.E. 801(c), or they constitute statements of the friend that are adopted by defendant, see N.J.R.E. 803(b)(2).
Defendant argues the 2009 communications are inadmissible under N.J.R.E. 404(b) and 403. Rule 404(b) bars "evidence of other crimes, wrongs, or acts . . . to prove the disposition of a person in order to show that such person acted in conformity therewith." At the same time, the rule provides that "[s]uch 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." Ibid. Defendant contends the 2009 communications contain evidence of other wrongs or acts by defendant that the jury might view as "reprehensible" conduct, such as taking a high dosage of birth control pills in an effort to miscarry or claiming to have aborted the pregnancy. She contends such topics of conversation are not probative of her state of mind in December 2009 and are also inadmissible because they are unduly prejudicial evidence that will divert the jury from the true issues in the case.
When N.J.R.E. 404(b) applies to the admission of evidence, the court must typically apply the four-part test established in State v. Cofield, 127 N.J. 328, 338 (1992):
1. The evidence of the other crime must be admissible as relevant to a material issue;Over the years, the Supreme Court has adjusted this test as applied to a variety of circumstances and purposes. See State v. Lykes, 192 N.J. 519, 535-37 (2007); State v. Hernandez, 170 N.J. 106, 119-26 (2001).
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.
Most recently in State v. Rose, 206 N.J. 141, 177-79 (2011), the Court distinguished between evidence that must be analyzed as other wrongs or bad acts under N.J.R.E. 404(b) and evidence that is "intrinsic to the charged crime." The latter type of evidence should be analyzed for admissibility under N.J.R.E. 401, 402, and 403, the rules of evidence that apply to relevance and to undue prejudice of otherwise relevant evidence. Rose, supra, 206 N.J. at 177. Such "intrinsic evidence" that "'directly proves' the charged offense" is not subject to the requirements of admission under N.J.R.E. 404(b), although it may be viewed as wrongful conduct in itself. Rose, supra, 206 N.J. at 180 (quoting United States v. Green, 617 F.3d 233, 248 (3d Cir.), cert. denied, 562 U.S. ___, 131 S. Ct. 363, 178 L. Ed. 2d 234 (2010)).
Here, the disputed conversations are not evidence of "other crimes, wrongs or acts," N.J.R.E. 404(b); they are direct evidence relevant to the state of mind elements of the charges on which defendant stands indicted and will be tried. The conversations occurred from eight months to minutes before the birth, but they all arguably demonstrate that defendant was fully aware of her pregnancy, was troubled by it, and did not want to give birth. Defendant's state of mind about the prospect of giving birth is relevant to a potential motive to terminate the pregnancy, and to an alleged intent not to assist the baby to survive a live birth in an isolated bathroom. It shall be for the jury to determine if the conversations in fact are evidence that defendant had a motive to harm the baby or intended to allow a live baby to die.
Alternatively, if some parts of the several disputed conversations are viewed as evidence of other wrongs or bad acts, the trial court considered the Cofield factors, and its conclusion that the evidence is admissible under N.J.R.E. 404(b) is not an abuse of the discretionary authority granted to trial courts to decide that issue. See Rose, supra, 206 N.J. at 157-58; State v. Darby, 174 N.J. 509, 518 (2002); see also State v. Barden, 195 N.J. 375, 391 (2008) (in review of a trial court's N.J.R.E. 404(b) ruling, "[o]nly where there is a clear error of judgment should the trial court's conclusion with respect to that balancing test be disturbed.")
Nor does N.J.R.E. 403 require exclusion of the 2009 communications. A ruling under N.J.R.E. 403 shall be upheld on appeal "unless . . . the trial court palpably abused its discretion, that is, that its finding was so wide [of] the mark that a manifest denial of justice resulted." Lykes, supra, 192 N.J. at 534 (quoting Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999)).
N.J.R.E. 403 states: "Except as otherwise provided by these rules or other law, relevant evidence may be excluded if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence."
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There is no manifest denial of justice in the jury seeing defendant's own words about her pregnancy. Indeed, they are highly relevant to the jury's understanding of what led to the December 11, 2009 birth without the knowledge of family members and without medical assistance. The 2009 electronic communications are relevant to defendant's state of mind and are admissible in evidence.
III.
The trial court mistakenly exercised its discretion, however, in admitting the 2012 communications under the completeness doctrine of N.J.R.E. 106. That evidence rule states "[w]hen a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which in fairness ought to be considered contemporaneously."
In applying the completeness doctrine, we have previously stated: "the opponent, against whom a part of an utterance has been put in, may in his turn complement it by putting in the remainder, in order to secure for the tribunal a complete understanding of the total tenor and effect of the utterance." Alves v. Rosenberg, 400 N.J. Super. 553, 561 (App. Div. 2008) (quoting State v. Lozada, 257 N.J. Super. 260, 270 (App. Div.), certif. denied, 130 N.J. 595 (1992)).
We also explained in State v. Gomez, 246 N.J. Super. 209, 217 (App. Div. 1991): "The rule provides that where a part of a conversation between a witness and another person . . . has been elicited, the other party may elicit the remaining portions which are relevant to the part which has been adduced."
