Opinion
DOCKET NO. A-4266-14T1
02-25-2016
STATE OF NEW JERSEY, Plaintiff-Appellant, v. TREMAYNE A. RODRIGUEZ, Defendant-Respondent.
Mary Eva Colalillo, Camden County Prosecutor, attorney for appellant (Linda A. Shashoua, Assistant Prosecutor and Gregg I. Perr, Assistant Prosecutor, of counsel and on the brief). Loughry and Lindsay, L.L.C., attorneys for respondent (Justin T. Loughry, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 11-08-1761. Mary Eva Colalillo, Camden County Prosecutor, attorney for appellant (Linda A. Shashoua, Assistant Prosecutor and Gregg I. Perr, Assistant Prosecutor, of counsel and on the brief). Loughry and Lindsay, L.L.C., attorneys for respondent (Justin T. Loughry, on the brief). PER CURIAM
The Camden County grand jury returned Indictment No. 11-08-1761, charging defendant Tremayne Rodriguez with first-degree murder, N.J.S.A. 2C:11-3a(1) and (2); two counts of second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a; two counts of second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b; and two counts of second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7b. A series of evidentiary motions and hearings culminated in the Law Division's April 13, 2015 order (the April order) consolidating all of the prior decisions made by the judge. By our leave granted, the State appeals from two provisions of the April order. Before turning to the State's specific arguments, we provide some context.
I.
On August 1, 2010, the victim, Kory Johnson, was found lying on a sidewalk near Northgate Park bleeding heavily from multiple gunshot wounds. He was pronounced dead later that day. Investigation led police to defendant, who was arrested in the same vicinity carrying a loaded .22 caliber handgun on August 2. After waiving his Miranda rights, defendant provided police with a videotaped statement.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
The videotaped statement is not part of the appellate record, although a transcript of defendant's statement has been provided.
Defendant initially claimed to have found the gun in the trash and denied knowing anything about the shooting. After persistent interrogation, defendant admitted, "[l]isten, to keep it real with you I did shoot him." When asked why, defendant replied, "[G]ang shit[,] . . . Blood, [Crip] shit." Defendant told investigators that he was a Blood and Johnson was a Crip.
According to defendant, he saw Johnson dealing drugs on the corner near the park. The two men briefly argued over the right to sell drugs in the vicinity. Defendant challenged Johnson, telling him "you can't be hustling you feel me, like somebody got something out here." Johnson countered by yelling, "I don't give a f*** man, I'm [Crip]! I do what the f*** I want." Defendant replied, "[a]lright man, I'll get it popping. I don't give a f*** about none of that shit."
Defendant said Johnson stated that he would be right back and was "about to go get [his] ratchet." Defendant told police, "when he went to go run for his . . . gun I just shot him." Defendant admitted that he shot at Johnson five times. He also acknowledged that he had confronted Johnson the day before the shooting occurred, telling Johnson that he was not supposed to be selling drugs in the park.
Johnson had himself been charged with attempted murder and aggravated assault for events that occurred on December 30, 2008, approximately eighteen months earlier. The indictment alleged that Johnson had shot the victim in the stomach. On April 12, 2010, Johnson pled guilty to one count of third-degree aggravated assault. During the plea colloquy, he admitted intentionally causing serious bodily injury to the victim, but he never admitted possessing a handgun. Johnson was sentenced to a three-year term of non-custodial probation in accordance with the plea bargain.
Defendant moved pre-trial to admit evidence of Johnson's prior conviction for aggravated assault. The State did not contest that the prior conviction was admissible pursuant to N.J.R.E. 404(a)(2) and N.J.R.E. 405 to prove the victim's propensity for violence, and that he, not defendant, was the initial aggressor.
Evidence of a person's character is generally inadmissible to prove that he acted in conformity with that character trait on a specific occasion. N.J.R.E. 404(a). However,
[e]vidence of a pertinent trait of character of the victim of the crime offered by an accused or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor[.]
[N.J.R.E. 404(a)(2).]
However, defendant also sought to admit factual evidence that Johnson possessed a gun on December 30, 2008, and that the gun was never recovered by authorities. Defendant argued that such evidence was admissible under N.J.R.E. 404(b) to prove that Johnson actually threatened to retrieve a gun, thereby making defendant's subjectively perceived threat objectively reasonable. See, e.g., State v. Jenewicz, 193 N.J. 440, 450 (2008) ("A self-defense claim . . . requires a jury (1) to discern whether the defendant had a subjective belief at the time that deadly force was necessary and then (2) to determine whether that subjective belief was objectively reasonable."). Defendant argued that the evidence was clearly relevant, and therefore admissible. See State v. Weaver, 219 N.J. 131, 150-51 (2014) (noting that the use of "other-crimes evidence defensively" is subject only to a "simple relevance" standard and possible exclusion under N.J.R.E. 403). The judge ultimately agreed.
The April order permitted defendant to introduce Johnson's prior conviction "to show a pertinent trait of the character of the victim of the crime, specifically a violent propensity, for the purpose of establishing that the alleged victim was the initial aggressor . . . ." The State does not appeal from this provision. However, section 2 of the April order provided:
Pursuant to N.J.R.E. 404(b), the [d]efendant may offer evidence relative to the possession by the alleged victim . . . of a gun on a date prior . . . , and that the gun was never recovered.The State seeks our review of these provisions.
a. The specific evidence that the [d]efendant may seek to introduce in this regard shall be the subject of a separate application by the [d]efendant in advance of trial whereupon the [c]ourt shall order more precisely the nature and extent of such evidence that may be offered, consistent with this order.
b. This evidence may be offered solely for the purpose of attempting to establish that the alleged victim . . . actually did say to the [d]efendant . . . that he, [the victim], was going to get his gun, to support the [d]efendant's self-defense argument.
Pursuant to N.J.R.E. 404(b), the State sought to introduce evidence that defendant was involved in prior drug dealing at the location of the shooting, that he and Johnson had an altercation the day before the shooting over drug dealing at the location and defendant's statement regarding his and Johnson's gang affiliations. Defendant did not object to the first two proffers, however, he objected to any mention of his gang affiliation, arguing it was highly prejudicial. The judge conducted a comprehensive analysis utilizing the four-prong test enunciated in State v. Cofield, 127 N.J. 328, 338 (1992). He concluded that the "undue prejudice of the gang affiliation evidence outweighs its probative value," and excluded that portion of defendant's statement in which he acknowledged his gang membership as a motive for the shooting. The other statements allegedly made by Johnson acknowledging that he was a Crip, however, were not subject to exclusion.
In Cofield, the Court articulated a four-part test regarding the admissibility of "uncharged misconduct":
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.
[State v. Rose, 206 N.J. 141, 159-60 (2011) (quoting Cofield, supra, 127 N.J. at 338).]
The State sought reconsideration, arguing that defendant's statement that the shooting was gang-related was "intrinsic evidence" and, hence, not subject to Rule 404(b) analysis. Rose, supra, 206 N.J. at 180. The judge agreed and considered whether the evidence should nonetheless be excluded under N.J.R.E. 403. Id. at 179. He stated:
The remaining question then is whether the risk of undue prejudice substantially outweighs the probative value of this evidence as contemplated by [N.J.R.E.] 403.
I conclude . . . for the same essential reasons underpinning the Court's earlier 404(b) analysis that the prejudicial effect of this evidence substantially outweighs its probative value.
[(Emphasis added).]
The judge explained, the evidence "that . . . defendant's gang affiliation motivated this shooting [was] not highly probative" in the absence of expert testimony and any explanation by defendant "how this [gang] rivalry motivated him [on] the day of the shooting." The judge noted his earlier ruling that permitted the State to introduce evidence of a prior dispute, the day before the shooting, about "drug turf." The judge reasoned, "[t]his drug turf confrontation evidence serves the same purpose as evidence of the defendant's gang affiliation, that is the motive for the shooting, but is less prejudicial and less speculative." Finally, the judge said that the "probative value of the defendant's gang affiliation is further minimized when viewed in the full context of the State's case[,]" which included "ample other inculpatory evidence that renders evidence of the defendant's gang affiliation relatively unimportant."
Section 5 of the April order, therefore, denied the State's motion for reconsideration and barred any reference to defendant's "alleged gang affiliation" because "its probative value [was] substantially outweighed by the risk of undue prejudice pursuant to [Rule] 403." We granted the State's motion for leave to appeal from this provision, and section 2 of the April order.
II.
We begin by noting that "'[a] trial court's evidentiary rulings are entitled to deference absent a showing of an abuse of discretion, i.e., there has been a clear error of judgment.'" State v. Nantambu, 221 N.J. 390, 402 (2015) (quoting State v. Harris, 209 N.J. 431, 439 (2012)).
Furthermore, appellate review of a trial court's application of the balancing test of N.J.R.E. 403 also is subject to the abuse of discretion standard, which sustains the trial court's ruling "unless it can be shown that 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."However, when the trial court fails to apply the proper test in analyzing the admissibility of proffered evidence, our review is de novo. See ibid. (applying de novo review when trial judge failed to recognize evidence was subject to Rule 404(b) analysis).
[State v. Lykes, 192 N.J. 519, 534 (2007) (alteration in original) (quoting Verdicchio v. Ricca, 179 N.J. 1, 34 (2004)).]
A.
As to the exclusion of defendant's own statement that rival gang affiliations was the motive for the shooting, the State contends that the judge failed to recognize the "manifestly substantial probative value" of the evidence. Secondly, the State contends that the judge identified the correct standard contained in Rule 403 "in name only," and that he essentially applied the same Rule Cofield/Rule 404 (b) analysis used in his earlier decision. We agree and reverse.
"[E]vidence is intrinsic if it 'directly proves' the charged offense." Rose, supra, 206 N.J. at 180 (quoting United States v. Green, 617 F.3d 233, 248 (3d Cir. 2010)); see also, State v. Skinner, 218 N.J. 496, 517 n.5 (2014) (recognizing that "direct proof against a defendant — such as an admission," is not subject to Rule 404(b) analysis). Defendant's own statement — that he shot the victim because of "gang shit[,] . . . Blood, [Crip] shit[,]" thereafter explaining he was a Blood and the victim a Crip — was intrinsic evidence of motive not subject to Rule 404(b) analysis.
As noted, intrinsic evidence is still subject to exclusion under Rule 403. Rose, supra, 206 N.J. at 179. However, the standard contained in the fourth prong of the Cofield test "is more exacting than Rule 403," id. at 161, and "is typically considered the most difficult to overcome." Id. at 160 (citing State v. Barden, 195 N.J. 375, 389 (2008)). For example, "'[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.'" Id. at 161 (alteration in original) (quoting Barden, supra, 195 N.J. at 392).
The standard for exclusion under Rule 403 is materially different from the fourth prong of the Cofield/Rule 404(b) test. Id. at 160-61. Under Rule 403, relevant evidence is presumptively admissible, see N.J.R.E. 402, "unless its probative value is substantially outweighed by the risk of undue prejudice." Id. at 161.
Applying Rule 403 to this case, it cannot be disputed that defendant's statement is highly probative. As the Court has noted, "[i]n most cases . . . the probative value of a defendant's statement would outweigh its prejudicial effect and be admitted" unless "there is available less inflammatory evidence." State v. Covell, 157 N.J. 554, 573-74 (1999); see also State v. Jackson, 182 N.J. Super. 98, 100-02 (App. Div. 1981) (applying predecessor Evidence Rule 4 and reversing trial court's exclusion of defendant's statement because it was provided after a polygraph exam). The judge seemingly reasoned that evidence of a turf battle over drug dealing was less inflammatory than evidence of defendant's gang affiliation. However, evidence of a turf battle does not prove the same facts in a less inflammatory manner; it proves different facts. See State v. Long, 173 N.J. 138, 164 (2002) (noting exclusion was appropriate if "other less prejudicial evidence existed to demonstrate [the] same facts") (emphasis added) (citing State v. Chavies, 345 N.J. Super. 254, 273-74 (App. Div. 2001)). Evidence of a turf battle supplies a different, albeit undoubtedly related, motive to the shooting than defendant himself supplied.
"[E]vidence as to motive is admissible even though it may be prejudicial in the sense that it will arouse or inflame the jury against the defendant." State v. Carter, 91 N.J. 86, 106 (1982). "A wide range of motive evidence is generally permitted, and even where prejudicial, its admission has been allowed in recognition that it may have 'extremely high probative value.'" Rose, supra, 206 N.J. at 165 (quoting Long, supra, 173 N.J. at 164-65). Moreover, the State is entitled to prove defendant's motive through multiple proffers of evidence. Ibid. In short, we agree with the State that the judge failed to properly consider the probative strength of defendant's own statement about why he shot Johnson.
Turning to the other side of the Rule 403 balance, the highly probative value of this motive evidence must be "substantially outweighed by the risk of [] undue prejudice." N.J.R.E. 403(a) (emphasis added). "This qualifier [of undue prejudice] is critical to proper application of N.J.R.E. 403 because all damaging evidence is prejudicial." Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment 5 on N.J.R.E. 403 (2015). In State v. Moore, 122 N.J. 420 (1991), a case where the defendant challenged the admission of color, as opposed to black-and-white, crime scene photographs under prior Evidence Rule 4, the Court explained the prejudice arm of the balancing test: "the danger of undue prejudice must outweigh probative value so as to divert jurors 'from a reasonable and fair evaluation of the basic issue of guilt or innocence.'" Id. at 467 (quoting State v. Sanchez, 224 N.J. Super. 231, 249-50 (App. Div.), certif. denied, 111 N.J. 653 (1988)).
In considering the undue prejudice side of the Rule 403 scale, the judge reasoned that "evidence of the defendant's gang affiliation [was] highly prejudicial." He cited State v. Vallejo, 198 N.J. 122, 133 (2009), for the proposition that "evidence . . . the defendant committed another crime is highly prejudicial and distracts a jury from an independent consideration of the evidence that bears directly on guilt itself." However, as already noted, the evidence in this case was intrinsic to the crime itself. It was not "other crimes" evidence to which the more restrictive fourth-prong of the Cofield test applies.
The judge also cited our decision in State v. Goodman, 415 N.J. Super. 210 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011), as persuasive authority for the prejudicial effect of gang affiliations, noting "gang membership . . . is strongly suggestive of criminal activity." Ironically, in Goodman, we held that evidence of gang rivalry was highly probative of motive. Id. at 230. There, we applied a Rule 404(b) analysis to gang affiliation evidence proffered through witnesses other than the defendant. Id. at 226-28. Even applying that more rigorous test, we concluded that "the prejudice inherent in the revelation of [the defendant's] gang membership was outweighed by the probative value of the gang-related aspects of the relationship . . . in explaining why the events unfolded as they did." Id. at 230.
In short, the judge did not properly evaluate the evidence of gang affiliation contained in defendant's own statement as a motive for the shooting or properly weigh its probative value as to motive. He therefore inappropriately conducted the balancing test required by Rule 403. We reverse section 5 of the April order.
B.
We reluctantly conclude that leave to appeal was improvidently granted as to section 2 of the April order. Those provisions make clear that the judge's ruling was entirely preliminary and expressly subject to "specific evidence" proffered by defendant by "separate application . . . in advance of trial." Unlike our review of the admissibility of defendant's own words, we have no evidentiary record upon which to base our review of the issues raised by the State. Moreover, we cannot say with certainty that there will ever be an evidentiary record to review.
This is so because the appellate record contains only two defense investigative reports. One summarizes a telephone interview with the alleged victim of Johnson's 2010 aggravated assault. This person supposedly identified Johnson as his assailant, but also indicated that he "did not want to identify Johnson as the person who shot him . . . ." The second report summarizes an interview with another witness who claimed that he "wasn't sure about Johnson being the shooter and did not go to court to testify against Johnson for that reason." The witness was "drunk" at the time of the shooting and "did not see the face of the shooter very well." It is unclear from the record before us what other evidence defendant may marshal during the hearing contemplated by section 2 of the April order.
This aspect of the State's appeal raises interesting and complex issues of the interplay between an assertion of self-defense and the use of other-crimes evidence allegedly committed by the victim. However, given the complexity of the issues, rendering an opinion in the absence of any evidentiary record would be ill-advised.
It is well-accepted that an appellate court "will not render advisory opinions or function in the abstract." Indep. Realty Co. v. Twp. of North Bergen, 376 N.J. Super. 295, 301 (App. Div. 2005) (citing Crescent Park Tenants Ass'n v. Realty Equities Corp., 58 N.J. 98, 107 (1971); N.J. Tpk. Auth. v. Parsons, 3 N.J. 235, 240 (1949)). We refuse to consider in the abstract the State's argument that extrinsic evidence of the victim's prior criminal acts, unknown to defendant at the time of the shooting, is irrelevant to the asserted claim of self-defense, and, therefore, inadmissible.
We reverse section 5 of the April order and dismiss the balance of the State's appeal without consideration of its merits and without prejudice.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
N.J.R.E. 405 provides that the character trait may be proven by "evidence of conviction of a crime which tends to prove the trait."