SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
State of New Jersey v. Dwayne Gillispie/State of New Jersey v. Gregory Buttler (A-101-09)(064819)
Argued January 4, 2011 -- Decided June 9, 2011
Judge Stern, temporarily assigned, writing for a unanimous Court.
The Court determines whether the prejudicial value of other-crimes evidence admitted during the trial of defendants Dwayne Gillispie and Gregory Buttler substantially outweighed its probative value because the evidence was not properly sanitized and, if so, whether admitting the evidence was harmless error.
Christine Staton and her adult son, Lonell Michael, were found dead and bound together in Staton’s home in Barnegat (Barnegat murders). Each had been killed by a gunshot wound to the back of the head, and Staton’s throat had been slashed. An investigation led police to three suspects: Keith Mercer, Gillispie, and Buttler. Gillispie and Buttler were indicted on charges of murder, felony murder and robbery.
Before their trials commenced, the State moved to introduce evidence that Gillispie and Buttler had participated in a robbery and shooting that took place at a Bronx barbershop (barbershop robbery) twenty days before the Barnegat murders. The trial court conducted a joint N.J.R.E. 104 hearing to determine whether the other-crimes evidence was admissible. The court heard testimony from Mercer, an alleged accomplice to both the barbershop robbery and the Barnegat murders, who was testifying pursuant to a plea agreement. It also heard testimony from a detective who had responded to the scene of the barbershop robbery and interviewed Gillispie after taking him into custody, a ballistics expert, and a woman who was sharing an apartment with Gillispie. Mercer testified that a gun used during the barbershop robbery also was used to kill Stanton and her son. The detective testified that Gillespie admitted to committing the barbershop robbery and that the same gun was used in both crimes. The ballistics expert also testified that the same gun was used in both crimes. The woman testified that during an altercation, Gillispie pointed a gun at her and stated that he “had to put bullet holes in motherf---ers” to obtain certain jewelry. The court applied the test established for admitting other-crimes evidence in State v. Cofield, 127 N.J. 328 (1992), and found that the test was satisfied because the evidence that the same gun was used in both crimes was relevant to identifying Gillispie as the person who committed the Barnegat murders. Although the court acknowledged that the evidence was prejudicial, it concluded that the probative value outweighed the prejudice.
Gillispie and Buttler were tried separately. At Gillispie’s trial, testimony by multiple witnesses linked him to the Barnegat murders. Among these, Mercer testified about Gillispie’s killing of Staton and her son, Gillispie’s plan to rob drug dealers, and details of the barbershop robbery, including Gillispie’s shooting of three individuals during that crime. The ballistics expert testified that the same gun was used in both crimes. The detective who responded to the scene of the barbershop robbery testified about the shooting of the individuals, the extent of their wounds, the procedures he used to collect shell casings, and his interview with Gillispie, in which the defendant essentially admitted that he committed both crimes. The woman who shared an apartment with Gillispie also testified concerning her altercation with him over items of jewelry and his admission to putting “bullet holes” in individuals to obtain them. Mercer’s testimony at Buttler’s trial was similar to his testimony at Gillispie’s trial, and the detective testified again in detail about what he observed when he arrived at the scene of the barbershop robbery and his collection of evidence. The two juries found Gillispie and Buttler guilty on all charges.
In an unpublished opinion, the Appellate Division reversed the convictions and remanded for a new trial. Applying the Cofield test, the panel agreed that the use of the same gun in both shootings linked defendants to the Barnegat murders, was relevant to identity, and was properly admitted. However, the panel determined that the admission into evidence of details about the barbershop robbery and shooting of three people was prejudicial and was not outweighed by probative value. The panel held further that the error was not harmless, warranting a new trial. Finally, the panel addressed issues in Gillispie’s appeal that were likely to recur on retrial. The panel found improper the woman’s detailed recitation of her altercation with Gillispie, but did not suggest that his admission that he stole jewelry from the victims was improper. The panel also advised that, on retrial, the court should instruct the jury to take into account Mercer’s plea agreement when assessing his credibility, and that the plea is not substantive evidence of Gillispie’s guilt. The Supreme Court granted the State’s petition for certification. 203 N.J. 92 (2010).
HELD: Although the admission at trial of other-crimes evidence that provided unnecessary details of an earlier crime was unduly prejudicial and was not outweighed by any probative value, the error was harmless because there was independent, overwhelming proof that defendants Gillispie and Buttler were guilty.
1. Trial court decisions to admit other-crimes evidence will not be reversed absent a finding of abuse of discretion. N.J.R.E. 404(b) states that such evidence may be admitted to prove motive, intent, preparation, plan, knowledge, identity or absence of mistake when such matters are relevant to a material issue in dispute. Cofield established a test for the admissibility of other-crimes evidence: 1) the evidence of the other crime must be relevant to a material issue in dispute; 2) it must be similar in kind and reasonably close in time to the offense charged; 3) the evidence must be clear and convincing; and 4) the evidence’s probative value must not be outweighed by its apparent prejudice. If a defendant is connected to a weapon or disguise used in a prior crime, it can identify him or tie him to a similar event. (pp. 30-33)
2. With regard to Cofield’s first prong, State v. Fortin, 162 N.J. 517 (2000), applied a stricter test for situations in which a “signature crime” is alleged and other-crimes evidence relates to the issue of identity. Fortin does not apply to this case, however, because it does not involve a signature crime. Given the evidence linking Gillispie and Buttler to the barbershop robbery, the fact that ballistics testing revealed that the gun used in the barbershop robbery was the same as the gun used in the Barnegat murders is highly relevant to the disputed material issue of identity. As such, the first prong of the Cofield test was met. The second prong of the test is irrelevant in this case, and the third prong was met by the testimonies of the detective and the ballistics expert, and by Gillispie’s own statement. (pp. 33-37)
3. With regard to Cofield’s fourth prong, it was relevant and probative to link the weapon used by Gillispie in the barbershop robbery to the Barnegat murders to identify Gillespie as the shooter in both crimes. However, the jury was not merely informed that the same gun was used for both crimes, and there was no excuse for admitting the details of the barbershop robbery. The Appellate Division corrected held that admitting those details was unduly prejudicial and not outweighed by any probative value. (pp. 37-42)
4. Other-crimes evidence must be appropriately sanitized, and a firm and clear jury instruction for such evidence is important due to its inherently prejudicial nature. Here, the trial court gave an instruction that encompassed identification, motive and plan. Instead, the trial court should have instructed that the evidence of the barbershop robbery (including evidence of a shooting which led to the police possession of the cartridge casings, limited to its essentials) be considered only for the limited purpose of tying the murder weapon to defendants. (pp. 42-43)
5. Despite the errors, Gillispie and Buttler both received fair trials. Overwhelming proof of guilt was submitted in both trials, independent of the other-crimes evidence and beyond the evidence proffered through Mercer. Gillispie admitted to the detective that he was the guy who committed the Barnegat crimes and other witnesses substantiated that admission. Although the case against Buttler presents a closer call, the critical issue was whether he was Gillispie’s accomplice, and the proofs on that issue were undeniable. (pp. 43-45)
The judgment of the Appellate Division is REVERSED, and the matter is REMANDED for disposition of the issues not decided by that court.
CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, ALBIN, RIVERA-SOTO and HOENS join in JUDGE STERN’s opinion.
SUPREME COURT OF NEW JERSEY
A- 101 September Term 2009
064819
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
DWAYNE GILLISPIE,
Defendant-Respondent.
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
GREGORY BUTTLER,
Defendant-Respondent.
Argued January 4, 2011 – Decided June 9, 2011
On certification to the Superior Court, Appellate Division.
Roberta DiBiase, Assistant Prosecutor, argued the cause for appellants (Marlene Lynch Ford, Ocean County Prosecutor, attorney; Michel A. Paulhus, Executive Assistant Prosecutor, on the brief).
Alan I. Smith, Designated Counsel, argued the cause for respondent Dwayne Gillispie (Yvonne Smith Segars, Public Defender, attorney).
Michael J. Confusione, Designated Counsel, argued the cause for respondent Gregory Buttler (Yvonne Smith Segars, Public Defender, attorney).
JUDGE STERN (temporarily assigned) delivered the opinion of the Court.
We granted certification, following the Appellate Division’s reversal of defendants’ murder convictions at separate trials, to determine the State’s obligation to “sanitize” the details of “other-crimes” evidence introduced under N.J.R.E. 404(b) to prove defendants’ identity. During defendants’ trials on offenses related to a double homicide that occurred in Barnegat on the evening of November 28, 2000, the State introduced other-crimes evidence concerning a robbery that had occurred at a barbershop in the Bronx twenty days earlier. The evidence established that the same handgun was used to perpetrate both the barbershop robbery and the subsequent murders, and the trial court admitted evidence of the barbershop robbery because it was deemed relevant to the disputed issue of identity.
In a consolidated opinion, the Appellate Division held that the prejudicial value of the other-crimes evidence substantially outweighed its probative value because the evidence was not properly sanitized. Furthermore, because the erroneous admission of the “other-crimes” evidence did not constitute harmless error, the panel reversed both convictions and remanded for a new trial.
We reverse the Appellate Division’s judgment, and remand to that court for consideration of the other issues raised by defendants but not considered in light of its disposition.
I.
On November 29, 2000, Christine Staton (Staton) and her twenty-five-year-old son, Lonell Michael (Michael), were found dead and bound together in her bedroom. Each had been killed from a gunshot wound to the back of the head. Staton’s throat had also been slashed. The ensuing investigation led police to three primary suspects: defendant Gregory Buttler (Buttler), defendant Dwayne Gillispie (Gillispie),1 and Keith Mercer (Mercer). On July 27, 2004, Gillispie and Buttler were indicted for first-degree conspiracy to commit murder; second-degree conspiracy to commit armed robbery; two counts each of capital murder, felony murder, first-degree robbery, and second-degree burglary; second-degree possession of a weapon for an unlawful purpose; third-degree unlawful possession of a weapon; and third-degree theft.2
Before their trials commenced, the State moved to introduce evidence that defendants had participated in a robbery and shooting that took place at a Bronx barbershop twenty days before the Barnegat murders. The trial court conducted a joint N.J.R.E. 104 hearing to determine whether the other-crimes evidence was admissible. At that hearing, the State called four witnesses: Mercer, an alleged accomplice to both the barbershop robbery and the Barnegat murders who was testifying against defendants pursuant to a plea agreement; New York City Detective Kevin Mojica, who had responded to the scene of the barbershop robbery and subsequently interviewed Gillispie after taking him into custody; Detective Kevin Barry, a ballistics expert; and Sol Cepero, a woman who had been sharing an apartment with Gillispie at the time that these crimes were committed.
At the N.J.R.E. 104 hearing, Mercer detailed his involvement with Gillispie and Buttler in the barbershop robbery, including the use of a gun that was also used to kill Staton and Michael. Detective Mojica testified that after Gillispie was arrested for the barbershop robbery, he admitted to committing it with an “accomplice.” When told detectives from New Jersey wanted to talk with him about an incident there, Gillispie stated, “probably [the] same gun was used;” he then remarked, “[t]ell Jersey the guy you locked up is the guy who did the shooting in Jersey.” However, Gillispie never implicated Buttler in his interview with Detective Mojica.
Next, Detective Barry testified and concluded, based on his expert examination of bullet cartridge casings, that the same gun had been used in both the barbershop robbery and the Barnegat murders. Finally, Cepero testified that on the morning after the Barnegat murders, Gillispie angrily confronted her, saying that someone had taken a ring from his pocket the night before -- the ring being one shown to her following the murders. When Cepero’s boyfriend intervened,3 Gillispie struck the boyfriend in the head with the butt of a pistol and caused substantial bleeding. Cepero also testified that during this altercation, Gillispie pointed the gun at Cepero, cursed at her, and said, “I had to put bullet holes in motherf---ers” for the jewelry.
At the conclusion of the N.J.R.E. 104 hearing, counsel for both Buttler and Gillispie reiterated their continuing objections to admission of the evidence. However, the trial judge determined that, while the evidence “may be a part of a plan and it might be part of intent or proof of motive . . . the key issue here and the key exception, if you will, to the exclusion is the identity issue.” The court found that the admission was controlled by, and satisfied, the four-prong test established by State v. Cofield, 127 N.J. 328 (1992). It found the first prong of Cofield was satisfied because the other-crimes evidence was relevant to the issue of “identity as to whether or not Defendant Gillispie is the person who committed this crime.” The court found the second prong -- conduct similar in kind and close in time -- was satisfied because both crimes were robberies of drug dealers, in which weapons were used and the incidents occurred within twenty days of each other. Prong three was deemed satisfied because Detective Barry’s “expert testimony” made it “unquestionably clear and convincing” that the same gun was used in both robberies and was “strongly corroborative” of Mercer’s testimony.
As to the fourth Cofield prong -- whether the probative value of the evidence was outweighed by the prejudice to the defendant -- the court acknowledged that all evidence offered by the State “is prejudicial by its nature.” Nevertheless, the court also stated that the probative value of the evidence at issue was “extremely strong” as it was “directly related to [the] material issue of identity.” Therefore, the court concluded by ruling that it was “clearly convinced that the probative value [of the other-crimes evidence] clearly and definitely outweighs any prejudice to the defendant[s],” and found the other-crimes evidence to be admissible at trial.4
II.
After the pre-trial proceedings concluded, defendants’ cases were severed for purposes of trial. The relevant evidence introduced at Gillispie and Buttler’s respective trials is described below.
A.
Gillispie’s Trial
At Gillispie’s trial, Mercer testified about the Bronx robbery and the Barnegat murders. He testified pursuant to a plea agreement and provided an exhaustive account of the events that transpired on the day of the Barnegat murders, including the details of Gillispie cutting Staton’s throat in an effort to get Michael to disclose where the money was kept, and then shooting Staton and Michael in the head through a pillow.
Michael’s girlfriend, Heather Ballman, testified that on November 28, 2000, Michael spoke to someone on his cell phone around 10:00 p.m. and then hurriedly asked Ballman to drive him to Cumberland Farms in Barnegat. Ballman testified that she last saw Michael getting into a dark colored car with Virginia license plates. At trial, the State further demonstrated that, after further investigation, the Ocean County Prosecutor’s Office obtained information from Michael’s cell phone records indicating that the last call Michael had received was from a phone registered to an individual named Shawnta Watkins.
Two detectives traveled to the Bronx, where Watkins lived, and within several minutes they observed a black Lexus with Virginia plates near Shawnta’s residence being driven by Buttler. Shawnta advised the police that while the cell phone in question was purchased by and registered to her, it was actually used by her sister, Janyce Watkins. The police interviewed Janyce and recovered from her a diamond ring that matched a photograph of a diamond ring found in an appraisal folder at Staton’s home.
Janyce Watkins confirmed those events through her testimony. She testified that, in November 2000, Buttler and Gillispie had discussed robbing a New Jersey drug dealer, and that the dealer would have to be killed because he knew Gillispie. Janyce also testified that on November 28, 2000, the day the murders took place, Buttler asked her to connect him (using a three-way dialing option on her cell phone) to a cell phone number that had a “609” area code. While listening in on the call, she overheard what she believed to be Buttler entering into a gun transaction with the party from New Jersey. Later that night, around 10:00 p.m., when Buttler was in New Jersey, he called Janyce, who was at home in the Bronx, and asked her to connect him once again to the “609” number from earlier. Janyce complied, and overheard Gillispie and the “609” party agreeing to meet at Cumberland Farms. Janyce then testified that, later that night between 1:00 and 2:00 a.m., she met Buttler at a hotel in the Bronx where he gave her a diamond ring -- which he admitted to acquiring by tying up, robbing, and killing two people from New Jersey.
Michael Kreybig, another State’s witness, also placed Gillispie near Barnegat on the night of the murders. He testified that he sold drugs for Gillispie and that on November 28, 2000, he met with Gillispie near Barnegat and paid him $800. Kreybig further testified that, on the night in question, Gillispie was with two other men and was driving a black Lexus with Virginia license plates.
The State also called witnesses to establish that, twenty days before the Barnegat homicides, Gillispie and Buttler committed the attempted robbery of a barbershop in the Bronx, during which several people were shot but not killed.
Mercer began his testimony by indicating that he first met defendant Buttler in Lewisburg Penitentiary around August 1994. Mercer remained an “associate” of Buttler’s -- serving a subsequent prison term in New Jersey with Buttler -- until the spring of 2000, when they were both released from prison. Around August 2000, Buttler contacted Mercer to ask whether Mercer knew any drug dealers that they might be able to rob. Mercer testified that Buttler told him not to worry about any robberies coming back to Mercer, because -- in Mercer’s opinion -- Buttler was prepared to “kill” any drug dealers that he robbed. Mercer also stated that in October 2000, he rode with Buttler and Janyce Watkins in a black Lexus with Virginia plates to investigate a potential robbery target, but nothing came of that venture.
Mercer testified that, over the course of several months, Buttler continued asking about potential targets until eventually, in November, Buttler solicited Mercer’s assistance in robbing a “hair salon [or barbershop] in the Bronx.” Mercer admitted that he agreed to participate, and that he met up with Buttler to carry out the plan. At this point, Mercer testified that Buttler introduced him to Gillispie, who would also participate in the robbery, and Mercer identified Gillispie in court. Mercer testified that the barbershop was selected because there was supposed to be a supply of marijuana in the basement, and no “resistance” was expected.
Mercer explained how he and Gillispie carried out the robbery:
[Gillispie] came in 30 seconds -- not long, right behind me. . . . And [Gillispie] was, like, on the count of ten, you know, we could take the place over. So he started counting, taking deep breaths: one, two. And by the time [a male patron] had got out of the chair and left, he had got to ten and pulled his gun out and got the guy that was getting ready to do his hair.
. . .
We were supposed to take them to the back, ‘cause the marijuana was supposed to have been down in the basement. So we was going to take them in the back, and secure everyone in the back, and just go right down in the basement and take the weed, the marijuana.
. . .
By the time -- I had about two girls in front of me and I think maybe the girl that was getting her hair done. And [Gillispie] had moved everyone else to the back. There was a little step that you had to go up to, to get to the back area all the way in the back. . . . And in not too long, I just hear a bunch of shots, a lot of shots just start ringing out, boom, boom, boom, boom, boom.
Mercer testified that he and Gillispie immediately “took off” and fled the scene without taking any proceeds. Mercer indicated Buttler was upset that Gillispie had “shot up the place” and that they “came out of there empty-handed.”
The State also called Detective Barry as a ballistics expert in order to show that the same gun used in the barbershop robbery was also used in the Barnegat murders. Barry’s ultimate conclusion was: “The total of five cartridge casings or shell casings from the hair salon, I compared to the two from New Jersey, and I found that the total of seven cartridge casings were all fired from one gun, the same gun.” In support of that conclusion, the State elicited more specific testimony regarding the barbershop shell casings:
A: I received a total of five .40 caliber cartridge casings, or discharge shells, and two bullets, .40 caliber bullets.
. . .
A: This, again, is a property invoice, and it’s numbered K-615274 and it describes property which I examined.
Q: What did you examine?
A: It was a .40 caliber bullet.
Q: Recovered from?
A: Recovered from the victim in the Bronx.
[(emphasis supplied).]
Detective Mojica was called during Gillispie’s trial as one of the officers that responded to the scene of the barbershop robbery in New York. He testified that “there were several people that were shot at that location.” Mojica provided detailed testimony regarding his observations upon reaching the crime scene in the Bronx:
A: . . . [T]here was a male being taken out on a stretcher at that point.
. . .
A: . . . [W]hen you walked toward the back of the location, there was blood on the floor on top of a couple of shell casings.
Q: And how -- how many shooting victims were there?
A: There was three, total.
. . .
A: The worst one was Christopher Folks. He was shot -- he was shot four times. There was a Keith Adams shot in the leg area, and a Valerie McCloud, also shot in the leg area.
. . .
Q: And what was the nature of Chris Folks’ injuries?
A: Oh, he was the worst off.
. . .
Q: Did anybody die as a result of the shooting in the barbershop in the Bronx?
A: No, sir.
Mojica then testified regarding the procedure he employed to collect and properly preserve evidence, such as the shell casings and discharged bullets. During this aspect of his testimony, Mojica was questioned specifically about one copper round that was apparently recovered from a victim at the scene:
Q: Okay. And what is that form -- what does that form voucher? What’s the property that’s listed on the form?
A: One copper round. I vouchered it.
Q: And who recovered that copper round?
A: I did.
Q: Okay. And where did you recover it?
A: It was at the crime scene.
Q: Where, specifically, at the crime scene?
A: Outside of the location. My understanding was that it fell out of the body.
Q: Of who?
A: Mr. Folks.
[(emphasis supplied).]
Eventually, Detective Mojica had the opportunity to interview Gillispie regarding the barbershop robbery, and Mojica testified at length about what happened during the interview. Mojica testified that Gillispie told him the following:
At the time [of the robbery, Gillispie] was getting everybody to the rear of the barbershop, every -- most people complied and were cooperative with him. . . . When [a male in the barbershop] invaded his space, at that point Mr. Gillispie struck him with the firearm. At that point he indicated that he let one round go, and it went into the air, and four other rounds hit the male.
Over objection, the State then had Mojica read directly from Gillispie’s hand-written statement regarding the barbershop incident. The statement had been admitted into evidence, and provided:
A: “[I]n early November, I received a tip that a barbershop had just received a large quantity of weed. An associate and I went into the barbershop. . . . I pulled out a gun and demanded everyone to move to the back. While everyone was on my left and about to proceed to the basement which supposed -- supposedly stored the weed, a man bumped into me diagonally from my right rear. I said to the man, ‘What the f[--]k are you doing?’ At this point, he put his hands shoulder high. However, we were in very close proximity, so I hit him with the gun and took a step back. At this point he moved towards me, and we made physical contact. Somehow a shot went in the air, and approximately five more were fired, three to four hitting the same man, and two hitting two other individuals.”
When Mojica finished questioning Gillispie about the Bronx barbershop robbery, he told Gillispie that detectives from New Jersey were there to speak to him. Mojica stated that Gillispie’s response to this was, “[p]robably the same gun was used.” Mojica’s testimony continued:
Q: And had you -- did you say something to [Gillispie] in response to that?
A: At that point, I said, “Talk to the guys in Jersey. Just -- they are here, just talk to them.” At that point, he looks me dead in the face, and he goes, “Tell Jersey” -- and he is pointing at me, and he says, “Tell Jersey the guy you locked up,” and he points at me, and I’m like -- “the guy you locked up is the guy who did -- who shot the people in New Jersey.” And he goes, “The guy you locked up,” and he’s pointing at me, and he points at him, so he goes back and forth. And at this point, it’s one of -- still to this day, and I say it out of all the interviews, it’s one of the most chilling statements that I’ve ever, you know, received from somebody.
. . .
Q: Is -- what did the defendant say when he was pointing at you, and what did he say when he was pointing at himself?
[Objection overruled.]
A: “The guy you locked up” -- I’m sorry. “The guy you locked up is the guy who shot the people in New Jersey.” (The witness demonstrates.)
Sol Cepero testified at Gillispie’s trial only. She lived in the same apartment as Gillispie, and she testified that around 1:30 a.m. on the night of the murders, Gillispie, a man she knew as his “uncle,” and another man went into Gillispie’s room. She testified that the other two men stayed there for about twenty minutes before leaving. Cepero testified that Gillispie then came to Cepero and her boyfriend, who had been watching TV, and showed them “some rings.” Cepero testified that Gillispie asked them what they believed he could receive for the rings if he took them to a pawn shop. She suggested he would receive only “bullshit money” for the diamond ring from a pawnshop, and he should give it to his girlfriend instead.
At approximately 8:30 a.m. the next morning, Gillispie came out of his bedroom and Cepero testified that the following exchange occurred:
Q: All right. And when [Gillispie] comes out, what if anything does he say to you? Tell us the conversations.
A: Sol, has anyone -- was anyone here last night? And I answered no. And he just kept asking me that question . . . . So as he kept asking me, he was getting angrier.
. . .
A: So I -- one of the times he came out, I saw my daughter’s father give me a sign behind him, like trying to calm me down, and I looked at him, and he gave me a sign that he had a gun in his back pocket.
Q: Who’s giving you the sign?
A: My daughter’s father. He told me something --
[Hearsay objection overruled.]
. . .
A: He came out telling me -- asking me if anyone had been in the house, and I answered no. And he kept on asking me the same question . . . with a tone in his voice, so I knew . . . he was insinuating something. . . And then he said: Well, you know what? The rings were missing from his room.
Cepero continued to testify about the argument she had with Gillispie concerning the missing jewelry. Eventually, Cepero testified that Gillispie grabbed her boyfriend by his neck, took out a gun, and hit her boyfriend on the head with the butt of the weapon, causing the man to bleed “a lot” from his head. The argument continued, and Cepero testified that Gillispie pointed the gun at her, and “start[ed] cursing at me and then telling me, oh, you f-----g people, you don’t even know, I had to put bullet holes in motherf---ers for this shit, for the rings.”
B.
Buttler’s Trial
At Buttler’s trial, Heather Ballman, Janyce Watkins, and Michael Kreybig gave essentially the same testimony they gave at Gillispie’s trial. As mentioned above, Sol Cepero did not testify at Buttler’s trial.
Mercer’s testimony during Buttler’s trial was also similar to his testimony at Gillispie’s trial.5 He explained in more detail, however, a conversation he had with his co-conspirators after the failed robbery in the Bronx:
Q: What conversations transpired when you got in the car?
A: [Buttler] started going off. Yo, listen, man -- you know, telling [Gillispie], Why you shoot the place up? You know, so [Gillispie] was blaming me saying I let the guy come up and approach him.
. . .
A: Some -- one of the guys I think he thinks tried to lunge for his gun, and that’s why he started shooting.
In Buttler’s trial, the other-crimes testimony was elicited from the ballistic expert, Detective Barry, in the same manner as in Gillispie’s trial. However, the following question was also asked by the prosecutor:
Q: Okay. Now, if I were to tell you the jury has already heard from Detective Mojica that that was the bullet that literally fell out of one of the victims at the barbershop, could you tell us, did you examine that?
A: Yes I did.
However, that bullet “did not have sufficient markings on it to indicate [whether] it was fired from [the] same gun or not.”
The testimony of Detective Mojica, the responding officer at the Bronx barbershop shooting, was more abbreviated during Buttler’s trial because there was no confession to introduce. But the other-crimes testimony was largely the same. Detective Mojica again testified as to the scene when he arrived at the barbershop:
Q: Can you describe the scene for us when you arrived there, detective?
A: Wow. There were several uniformed officers on the scene. There was an ambulance at the location. There were several people shot. . . . And the most severe person, Christopher [Folks], who was shot, was being treated by the EMS.
Q: Okay. And how many times was he shot, detective?
A: Four times. When I arrived to the scene, they were bringing him out on the stretcher. His eyes were rolling back. His chest was open, so you saw a bunch of -- you could see actually the entrance wounds. At that time, the uniformed officer, the first uniformed officer on the scene, secured the location. And there was another ambulance arriving at the same time, so -- to treat the other people who were shot.
Mojica continued to explain how he processed the ballistics evidence at the scene. The copper-round was again addressed:
A: It’s one copper round that when Mr. [Folks] was being treated by EMS, they were pulling him out of the store, and -- the store, the glass front, they were pulling him out. He was on a stretcher, and they hit the sidewalk. So he comes down on the sidewalk, and then they have to pick him up to put him inside the ambulance. And when they put him inside the ambulance and they lifted him up on the gurney, I don’t know how, but it falls out of his body, this copper round.
Q: You saw that happen?
A: I picked it up.
III.
A jury found Gillispie guilty on all counts charged, but did not reach a unanimous verdict as to the penalty. Following merger, Gillispie was sentenced to two consecutive terms of life imprisonment without parole for the murders of Stanton and Michael, a term of five years imprisonment for unlawful possession of a weapon, and a term of ten years imprisonment, with 85% to be served before parole eligibility, on the two burglary counts. The sentences on the weapons offense and the burglaries were made to run concurrently to each other, but consecutively to the second life sentence.
The capital prosecution of Buttler was not pursued. A separate jury found him guilty on all charges. He was sentenced to two consecutive terms of life imprisonment with thirty years of parole ineligibility on each of the two counts of purposeful or knowing murder. The judge also imposed a five-year term for unlawful possession of a weapon, and a ten-year term of imprisonment on each count of burglary. These sentences were to run concurrently to each other, but consecutively to the two life sentences.
In an unpublished opinion, the Appellate Division reversed defendants’ convictions and remanded for a new trial. The panel acknowledged that “[t]he admission of other-crimes evidence is left to the sound discretion of the trial court because it is in the best position to perform the balancing necessary under the Cofield test due to its intimate knowledge of the case.” Using that standard, the panel turned to the four-part test articulated in Cofield to determine whether the admission of evidence pertaining to the barbershop robberies was proper.
The panel stated that the first prong was satisfied because the same gun was used in both shootings. The panel found that this convincingly linked defendants to the Barnegat murders. As such, the other-crimes evidence was indeed relevant on the disputed issue of identity. However, the panel explicitly rejected the State’s contention that the other-crimes evidence was relevant to the question of plan because the barbershop robbery was not part of a sufficiently “integrated plan or scheme.” The panel also concluded that the evidence was irrelevant to the issue of motive because the barbershop robbery merely evinced a “general propensity to commit violent robberies.”
The panel found that the other-crimes evidence failed the second prong of Cofield, however, because the two crimes at issue were “very different.” Nevertheless, the panel acknowledged that the second prong does not need to be satisfied in every case. Because “defendants’ connection with the gun and not the similarity of the crimes was the reason for admitting the evidence,” the panel determined the second prong was not relevant for its analysis.
The panel found that the third prong was also satisfied because the evidence relating to the Bronx barbershop shooting was demonstrated in a “clear and convincing” fashion. In fact, Mercer’s testimony alone, if believed by the jury, was deemed to be more than sufficient to meet that standard. In addition to Mercer’s testimony, however, “the record also contained Gillispie’s statement to Officer Mojica.”
The fourth prong of Cofield requires that the probative value of the other-crimes evidence outweigh its prejudicial effect. The panel held that the probative value of the ballistics match outweighed its prejudicial value. However, because the trial court did not “take appropriate steps to reduce the inherent prejudice of that evidence by considering whether it [could have been reasonably] presented to the jury in a less prejudicial form,” the court concluded that admission of the details surrounding the barbershop robbery was unduly prejudicial.
In sum, according to the panel, “the proofs of defendants’ involvement with the gun used in an earlier incident was properly admitted into evidence. However, evidence about the details of the incident and the shooting of three people was prejudicial and not outweighed by any probative value, and was not properly admitted into evidence.” The panel further concluded that the error was not harmless, reversed the convictions, and remanded for a new trial.
Additionally, the panel briefly addressed two issues in Gillispie’s appeal that were likely to recur on retrial. In short, the panel found that Cepero’s testimony concerning Gillispie’s conduct the day after the killings -- striking Cepero’s boyfriend with the butt of his gun and causing him to bleed -- was improperly admitted as part of the “res gestae” connected with his statement that he had to “put bullet holes in [people] for the rings.” There was no suggestion that the admission of the rings stolen from the victims was itself inadmissible.
Finally, the panel also stated that, on retrial, the trial court should “instruct[] the jury that it must take into account Mercer’s plea agreement when assessing his credibility and that Mercer’s guilty plea is not substantive evidence of Gillispie’s guilt,” relying on our recent opinion in State v. Adams, 194 N.J. 186, 208 (2008).
As noted at the outset, we granted the State’s petition for certification. 203 N.J. 92 (2010).
IV.
The State contends that the trial court’s failure to adequately sanitize the otherwise admissible other-crimes evidence was “harmless in light of overwhelming evidence of both defendants’ guilt.” In advancing this argument, the State claims that had the trial court sanitized the evidence, only an insignificant amount of testimony would have been excluded. The State further contends that there is ample remaining evidence to implicate defendants, as relevant to each trial, including: Gillispie’s admission to Mojica that he was the “guy who did the shooting in Jersey”; Janyce Watkins’s testimony that she heard Gillispie and Buttler planning the robberies and murders; Michael Kreybig’s testimony indicating that he met Gillispie, driving a black Lexus with Virginia plates, in Barnegat on the night in question; Mercer’s detailed testimony concerning the sequence of events on the day of the Barnegat killings, including his graphic description of the actual murders; various testimony indicating that phone records linked Michael to Buttler on the night of the murders; Cepero’s testimony concerning the rings and Gillispie’s statement to her that he shot someone to obtain them; and Heather Ballman’s testimony that she dropped Michael off at Cumberland Farms to meet someone driving a black Lexus with Virginia tags. According to the State, this clearly admissible evidence provided overwhelming proof of the guilt of both defendants without any need to refer to the details of the Bronx robberies.
The State further argues that Gillispie’s use of the gun in striking Cepero’s boyfriend should be considered a statement against interest and was therefore appropriately admitted into evidence. The State claims that Gillispie’s wielding of the gun was “an explicit yet nonverbal threat that, having shot people before, he would shoot again if necessary to reclaim his bounty.” Alternatively, the State contends that even if this evidence was improperly admitted, its admission constitutes harmless error, in light of the overwhelming evidence of Gillispie’s guilt.
Finally, the State contends that any omissions in the jury c