Ordinarily, the completeness doctrine does not apply to separate utterances. State v. James, 144 N.J. 538, 555 (1996). But it may allow "the reading of a second writing . . . where 'it is necessary to (1) explain the admitted portion, (2) place the admitted portion in context, (3) avoid misleading the trier of fact, or (4) insure a fair and impartial understanding.'" Alves, supra, 400 N.J. Super. at 562 (quoting Lozada, supra, 257 N.J. Super. at 272); accord Gomez, supra, 246 N.J. Super. at 220.
Here, the 2012 electronic communications were initiated by defendant's friend after a lapse of more than two years in the communications. The friendship faltered as a result of the friend cooperating in the police investigation and disclosing the 2009 electronic conversations. In an undated communication that the friend sent to defendant, the friend apologized, inquired about defendant and wished her well, noted some positive events in defendant's life, and sought a conversation to explain "the misunderstanding." On March 19, 2012, defendant responded in a lengthy narrative communication stating that she had lied to the friend in 2009 when she said she was pregnant. Defendant said she lied so that the friend would tell defendant's boyfriend that defendant was pregnant and possibly cause the boyfriend to be more sympathetic and caring toward defendant. The friend responded with surprise to defendant's claim that she had lied in 2009. Defendant then sent three long messages on March 19 and 20, 2012, explaining further that all that she had written to the friend in 2009 was a lie and claiming that she would never have hurt the baby purposely.
In September 2012, the friend again initiated electronic communication, and defendant again responded with a long, narrative message. Defendant spoke about the criminal charges pending against her, repeated that she had lied in her 2009 communications about being pregnant in the spring of that year, and exculpated herself from the allegations of criminal conduct.
The trial court ruled that the 2012 conversations were a "continuation" of the dialogue between defendant and her friend and were admissible because they could be "highly probative" of the meaning of all the communications. The court found it particularly significant that the friend rather than defendant initiated the 2012 communications. In support of its ruling, the court cited Gomez, supra, 246 N.J. Super. at 209, but we read that case as leading to a different conclusion.
The defendant in Gomez was charged with the murder of a man in an Atlantic City rooming house, and he was arrested in another state. Id. at 211-12. Initially when questioned by the police, the defendant denied ever having lived in or visited New Jersey. Id. at 213. After the police told him he was being charged with the Atlantic City murder, the defendant made further statements claiming he had killed the victim accidentally and in self-defense. Ibid. The trial court permitted the State to introduce the defendant's denial of being in Atlantic City but denied the defendant's offer also to place in evidence his subsequent "exculpatory account of how the killing occurred." Ibid.
We considered the completeness doctrine and affirmed the trial court's ruling. Id. at 220-21. We described the two parts of the defendant's statements as "mutually inconsistent, exculpatory versions." Id. at 221. We explained:
[A]dmission of the later statement was not necessary to place defendant's prior declaration in its proper context. Nor was its admission required to avoid misleading the jury or to prevent confusion. Clearly, the two statements, made hours apart and relating to entirely different subjects, were not integrated so that introduction of one required admission of the other.
[Ibid.]
Similarly in this case, the 2009 and 2012 conversations are "mutually inconsistent" and are "not integrated" so that the jury needs the 2012 communications to understand defendant's meaning in 2009. Defendant's 2012 communications directly and purposefully contradict her 2009 statements, but the two sets of communications are not the same conversation.
In Gomez, we analyzed whether the two contradictory parts of the defendant's statements should be "considered as constituting one statement or two or more statements." Id. at 218 (quoting State v. Abrams, 72 N.J. 342, 344 (1977) (Conford, J., concurring)). We noted that the two parts of the statements were made several hours apart and an intervening event was the defendant being informed that he was charged with murder. We concluded that the two parts did not constitute one statement for purposes of applying the completeness doctrine. Id. at 219-21.
Here, the 2009 and the 2012 communications are clearly not one statement. Not only is there a gap of two to three years between them, but defendant's arrest and indictment intervened. Furthermore, the 2009 and the 2012 communications are significantly different in style. The 2012 communications are purposeful, contemplated explanations rather than spontaneous exchanges between two friends. They are in a narrative style of full sentences and paragraphs, not the abbreviated, slang, conversational style of the 2009 "chats." In the intervening two-and-a-half years, defendant was indicted for murder, and she was preparing her defense for the trial. She knew the State intended to use the 2009 communications as evidence against her. She had reason to recant those prior statements.
Finally, the police in Gomez initiated the second part of the defendant's statements, just as in this case, defendant's friend initiated the 2012 communications. The person who started the conversation is a less significant factor in considering whether the communications were a single dialogue than the time gap and the differing nature and purposes of the 2009 and the 2012 communications.
Although the trial court's evidentiary ruling is "entitled to substantial deference under the 'abuse of discretion' standard of review," we must also consider the purpose and scope of the rule of evidence under which the court admitted the 2012 communications. See State v. J.A.C., 210 N.J. 281, 301 (2012). The trial court erred in considering the 2012 communications to be a continuation and a completion of the 2009 communications.
We reverse the court's ruling that the 2012 electronic communications are admissible in evidence under N.J.R.E. 106. We have not considered and reach no conclusion as to whether the 2012 communications might be admissible under a different rule of evidence if a proper foundation for admissibility is laid before or at the time of trial.
Affirmed in part, reversed in part and remanded. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION