Opinion
DOCKET NO. A-0385-16T3
02-06-2017
STATE OF NEW JERSEY, Plaintiff-Appellant, v. TREMAYNE A. RODRIGUEZ, Defendant-Respondent.
Linda A. Shashoua, Assistant Prosecutor, argued the cause for appellant (Mary Eva Colalillo, Camden County Prosecutor, attorney, Ms. Shashoua, of counsel and on the brief). Justin T. Loughry argued the cause for respondent (Loughry & Lindsay, L.L.C., attorneys; Mr. Loughry, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Messano, Espinosa and Guadagno. On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 11-08-1761. Linda A. Shashoua, Assistant Prosecutor, argued the cause for appellant (Mary Eva Colalillo, Camden County Prosecutor, attorney, Ms. Shashoua, of counsel and on the brief). Justin T. Loughry argued the cause for respondent (Loughry & Lindsay, L.L.C., attorneys; Mr. Loughry, on the brief). PER CURIAM
This is the second time we have granted the State of New Jersey's motion for leave to appeal from a pre-trial evidentiary ruling made by the Law Division judge in this homicide case. In our earlier decision, we set forth the underlying facts and contentions regarding the shooting death of Kory Johnson, allegedly by defendant Tremayne Rodriguez. State v. Tremayne Rodriguez, No. A-4266-14 (App. Div. Feb. 25, 2016) (slip op. at 2-4). We reversed a portion of the trial court's April 13, 2015 order (the April 2015 order) that barred introduction of evidence contained in defendant's statement to police regarding his gang affiliation. Id. at 15.
Although citing an unpublished opinion is generally forbidden, we do so here to provide a full understanding of the issues presented and pursuant to the exception in Rule 1:36-3 that permits citation "to the extent required by res judicata, collateral estoppel, the single controversy doctrine or any other similar principle of law." See Badiali v. N.J. Mfrs. Ins. Grp., 429 N.J. Super. 121, 126 n.4 (App. Div. 2012), aff'd, 220 N.J. 544 (2015).
Defendant told police he shot Johnson because of "'[G]ang shit[,] . . . Blood, [Crip] shit.' Defendant told investigators that he was a Blood and Johnson was a Crip." Id. at 3.
We also granted leave at the time to review another portion of the April 2015 order that 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.
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.Defendant conceded then and today that when he shot Johnson on August 1, 2010, he had no knowledge of Johnson's prior possession of a weapon or conviction for aggravated assault as a result of events nineteen months earlier, on December 30, 2008. Defendant nevertheless argued the evidence was admissible to prove Johnson threatened to retrieve a gun, as defendant told police. Id. at 3, 5.
[Id. at 6 (emphasis added).]
In our prior opinion, we reluctantly concluded leave to appeal was "improvidently granted" as to these provisions of the April 2015 order because "the judge's ruling was entirely preliminary . . . . [And] we ha[d] no evidentiary record upon which to base our review . . . ." Id. at 15. Furthermore, given the limited proffer by defendant at the time — "two defense investigative reports" — we could not "say with certainty . . . there w[ould] ever be an evidentiary record to review[,] . . . [or] what other evidence defendant may marshal during the hearing contemplated by . . . the . . . order." Id. at 16 (emphasis added).
The parties appeared before the judge again on July 7, 2016, at which time the judge asked "what evidence . . . [defendant] ha[d] that would permit the Court to make a more precise order . . . ." Counsel indicated he subpoenaed the two witnesses referenced in the investigative reports — the victim of the December 2008 shooting, D.W., and an eyewitness to the shooting, R.C. Only R.C. was present in court. Counsel proffered portions of Johnson's guilty plea allocution entered on April 15, 2013. When defense counsel indicated his intention to obtain D.W.'s medical records to demonstrate he had been shot in December 2008, the State conceded the point but not that Johnson was the shooter.
As we previously noted, "[d]uring the plea colloquy, [Johnson] admitted intentionally causing serious bodily injury to the victim, but he never admitted possessing a handgun." Id. at 4.
Defendant proffered the statement R.C. gave police in 2008. Essentially, R.C. could not identify the shooter but said he was alone on the street with D.W. when a single person approached and placed a gun near R.C.'s face before R.C. heard a gunshot. Defense counsel advised the judge he intended to call "the appropriate custodians of evidence" to demonstrate that investigators searched for the gun involved in the December 2008 shooting but never recovered any firearm. Lastly, counsel proffered a 2013 statement D.W. gave to defense investigators where he identified, for the first time, Kory Johnson as the person who shot him in 2008.
Citing State v. Cope, 224 N.J. 530 (2016), decided after our previous decision, the judge concluded he need not hold an evidentiary hearing and considered the oral arguments of both sides. The prosecutor urged the judge to conclude the proffered evidence was irrelevant, as the judge had in fact determined in a February 2014 written decision and conforming order. The prosecutor explained in detail D.W.'s and R.C.'s prior interactions with law enforcement during which neither identified Kory Johnson as the December 2008 shooter. The prosecutor contended that the Court's holding in Cope relied upon assertions of "third-party guilt" and, therefore, was entirely distinguishable from this case. Defense counsel reiterated the evidence was relevant to prove, as defendant claimed in his statement to police, that Johnson actually said he was going to get a gun during the fatal confrontation.
In his February 11, 2014 order, the judge denied defendant's "motion to admit evidence generally regarding a gun and shooting-related incident . . . occurring on December 30, 2008, pursuant to [N.J.R.E.] 404(b) to show a greater probability that Johnson really made the statement that he was going to get a gun, and that he really intended to do so, thereby showing that the [d]efendant's response in self-defense was justified . . . ."
Defense counsel also pointed out, however, that R.C. picked Kory Johnson's photograph as that of D.W.'s assailant from a photo array during an out-of-court identification procedure conducted by the police.
The judge concluded there was no need to reconsider the gist of the April 2015 order or conduct an evidentiary hearing. He reasoned the State's essential objection was to the credibility of D.W. and R.C., but it would have the opportunity to cross-examine them at trial and "present countervailing evidence." Quoting Cope, supra, 224 N.J. at 552, and relying on other case law, the judge reasoned "so long as evidence that a defendant would proffer in a criminal case has a 'rational tendency to engender a reasonable doubt with respect to an essential feature of the State's case,' then such evidence as a general proposition is admissible." The judge concluded the proffered evidence was relevant to defendant's claim of self-defense.
The July 7, 2016 order from which we granted leave to appeal permits defendant to introduce the following evidence (the proffered evidence) at trial without any further hearing: statements from Johnson's plea allocution in which he admitted arguing with D.W., purposely causing injuries to D.W. that created a significant risk of death, and acting in disregard of that risk; that D.W. "suffered a gunshot wound[,] including but not limited to medical evidence"; that R.C. said, "pursuant" to his statement, he was alone with D.W. on the street, a single person approached both of them and placed a gun near R.C.'s face and R.C. heard a shot; D.W.'s 2013 statement that Johnson shot him; and, through "law enforcement investigators," evidence that no gun was recovered from the December 2008 incident.
Before us, the State reiterates the argument made below that the evidence is irrelevant to the claim of self-defense because defendant had no knowledge of the December 2008 shooting, Johnson's alleged possession of the weapon or Johnson's guilty plea to aggravated assault. The State further argues that even if any of the proffered evidence was relevant, its probative value is substantially outweighed by the risk of undue prejudice, confusion and delay. N.J.R.E. 403. Defendant likewise reiterates the argument he made in the Law Division, specifically, when "other bad acts evidence" is offered by the defense, the test for admissibility is "simple relevance to guilt or innocence." State v. Dreher, 302 N.J. Super. 408, 457 (App. Div.), certif. denied, 152 N.J. 10 (1997), cert. denied, 524 U.S. 943, 118 S. Ct. 2353, 141 L. Ed. 2d 723 (1998); see also State v. Weaver, 219 N.J. 131, 150 (2014) (when other-crimes evidence is used defensively, "'simple relevance to guilt or innocence should suffice' as the admissibility standard") (quoting State v. Garfole, 76 N.J. 445, 452-53 (1978)). Defendant asserts "[t]hat Kory Johnson possessed and wielded a gun the previous year and . . . police never recovered that gun, [which] make[s] it somewhat more likely that . . . Johnson in fact announced that he was reaching for his gun" on the day defendant fatally shot him. We have considered these arguments and are again constrained to reverse.
We generally accord deference to the trial court's evidentiary rulings "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)). Our review is de novo, however, if the trial court fails to properly analyze the admissibility of the proffered evidence. State v. Lykes, 192 N.J. 519, 534 (2007).
We acknowledge that the defensive use of other bad acts evidence under N.J.R.E. 404(b) need not satisfy the more rigorous four-part test for admissibility necessary when the State is the proponent. Weaver, supra, 219 N.J. at 150-51. Many times, the specific use of "reverse 404(b) evidence," id. at 150, is to point an accusatory finger toward another person, so-called third-party guilt evidence. "A court cannot bar the admissibility of third-party guilt evidence that 'has a rational tendency to engender a reasonable doubt with respect to an essential feature of the State's case.'" Cope, supra, 224 N.J. at 552 (quoting State v. Fortin, 178 N.J. 540, 591 (2004)). This is not a case in which defendant intends to use the proffered evidence to implicate a third party as Johnson's killer; defendant admitted that he shot Johnson. However, the Court has recognized the admissibility of reverse 404(b) evidence to also support claims of self-defense. State v. Jenewicz, 193 N.J. 440, 462-63 (2008).
Regardless of how "relaxed" the standard for admissibility of reverse 404(b) evidence may be, Weaver, supra, 219 N.J. at 151, the evidence must in the first instance be relevant. See N.J.R.E. 401 ("'Relevant evidence' means evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action.") (emphasis added). In this case, all of the proffered evidence was intended to prove that nineteen months before being shot by defendant, Johnson possessed a firearm that was never found. For the reasons that follow, the proffered evidence is inadmissible, because it is not "relev[ant] to [defendant's] guilt or innocence." Weaver, supra, 219 N.J. at 150 (quoting Garfole, supra, 76 N.J. at 452-53); see also Jenewicz, supra, 193 N.J. at 457-58 (holding testimony that the victim kicked the defendant down the stairs on an occasion prior to fatal shooting did "not meet the liberal definition of 'relevant evidence'" as to the defendant's self-defense claim) (quoting N.J.R.E. 401)).
N.J.S.A. 2C:3-4(a) provides that the use of force is justified "when the actor reasonably believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion." The use of deadly force is only justified if "the actor reasonably believes that such force is necessary to protect himself against death or serious bodily harm . . . ." N.J.S.A. 2C:3-4(b)(2). The Criminal Code further limits the use of deadly force in self-defense, stating its use is not justified if "[t]he actor knows that he can avoid the necessity of using such force with complete safety by retreating or by surrendering possession of a thing to a person asserting a claim of right thereto . . . ." N.J.S.A. 2C:3-4(b)(2)(b).
"A self-defense claim therefore 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." Jenewicz, supra, 193 N.J. at 450. "[E]ven when the defendant's belief in the need to kill in self-defense is conceded to be sincere, if it is found to have been unreasonable under the circumstances, such a belief cannot be held to constitute complete justification for a homicide." State v. Kelly, 97 N.J. 178, 199 (1984). Because a defendant's state of mind at the time is "inherently intangible," and because his own testimony is "vulnerable . . . to impeachment for bias, . . . [p]resentation of other evidence addressing the objective reasonableness of a defendant's subjective perception of mortal danger becomes crucial to the defense and to the jury's truth-seeking function." Jenewicz, supra, 193 N.J. at 451 (citing Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 1923, 18 L. Ed. 2d 1019, 1023 (1967)).
As we noted in our prior opinion, the State concedes that evidence of Johnson's aggravated assault conviction is admissible. Rodriguez, supra, slip op. at 4; see Jenewicz, supra, 193 N.J. at 459 (victim's criminal convictions are admissible to prove violent character which "tends to show that the victim was the initial aggressor"). A defendant's "[p]ersonal knowledge of the victim's propensity for violence is not a prerequisite for admission" of this evidence. State v. Aguiar, 322 N.J. Super. 175, 182-84 (App. Div. 1999).
N.J.R.E. 404(b) "permits defendants alleging self-defense to produce prior-acts evidence that speaks to the issue of the reasonableness of the defendant's belief that deadly force was necessary." Id. at 462. However, "[o]nly when the defendant has actual knowledge of the specific acts to which a witness testifies is specific-acts testimony probative of the defendant's reasonable belief." Id. at 463 (citing State v. Gartland, 149 N.J. 456, 473 (1997)). In this case, defendant admits he had no knowledge of the December 2008 events, including Johnson's alleged possession of a firearm. Therefore, even if Johnson possessed a gun nineteen months earlier, thereby making it more likely he told defendant he was going to get a gun, the proffered evidence is irrelevant to the determination of the only fact of consequence, i.e., whether defendant's actions in shooting Johnson were objectively reasonable. See N.J.R.E. 401, supra.
