Opinion
DOCKET NO. A-2641-11T4
07-07-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. T.M., Defendant-Appellant.
Rochelle Watson, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Watson, of counsel and on the briefs). Joseph A. Glyn, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Mr. Glyn, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano and Hayden.
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 08-11-1316.
Rochelle Watson, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Watson, of counsel and on the briefs).
Joseph A. Glyn, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Mr. Glyn, of counsel and on the brief). PER CURIAM
Following multiple jury trials, defendant T.M. was convicted of third-degree criminal restraint, N.J.S.A. 2C:13-2; second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d); third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3)(A); and fourth-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(a). The trial judge sentenced defendant to an aggregate prison term of eleven and a half years with six and a half years of parole ineligibility.
Before us, defendant raises the following arguments for our consideration:
POINT I: THE ADMISSION OF NUMEROUS VITRIOLIC LETTERS, OVER DEFENSE COUNSEL'S OBJECTION, WITHOUT A COFIELD[] ANALYSIS, AND WITHOUT A LIMITING INSTRUCTION, IN WHICH THE DEFENDANT SPEWED VIOLENT THREATS AND DETAILED HIS CONTEMPT FOR HIS EX-GIRLFRIEND AND HER BOYFRIEND, SEVERELY PREJUDICED DEFENDANT'S RIGHT TO A FAIR TRIAL.
POINT II: THE JUDGE'S INSTRUCTION AFTER THE SUBSTITUTION OF A JUROR INVITED THE JURY TO RELY ON PREVIOUS DELIBERATION IN DELIBERATING ANEW. (Not Raised Below).
POINT III: THE MATTER SHOULD BE REMANDED FOR RESENTENCING BECAUSE THE TRIAL JUDGE PLACED UNDUE WEIGHT ON DEFENDANT'S PRIOR MISCONDUCT AND GAVE LITTLE CONSIDERATION TO THE CIRCUMSTANCES OF THE OFFENSE THAT MADE IT LESS SERIOUS THAN OTHERS IN ITS CLASS.
State v. Cofield, 127 N.J. 328 (1992).
We have considered these arguments in light of the record and applicable legal standards. Because we agree that several threatening letters written by defendant were erroneously and prejudicially admitted into evidence without a proper Cofield analysis and without the jury being instructed that defendant's bad acts could not be used to show a propensity to commit crime or violence, we reverse the convictions and remand for a new trial.
Because of this remand, we do not reach defendant's arguments in Points II and III.
I.
The record reveals the following facts. Defendant was incarcerated in State Prison in 2003. While confined, defendant sent more than thirty letters to his ex-girlfriend, C.M. (Cara), with whom he had a daughter, A.M. (Ann). Several of these letters contained disparaging remarks and threats against Cara, Ann, and Cara's new boyfriend. In these letters defendant expressed his distress and anger that Cara was keeping Ann from visiting him and exposing Ann to other men, which he had specifically forbidden. Defendant also declared repeatedly that his anger and hatred for Cara at times made him hate his own daughter, and, in one letter, he threatened to cut both Cara's and Ann's throats.
Pseudonyms are used for the parties involved in this case to protect the minor child's privacy.
Defendant was released from prison on October 17, 2007. Pursuant to his instructions, Cara met him at the bus with defendant's father and Ann, then six years old. They proceeded to defendant's mother's home where Cara explained to defendant that she was going to work and her mother would arrive in approximately an hour to pick up Ann. Defendant became angry because he believed Ann would be staying with him for several days at a minimum. A heated and prolonged argument ensued in the presence of defendant's parents and Ann. Defendant's parents tried to calm the situation, but defendant insisted that he was going to take Ann to the friend's house where he would be staying and would let Cara know when he was ready to give the child back.
During the argument, Cara called her boss several times to tell her she would be late for work. When defendant overheard Cara's boss offering to call the police, he declared that if the police came, there would be "bloodshed." Defendant also pushed Cara in the face. Cara exited the residence to calm defendant, but remained outside. Cara's boss and defendant's mother both called the police about the domestic dispute.
When the police arrived, they spoke with Cara outside before proceeding into the residence. Upon entering, the officers observed defendant at the top of the stairs holding a knife in one hand and clutching Ann with his other. Defendant refused to release Ann or drop the knife, and police heard him threaten Ann's life if they advanced. A stand-off with the police, including two trained negotiators, occurred, which lasted over three hours. Defendant finally released Ann after police allowed him to speak with Cara. Defendant was arrested immediately. Ann was not physically injured, but later received treatment from a therapist due to the incident.
On May 13, 2008, a grand jury indicted defendant on thirteen counts, namely, first-degree kidnapping (holding for ransom, reward, or as a hostage), N.J.S.A. 2C:13-1(a) (count one); first-degree kidnapping (to inflict bodily injury or terrorize), N.J.S.A. 2C:13-1(b)(2) (count two); first-degree kidnapping (to permanently deprive parent or guardian of custody), N.J.S.A. 2C:13-1(b)(4) (count three); third-degree interference with custody, N.J.S.A. 2C:13-4(a) (count four); third-degree criminal coercion, N.J.S.A. 2C:13-5(a)(1) (count five); second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count six); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2) (count seven); third-degree terroristic threats, N.J.S.A. 2C:12-3(b) (count eight); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count nine); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count ten); third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3)(A) (count eleven); fourth-degree obstructing the administration of law, N.J.S.A. 2C:29-1(a) (count twelve); and fourth-degree weapons possession by a convicted person, N.J.S.A. 2C:39-7(a) (count thirteen).
Before trial, the judge, at the State's request, dismissed counts four, five, and twelve, and bifurcated count thirteen. The State also asked the judge to determine the admissibility of certain letters defendant wrote to Cara from prison. The judge ruled that eleven of the letters defendant wrote to Cara were admissible, not under N.J.R.E. 404(b) as the State argued, but as relevant statements of defendant.
After a five-day trial, the jury found defendant guilty of counts six, nine, ten, and eleven, and found him not guilty of counts two, three, seven, and eight. The jury could not reach a verdict regarding count one, resulting in a mistrial on that count. Immediately thereafter, in a separate trial, the jury found defendant guilty of count thirteen.
The second jury trial on the remaining kidnapping count occurred over four days. On May 5, 2011, the jury found defendant guilty of the lesser-included offense of third-degree criminal restraint, N.J.S.A. 2C:13-2.
On June 23, 2011, the trial judge sentenced defendant. On the endangering the welfare of a child count, the judge sentenced defendant to ten years in prison, with a five-year period of parole ineligibility. On the weapon possession by a convicted person count, the judge sentenced defendant to a consecutive eighteen-month term with an eighteen-month period of parole ineligibility. The remaining counts were merged or run concurrently to the endangering count. This appeal followed.
II.
Defendant's primary contention of prejudicial error concerns the admission of certain letters, portions of which were read to the jury. The State entered into evidence eleven letters in the first trial, portions of which were redacted to exclude any mention of the crime for which defendant was incarcerated. There were two letters from 2003, one from 2004, one from 2006, four from 2007, and three undated letters. In the letters, defendant declared his anger, frustration, and disappointment with Cara for many perceived wrongs both throughout their relationship and since he went to prison. Several of the letters made pejorative remarks about Cara's boyfriend, and threatened to kill him, throw him out a window, and break his face open with a bat. Several letters contained exceedingly graphic threats against Cara's life and well-being, including that she would suffer physical harm; she had better hide, but he would find her; and he would kill her, break her neck, and cut her throat and have her bleed over Ann. In addition, a few letters conveyed defendant's resentment and outright hatred for Ann because she was related to Cara. In a September 2003 letter he threatened to cut Ann's throat just to hurt Cara.
The appendix contains the unredacted letters without any exhibit markings, and defendant's appellate counsel states in the brief that she was unable to obtain the redacted letters, which were reviewed by the jury during deliberations.
Only four letters were admitted in the second trial on the kidnapping charge: one from 2003, two from 2007, and one undated.
Since the judge did not think that N.J.R.E. 404(b) was implicated by any of the letters, he did not give, and defendant did not request, a limiting instruction to the jurors cautioning them not to consider the threats in the letters as proof that defendant was a bad person more likely to commit a crime. During deliberations, the jury sent out a note concerning count eight, terroristic threats, asking "would the jurors convict on this count based on the words written in the letters or only based on what was said during the incident?" Then, for the first time, the judge instructed the jury that
the letters themselves do not constitute the crime with which the defendant is charged. He's not charged with writing threatening letters. They are not the subject of the indictment. You are only to judge whether [Ann] was terrorized on October 17, 2007. However, you may consider the letters to assess the defendant's intent or his motives
at the time of the incident on October 17, 2007.
Defendant primarily argues that the threatening letters he sent to Cara while in prison should have been subject to a N.J.R.E. 404(b) analysis and a Cofield inquiry as they constitute prior bad acts admitted to demonstrate defendant's propensity to commit the charged crimes. Had such an analysis been conducted, defendant alleges the letters would have been excluded as not relevant and unduly prejudicial. Moreover, defendant maintains that even if the letters were admissible, the lack of a limiting jury instruction explaining the narrow permitted use of the evidence constitutes plain error. Further, defendant asserts that the State in its summation improperly utilized the letters as propensity evidence.
On the other hand, the State contends that the judge was correct that the letters did not contain evidence of any crime or wrongful acts and thus were not subject to N.J.R.E. 404(b). Moreover, according to the State, even if they were subject to N.J.R.E. 404(b), they would have been admissible after a Cofield analysis. In addition, the State argues that the letters were properly admitted as res gestae evidence or the more narrow intrinsic evidence of the current crime.
In our view, if the proper analysis been conducted, the majority of the letters, but not all, would have been admissible. However, we are constrained to reverse the convictions for two reasons. First, because no limiting instruction was given, leaving the jury free to use the bad acts for any reason, including a propensity to commit crime, and second, because the 2003 and 2004 letters should not have been admitted as they were too remote and prejudicial.
The conviction for count thirteen must also be reversed. In order to prove weapons possession by a convicted felon, the State must demonstrate the defendant was in possession of a weapon and had previously been convicted of one of the enumerated offenses prohibiting such possession. See N.J.S.A. 2C:39-7(a). In a bifurcated trial, the jury must disregard the convictions they already rendered, but do consider the evidence previously admitted in the first trial. State v. Ragland, 105 N.J. 189, 193-96 (1986). Here, the evidence that defendant possessed a weapon was presented in a trial tainted by improper 404(b) evidence, which also rendered the jury's subsequent verdict on count thirteen improper.
"Evidence relating to other crimes is handled with particular caution." State v. Reddish, 181 N.J. 553, 608 (2004). This is because "other-crime evidence has a unique tendency to turn a jury against the defendant, and poses a distinct risk of distracting the jury from an independent consideration of the evidence that bears directly on guilt itself." Ibid. (internal quotation marks and citations omitted).
N.J.R.E. 404(b) provides in pertinent part:
[E]vidence of other crimes, wrongs, or acts is not admissible to prove the disposition
of a person in order to show that such person acted in conformity therewith. Such 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.
Thus, "[e]vidence of a defendant's other crimes, wrongs, or acts may not be admitted into evidence to prove a defendant's criminal disposition as a basis for proving guilt of the crimes charged." State v. Koskovich, 168 N.J. 448, 482 (2001) (citing State v. Covell, 157 N.J. 554, 563 (1999)); see also State v. Nance, 148 N.J. 376, 386 (1997) (evidence of other crimes, civil wrongs, or acts are inadmissible to show propensity or predisposition); Cofield, supra, 127 N.J. at 336 (other-crime evidence may not be used to "convict the defendant because he is 'a "bad" person in general'" (quoting State v. Gibbons, 105 N.J. 67, 77 (1987))).
While other crime evidence may be admitted for other relevant purposes, "its probative value must not be outweighed by the prejudice resulting from its introduction." Reddish, supra, 181 N.J. at 608 (citing Cofield, supra, 127 N.J. at 338); see also State v. Ramseur, 106 N.J. 123, 265 (1987) ("Evidence of past crimes does not automatically become admissible just because it is relevant to the issue of motive or intent."). The trial court must evaluate the specific purpose of the proffered evidence "'to determine whether the probative worth of the evidence outweighs its potential for undue prejudice.'" Reddish, supra, 181 N.J. at 608 (quoting State v. Stevens, 115 N.J. 289, 303 (1989)). "When the judge engages in the weighing of the probative value of other-crimes evidence, it considers whether other less-inflammatory evidence is available to establish the same issue." State v. Chavies, 345 N.J. Super. 254, 273-74 (App. Div. 2001).
To prevent the improper use of extrinsic evidence of other crimes or wrongs, Cofield, supra, sets out a four-part test to analyze the admissibility of such evidence:
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.
[127 N.J. at 338.]
And "the material issue must be genuinely disputed." Cofield, supra, 127 N.J. at 338.
"When a trial court admits evidence of other conduct to show the defendant's motive, intent, or absence of an accident, 'the court must instruct the jury on the limited use of the evidence.'" Nance, supra, 148 N.J. at 391 (quoting Cofield, supra, 127 N.J. at 340-41). To meet "that standard, a court's instruction must 'be formulated carefully to explain precisely the permitted and prohibited purposes of the evidence.'" Ibid. (quoting Cofield, supra, 127 N.J. at 341). If the instruction is not properly tailored to the case, but merely recites the generalities of the rule, then it will be "clearly capable of confusing" the jury and the jury may use the evidence improperly, thus requiring reversal. Cofield, supra, 127 N.J. at 341-42.
"We review the trial court's evidentiary ruling under a deferential standard; it should be upheld absent a showing of an abuse of discretion, i.e., there has been a clear error of judgment." State v. J.A.C., 210 N.J. 281, 295 (2012) (internal quotation marks and citations omitted). "Under that standard, an appellate court should not substitute its own judgment for that of the trial court, unless the trial court's ruling was so wide of the mark that a manifest denial of justice resulted." State v. Brown, 170 N.J. 138, 147 (2001) (internal quotation marks and citations omitted). However, when the court fails to conduct a necessary Cofield analysis, we need not defer to the trial court's ruling and our review is de novo. State v. Rose, 206 N.J. 141, 158 (2011); Reddish, supra, 181 N.J. at 609.
Here, the trial judge did not conduct an N.J.R.E. 404(b) or Cofield analysis because he concluded that the letters were not evidence of other bad acts or crimes. Instead, he ruled that the only benchmark for admissibility was relevance. We disagree.
We certainly recognize that many of defendant's statements in the letters were relevant and did not concern prior crimes or wrongs, and, as such, were admissible under N.J.R.E. 803(b)(1). However, significant portions of the letters, which contain threats of violence against Cara, her boyfriend, and Ann, should have been analyzed under N.J.R.E. 404(b) as a prerequisite to their admissibility. See Chavies, supra, 345 N.J. Super. at 273-75 (holding that material in diary and letter, particularly references to defendant's drug use and theft of money, were inadmissible under N.J.R.E. 404(b)); State v. Crumb, 307 N.J. Super. 204, 231-36 (App. Div. 1997) (analyzing defendant's racist writings under N.J.R.E. 404(b) prior to admission to prove motive to kill victim as jury could view racist beliefs as other wrongs or acts), certif. denied, 153 N.J. 215 (1998); State v. Buhl, 269 N.J. Super. 344, 364-65 (App. Div.) (holding that letters defendant wrote to fellow inmates to kill victim were properly admitted under N.J.R.E. 404(b) to prove consciousness of guilt), certif. denied, 135 N.J. 468 (1994).
Threats of violence can constitute terroristic threats, N.J.S.A. 2C:12-3, or harassment, N.J.S.A. 2C:33-4, among other wrongs. Defendant's threats may not have risen to the level of crimes, but certainly could have been perceived by the jury as evidence of wrongs or bad acts. See Koskovich, supra, 168 N.J. at 479-87.
In the letters at issue here, defendant did not just express anger at Cara, but threatened violence to her, her boyfriend, and even Ann. Under the first Cofield prong, these threats were relevant to defendant's motive and intention in his treatment of Ann during the incident at issue. See N.J.R.E. 404(b).
Under the second prong, the elements of similarity in kind and closeness in time are not so crucial when, as here, the evidence is introduced to show intent or motive. See State v. Gillispie, 208 N.J. 59, 88-89 (2011); State v. Barden, 195 N.J. 375, 389 (2008). In any event, the letters beginning in 2006 through September 2007 are not too remote in time given that defendant was anticipating a fall 2007 release and was expressing mounting anger and threats at Cara as well as three of the letters that are undated, but appear to be from this period as they referred to defendant's upcoming release. In contrast, the three letters from 2003 and 2004 were too remote in time, and there was a substantial hiatus of two years after these letters and before the more recent letters containing significant threats. Under the third prong, there is no dispute that the letters were written by defendant. Consequently, the 2006 and 2007 letters and the undated letters indicating that defendant was being released soon meet the first three prongs of the Cofield test. The letters from 2003 and 2004 do not.
The fourth prong, which requires balancing the prejudicial and the probative value, weighs against the admissibility of certain letters. The three letters from 2003 and 2004 were not only too remote in time for the second prong; that remoteness renders them much less probative and too prejudicial to be admitted. Crucially, other less inflammatory evidence, i.e., the more recent letters, was available to establish intent and motive. See Chavies, supra, 345 N.J. Super. at 273-74. Thus, while all the letters were prejudicial to defendant, a balancing of prejudice versus probative value requires that the older letters should not have been admitted into evidence.
Moreover, at least one early letter contained extremely inflammatory statements by defendant. The letter dated September 2003 stated, "I will cut your throat with a razor and watch you bleed over [Ann]." Later in the same letter defendant warns "just to rip your heart out, I'll gladly cut her little throat also." Defendant never expressed an intention to physically harm Ann again in subsequent letters.
Moreover, the more recent and less inflammatory letters from 2006 and 2007 were sufficient to demonstrate intent and motive. Significantly, because defendant wrote the more recent letters when his release was close, they were highly probative of defendant's motive and intent regarding his actions during the incident. In addition, we reject defendant's argument that because the threats in those letters were made primarily against Cara and her boyfriend, they were not probative of crimes against Ann. See Nance, supra, 148 N.J. at 389 (permitting evidence of abuse of third person who was not victim to show motive or intent). Consequently, these letters pass a Cofield analysis.
More importantly, the most glaring prejudice to defendant occurred when the jury was not instructed about the permitted and prohibited uses of those letters. Without knowing the limited permissible use, the jury might have used the letters as evidence that defendant was a bad person, had a propensity towards violence, and acted in conformity with his bad character traits on the day of the incident. The letters were an important and integral part of the State's case against defendant in both trials. Indeed, during closing argument in the first trial, the State referred to defendant acting in conformity with his threats. Without a proper limiting instruction, the jury could easily have interpreted the State's comments as urging them to improperly use the letters as propensity evidence to show defendant acted in conformity with the violent threats expressed throughout the letters.
The jurors' genuine confusion can be seen by their question during deliberations as to whether they could convict defendant of terroristic threats "based upon the words written in the letters[.]"
Although defendant did not request a limiting instruction, its absence was nonetheless "clearly capable of producing an unjust result[.]" Rule 2:10-2. Even though the jury acquitted defendant on several counts in the first trial, the entire deliberation process was tainted by the improperly admitted letters. See State v. Kelly, 201 N.J. 471, 492 (2010) (finding that perjured testimony tainted all subsequent convictions and acquittals); State v. Negron, 355 N.J. Super. 556, 578-79 (App. Div. 2002) (reversing where prosecutorial excesses as to the most critical proofs tainted the jury's ability to render a verdict on permissible considerations); State v. Damiano, 322 N.J. Super. 22, 44-45, 50-51 (reversing where incomplete jury instruction on some charges tainted the verdict on all charges).
Consequently, the absence of the mandated and necessary limiting instruction requires reversal of defendant's conviction on all counts. See Cofield, supra, 127 N.J. at 341-42 (reversing where instruction was given, but not tailored); State v. Foglia, 415 N.J. Super. 106, 127-28 (App. Div.) (reversing where bad acts evidence was introduced with no limiting instruction leaving "the jury . . . free to utilize the testimony for an impermissible purpose, i.e., that the defendant was a bad person"), certif. denied, 205 N.J. 15 (2010); State v. Ellis, 280 N.J. Super. 533, 547 (App. Div. 1995) (finding that the absence of a limiting instruction regarding prior bad acts was plain error requiring reversal).
We reject the State's argument that the admission of these letters did not require the limiting instruction because they were admissible under the common law res gestae doctrine or the more limited intrinsic evidence doctrine. See State v. Rose, supra, 206 N.J. at 182. Under both doctrines, the questioned evidence must be evidence of the presently charged crime. See id. at 177-78, 188. The key to the admissibility of evidence of acts or statements under res gestae is that the evidence is integral to the crime charged. State v. Long, 173 N.J. 138, 153-55 (2002) (noting that "where the declaration is concomitant with the main fact under consideration and is so connected with it as to illustrate its character, it may be proved as part of the res gestae" (internal quotation marks and citation omitted)). The intrinsic evidence doctrine requires an act or wrong which directly proves the charged offense or is contemporaneous and facilitates the charges crime. Rose, supra, 206 N.J. at 178-79 & n.19.
Although Rose proscribed the use of res gestae as an independent doctrine, the State argues res gestae as the trial occurred before the Supreme Court's decision in Rose.
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In contrast, in the present matter, the threats in defendant's letters were entirely separate from the time and the incident leading to the crimes for which defendant was being tried and were impelled by circumstances existing at the time. Hence, those bad acts do not constitute "components of the crime that is the subject of the trial." State v. Martini, 131 N.J. 176, 241 (1993), overruled in part on other grounds by State v. Fortin, 178 N.J. 540 (2004). While the letters strongly expressed anger and threatened harm to Cara, Ann, and the boyfriend, we do not view them as demonstrating that the incident that gave rise to these crimes began in 2003 or even in 2006. Rather, they indicated defendant's feelings of anger and generalized thoughts of harming those close to Cara, clear evidence of his motive and intent when the incident occurred.
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