We hasten to add that we reach this conclusion without expressing any judgment as to the merits of defendant's self-defense claim. Defendant told police that "when [Johnson] went to go run for his . . . gun[,] I just shot him." Whether this or other evidence supports a reasonable belief that the use of deadly force was "immediately necessary" to protect defendant from death or serious bodily injury must, of course, abide trial. N.J.S.A. 2C:3-4(a) (emphasis added). We only conclude that the proffered evidence was irrelevant to the claim of self-defense. See Jenewicz, supra, 193 N.J. at 457-58 (concluding that because the defendant was the initial aggressor in prior incident, testimony about that incident was "not relevant to support the reasonableness of [the defendant's] belief in the need to use self-defense on the date of the shooting").
We also agree with the State that even if the proffered evidence was marginally relevant, its probative value was substantially outweighed by its capacity to prejudice the State, confuse the jury and consume much time at trial. N.J.R.E. 403. The judge noted the State never raised this argument during the hearing, but we disagree. The prosecutor specifically contended the proffered evidence was "creating a whole other set of issues that ha[d] nothing to do with the murder trial . . . ." He explained in detail the contradictory statements made by D.W. and R.C. contemporaneously with the December 2008 shooting.
Even under the more relaxed standards for admissibility of defensive 404(b) evidence, "trial courts must still determine that the probative value of the evidence is not substantially outweighed by any of the Rule 403 factors . . . ." Weaver, supra, 219 N.J. at 151. Assuming D.W. or R.C. actually testified, the record reveals ample fodder for cross-examination. Defendant also intended to call law enforcement personnel to describe their fruitless efforts to find a gun related to the December 2008 shooting, and to introduce D.W.'s medical records. All this evidence was intended not to prove Johnson possessed a gun on August 1, 2010, but only to bolster defendant's assertion that Johnson said he was going to get a gun. The record before us fails to reveal that any gun was found near Johnson's body or in the immediate area. The N.J.R.E. 403 balance weighs heavily against the admission of the proffered evidence.
Although the order implies their statements could be used, we fail to see any exception to the hearsay rule that applies, and the judge did not cite any exception. In Cope, supra, 224 N.J. at 553-54, the Court explicitly found the proffered notarized statement supporting a theory of third-party guilt was admissible as an exception to the hearsay rule. --------
Lastly, during oral argument before us, defendant alternatively asserted that, even if it did not wholly excuse his conduct, the proffered evidence was relevant to show defendant's state of mind. We disagree.
We have said
Imperfect self-defense is "no more than an honest subjective belief on the part of the killer that his or her actions were necessary for his or her safety, even though an objective appraisal by reasonable people would have revealed not only that the actions were unnecessary, but also that the belief was unreasonable.""Evidence of imperfect self-defense does not justify the conduct, it mitigates the offense." Bowens, supra, 108 N.J. at 633. "Thus, in a murder prosecution, '[i]f a defendant subjectively thinks that self-defense is necessary but does not intend a fatal injury, in either the sense of knowledge or purpose, such evidence is relevant to the State's case on that issue.'" State v. Pridgen, 245 N.J. Super. 239, 246 (App. Div. 1991) (quoting Bowens, supra, 108 N.J. at 641).
State v. O'Carroll, 385 N.J. Super. 211, 237 (App. Div. 2006) (quoting State v. Bowens, 108 N.J. 622, 628 (1987)).
Defendant may certainly assert his honest but unreasonable belief that deadly force was "immediately necessary" raises a reasonable doubt as to whether he acted purposefully or knowingly, i.e., with the requisite mental state required for murder. The Court has recognized a "'failure of proof' defense" in this regard. State v. Williams, 168 N.J. 323, 333 (2001); Bowens, supra, 108 N.J. at 636-37. However, the proffered evidence is irrelevant to defendant's state of mind because he had no knowledge of any of it before shooting Johnson.
Reversed and remanded. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION