SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-2257-96T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
PAUL COLLIER,
Defendant-Appellant.
Submitted: October 6, 1998 - Decided:
December 1, 1998
Before Judges Pressler, Brochin and Steinberg.
On appeal from the Superior Court of New
Jersey, Law Division, Mercer County.
Ivelisse Torres, Public Defender, attorney for
appellant (Mark H. Friedman, Assistant Deputy
Public Defender, of counsel and on the brief).
Daniel G. Giaquinto, Mercer County Prosecutor,
attorney for respondent (Charles Ouslander,
Assistant Prosecutor, of counsel and on the
brief).
The opinion of the court was delivered by
STEINBERG, J.A.D.
The important issue raised by this case is whether a trial
judge, in admitting other-crimes evidence pursuant to N.J.R.E.
404(b), has the obligation, in order to avoid undue prejudice to
the defendant, to limit the scope of that evidence to those facts
necessary to prove the proposition for which it is offered. We
hold that where the other-crimes evidence is otherwise admissible
but involves inflammatory and other unduly prejudicial facts, the
judge is obliged to require the evidence to be sanitized to the
extent necessary to accommodate both the State's right to establish
a fact in issue and the defendant's right to a fair trial. The
context in which the issue arises here is a prosecution for robbery
and attempted murder in which the State sought to prove that
defendant's motive was retaliation for the victim's having
implicated him in the burning death of a dog belonging to the
victim's cousin. We are satisfied that while some evidence of the
episode was admissible to prove motive, the gruesome details
surrounding the dog's death should not have been admitted since
they were unnecessary to establish motive and were unduly
prejudicial to defendant in terms of the crimes for which he was
standing trial. Accordingly, we reverse and remand for a new
trial.
Following a trial by jury defendant Paul Collier was found
guilty of first-degree robbery of Keeon Burke(N.J.S.A. 2C:15-1)
(count 1); third-degree attempted theft from Keeon Burke(N.J.S.A.
2C:20-3(a) and N.J.S.A. 2C:5-1) (count 2); first-degree attempted
murder of Keeon Burke(N.J.S.A. 2C:11-3 and N.J.S.A. 2C:5-1) (count
3); second-degree aggravated assault (N.J.S.A. 2C:12-1(b)(1))
(count 4); fourth-degree aggravated assault by knowingly under
circumstances manifesting extreme indifference to the value of
human life pointing a firearm, a handgun, at or in the direction of
Keeon Burke (N.J.S.A. 2C:12-1(b)(4)) (count 5); and second-degree
possession of a handgun for an unlawful purpose (N.J.S.A. 2C:39-4(a)) (count 7).See footnote 1
At sentence the trial judge merged count 4 into count 1 and
counts 2, 5, and 7 into count 3 and imposed two concurrent twenty-year terms of imprisonment with ten years to be served without
parole.See footnote 2
In this appeal defendant raises the following issues:
POINT I DEFENDANT WAS DENIED A FAIR TRIAL
WHEN THE TRIAL JUDGE ALLOWED THE
PROSECUTOR TO ADDUCE EVIDENCE AND
THEN COMMENT IN SUMMATION ON
IRRELEVANT AND PREJUDICIAL
INFORMATION THAT KEEON AND KEVIN
BURKE "LAID LOW" AFTER THE DOG
BURNING EPISODE BECAUSE "WORD ON THE
STREET WAS THAT" DEFENDANT AND LANE
WERE "LOOKING FOR THEM." (Partially
Raised Below).
POINT II THE TRIAL JUDGE ERRED IN ALLOWING
THE STATE TO INTRODUCE EVIDENCE OF
DEFENDANT'S ALLEGED INVOLVEMENT IN
THE BURNING OF A PIT BULL ON A PRIOR
OCCASION IN VIOLATION OF N.J.R.E.
404(b) AND 403 AND IN GIVING AN
INADEQUATE LIMITING INSTRUCTION
REGARDING THIS EVIDENCE. (Partially
Raised Below).
POINT III DEFENDANT'S SENTENCE IS MANIFESTLY
EXCESSIVE AND UNDULY PUNITIVE.
We agree with the argument raised by defendant in Point I and
also conclude that the evidence admitted under N.J.S.A. 404(b)
should have been sanitized. We reverse and remand for a new trial.
Accordingly, we do not address defendant's sentence in this appeal.
On June 26, 1995, the victim Keeon Burke, his cousin Kenneth
Burke, and Darnell Thomas were walking their pit bull dogs. They
entered an alleyway on Hermitage Avenue in Trenton. Kenneth and
Darnell released their dogs from their leashes so that they could
play. The victim did not release his dog. The two loose dogs ran
up the alley and began growling at each other. Kenneth and Darnell
ran to grab the dogs, but Darnell's dog, Satan, locked on to
Kenneth's dog's face and then on to his testicles. Kenneth and
Darnell grabbed sticks and separated the dogs. However, Kenneth's
dog was injured and bloody from the fight. Kenneth decided he
could not bring the dog home in that condition because his mother
would not approve of what had taken place. Kenneth asked a number
of persons to take the dog but they all declined. Kenneth and
Darnell then walked the dog back to Stuyvesant Avenue and stayed
there for approximately five minutes. The victim had gone to tie
his dog up. Kenneth continued to ask people to take his dog.
Defendant and his brother Tabika Dawson approached Kenneth and
asked for the dog. Kenneth gave them the dog because he felt that
defendant would care for it since defendant had pit bulls of his
own. Defendant and Dawson took the dog and walked up Christopher
Avenue in the direction of the train tracks.
About ten minutes later, while Kenneth was sitting on his
porch on Hermitage Avenue, a young boy came up to him and said that
there was a dog burning on the tracks. Kenneth thought that it
might be his dog since defendant and Dawson were walking towards
the tracks with the dog when he last saw them. Kenneth went to the
railroad tracks but did not see the dog. He subsequently found out
that it was his dog that was burned. The police responded to a 911
emergency call and found the dog badly burned and mortally wounded.
Neither the victim nor Kenneth were at the scene when the dog died
and had no personal knowledge of who actually set fire to it.
Approximately one week later Kenneth heard from family members
that the police were looking for him and the victim to speak to
them regarding the dog-burning. Kenneth and the victim went to the
police station and spoke separately with the detectives. Kenneth
told the police that he gave the dog to defendant and Dawson, and
provided a written statement to the police regarding the incident.
While Kenneth was giving his statement to the police the victim was
being held in a separate jail cell due to an outstanding traffic
warrant. After Kenneth gave his statement the victim was moved
upstairs to another cell which was next to a cell holding Dawson.
Dawson asked the victim questions about what happened during the
police interview. Dawson appeared concerned about what Kenneth was
telling the police, and the victim attempted to reassure Dawson
that Kenneth had said nothing. Ultimately Kenneth, the victim,
defendant, Dawson, and Andre Lane were charged with the dog-burning
incident.See footnote 3
About three weeks later on the evening of July 18, 1995, the
victim was walking with his girlfriend Coffee Watkins. Watkins
thought she heard a noise coming from a cluster of bushes near the
sidewalk. The couple stopped momentarily but the victim heard
nothing and continued to walk. After the victim had taken several
steps ahead of Watkins, two men wearing hooded sweatshirts and
jeans came out of the bushes carrying handguns. According to the
victim, one assailant wore a brown sweatshirt and black jeans and
the other wore a black sweatshirt and blue jeans. The assailant
with the brown sweatshirt had a chrome colored handgun which he
placed to the back of the victim's head and demanded the victim's
money. Although the assailant made some effort to disguise his
voice, the victim recognized his voice as that of defendant whom he
had known since he was nine years old and had had contact with on
an almost daily basis since that time. The victim thought the
assailant was joking and pushed the gun away from his head several
times, tried to continue walking, and told the assailants to stop
joking.
The other assailant had a black handgun which he also placed
to the victim's head. When the victim told each to stop playing
with him, the second assailant told the victim that they were not
playing and began patting the victim's pockets pulling something
out of the victim's pocket. When the victim turned to look at this
assailant defendant shot the victim in the right side of the head.
The police who were dispatched to the scene, immediately called for
emergency medical assistance. The victim was transported to
Cadwalader Park for air-lifting to Cooper Medical Center in Camden
for treatment. While he was waiting to be air-lifted, he told the
police that defendant and Andre Lane were the persons who had
robbed and shot him. The next day, in the hospital, the victim
made a photographic identification of defendant and Lane. At the
time of trial parts of the bullet still remained in the victim's
head, he suffered from occasional seizures, convulsions, and severe
migraine headaches, and the vision in his left eye was impaired.
Prior to trial the State made known its intention to seek to
introduce evidence regarding the dog-burning incident in an effort
to establish revenge or "street justice" as the motive for the
robbery and shooting of the victim. The State argued that an
inference could be drawn that defendant thought Kenneth and the
victim had implicated him in the dog-burning incident because
defendant knew that Kenneth and the victim had gone to the police
station together and given statements, and that shortly thereafter
they, along with defendant and Dawson, were charged with offenses
arising out of the incident. Accordingly, immediately prior to
trial the judge conducted a hearing pursuant to N.J.R.E. 104(a) to
determine if the evidence was admissible under N.J.R.E. 404(b) and,
if it was admissible, whether it should nevertheless be excluded
under N.J.R.E. 403. The trial judge determined that the evidence
was admissible to prove a motive for defendant to have shot and
robbed the victim. The judge recognized the extreme prejudice to
defendant in light of the nature of the dog-burning incident but
found that its probative value was not outweighed by its potential
prejudice. The trial judge, therefore, ruled the evidence to be
admissible, particularly since there was no other evidence of
motive that would be less prejudicial.
As evidence of the dog-burning incident, the State offered the
testimony of Patrolman Anthony Pasqua, who testified that he
responded to a radio call given to the canine officer of the
Trenton Police Department regarding a report of a group of males
setting fire to a dog. Since the canine officer acts as a one-man
unit, Pasqua proceeded to the location to assist him since the call
indicated more than one person was involved. Pasqua searched the
area and found a pit bull dog lying on its left side that appeared
to be burned on its right side from about its rib cage down to its
tail. He further testified that it was bleeding from several areas
and had lacerations to its anal and genital areas. Pasqua said the
dog's tongue was hanging out of its mouth and it was partly severed
and bleeding. He further testified that the anal area was "torn
up." He further asserted that the dog was smoking as if the fire
had "just went out." The dog was still alive. The dog was also
bleeding from the facial area and had other little scratches and
cuts. The dog died while Pasqua was waiting for the animal control
officer. Pasqua was able to locate the 911 caller, and he
testified that the caller told him that the persons surrounding the
dog had poured lighter fluid on it and had thrown a match setting
the dog on fire. Finally, he testified that the 911 caller turned
away because she was unable to watch the incident.
After Pasqua was excused, a short recess was taken.
Immediately thereafter the trial judge gave the following limiting
instruction to the jury:
Ok. Before we get started again, there is a
brief, what is called a limiting instruction.
That just means that you heard a bit of
evidence, and I'm going to tell you under what
circumstances you can use that evidence.
You just heard testimony concerning the
cruelty to animals that we had talked about,
the dog burning. Defendant is not charged
with the incident. It's necessary at this
time that I remind you of that.
I need, just for clarification purposes, to
say the defendant is not charged here with
that incident. That is not of your concern.
Whether he's charged with that or not in
another court is of no concern to you. He is
not charged here with that incident.
There is a court rule that governs under any
circumstances other prior wrongs or acts may
be considered by a jury. It states as
follows: Other crimes, wrongs or acts.
Evidence of other crimes, wrongs or acts is
not admissible to prove the disposition of a
person in order to show that he 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.
The evidence of the dog incident was
introduced for the sole purpose here of
establishing a motive on defendant's part.
Motive evidence is defined as that which
discloses why a person may have committed a
criminal offense. So that is the sole purpose
for which it is being admitted, not to show
that he did this, or may have done this, so he
probably did something else. It is not to be
considered for that purpose.
You may not conclude that simply because he
may have committed a wrong on another
occasion, that he committed the offenses that
are charged in this indictment. You may,
however, consider this evidence solely for the
purpose, motive which I have explained in
conjunction with all the other evidence as to
defendant's guilt or innocence.
It's necessary under the Rules of Court that I
explain that to you now, and that will be
relevant case law, [sic] and I will explain it
again, remind you at the end of the trial.
and with that said, we will proceed with the
next witness.
That limiting instruction was essentially repeated during the
judge's final charge.
We first consider defendant's contention that the trial judge
erred in permitting the State to introduce evidence regarding
defendant's alleged involvement in the death of the dog and failing
to give an adequate limiting instruction regarding the use of this
evidence. Although we disagree with those contentions we conclude
that the evidence should have been sanitized to minimize its
prejudicial impact upon defendant since he was not on trial for
that offense.
Evidence of other crimes, wrongs, or acts are not admissible
to prove the disposition of a person in order to show that he acted
in conformity therewith. N.J.R.E. 404(b). However, such evidence
may be admitted for other purposes, such as proof of motive when
motive is relevant to a material issue in dispute. Ibid. N.J.R.E.
404(b) makes clear that other-crime or other-wrong evidence is only
admissible if relevant to prove some other fact that is genuinely
in issue. State v. Marrero,
148 N.J. 469, 482 (1997). Evidence is
relevant if it has a tendency in reason to prove or disprove any
fact of consequence to the determination of the action. N.J.R.E.
401.
Although relevant, evidence may still be excluded if its
probative value is substantially outweighed by the risk of undue
prejudice. N.J.R.E. 403. In determining whether to admit evidence
pursuant to N.J.R.E. 404(b) a court must always engage in an
analysis pursuant to N.J.R.E. 403. State v. Cofield,
127 N.J. 328,
336 (1992). The evidence must be material to a fact genuinely in
dispute. State v. Stevens,
115 N.J. 289, 301-02 (1989). Given the
damaging nature of other-crime or other-wrong evidence, a court
should consider whether its proffered use in the case can
adequately be served by other evidence. State v. Marrero, supra,
148 N.J. at 482; State v. Stevens, supra, 115 N.J. at 301. The
evidence must be offered for a proper purpose, must be relevant,
must have probative value that is not substantially outweighed by
the danger of unfair prejudice to defendant, and must be coupled
with a limiting instruction. State v. Cofield, supra, 127 N.J. at
334. The party seeking the admission of other-crimes or other-wrongs evidence must be able to establish the following:
(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.
[Id. at 338.]
Nevertheless, the burden of convincing the court that the evidence
offered pursuant to N.J.R.E. 404(b) should be excluded because its
probative value is substantially outweighed by the risk of undue
prejudice is on the party urging exclusion of the evidence. State
v. Carter,
91 N.J. 86, 106 (1982). That party must show that the
probative value "is so substantially outweighed by [its] inherently
inflammatory potential as to have a probable capacity to divert the
minds of the jurors from a reasonable and fair evaluation" of the
basic issues of the case. State v. Thompson,
59 N.J. 396, 421
(1971). Moreover, since the trial judge has the feel of the case,
he or she has broad discretion to determine whether evidence,
otherwise relevant, should be excluded under Rule 403, and it is
only where there has been a clear abuse of discretion that the
trial judge's decision should be disturbed on appeal. State v.
Marrero, supra, 148 N.J. at 483. On appellate review, the decision
of the trial court must stand unless it can be shown that it
palpably abused its discretion, that is, that the finding was so
wide of the mark that a manifest denial of justice resulted. State
v. Carter, supra, 91 N.J. at 106.
Applying these principles to the facts of this case we
conclude that the trial judge did not abuse her discretion in
allowing the State to introduce evidence regarding the dog-burning
incident. The evidence was relevant to prove defendant's motive
for robbing and shooting the victim whom he had known for a number
of years and with whom his relations had always been friendly. The
State needed to show why defendant would rob and shoot his friend
intending to kill him. The State's theory was that retaliation or
revenge for the victim having implicated defendant in the dog-burning incident provided such a motive. We reject defendant's
contention that the evidence tended to show that Kenneth rather
than the victim implicated defendant in the dog-burning incident.
The victim and his cousin Kenneth both went to the police station
together and spoke to the police. Defendant could reasonably have
believed that both Kenneth and the victim were responsible for
providing the police with information implicating him in the
burning of the dog. Accordingly, the evidence was relevant to
prove motive. Thus, the first Cofield requirement was satisfied.
The dog-burning incident took place on June 26, 1995. The
robbery and shooting of the victim took place on July 18, 1995,
twenty-three days later. Without question, the dog-burning was
reasonably close in time to the robbery. When motive, rather than
pattern, is sought to be shown through other-crime evidence, we are
of the view that similarity between the alleged other act and the
one for which defendant is currently on trial is not a requirement
for admissibility. See State v. Nance,
148 N.J. 376, 389-90
(1997); Biunno Current N.J. Rules of Evidence, Comment 8 on
N.J.R.E. 404 (1998). The second Cofield factor was also thus
satisfied.
Nor can we find that the trial judge abused her discretion
when finding that the evidence of defendant's involvement in the
dog-burning incident was clear and convincing. The trial judge was
not required to find by clear and convincing evidence that
defendant actually was involved in the dog-burning incident. The
mere fact that defendant was charged, presumably as a result of
information given by the victim, was sufficient to supply the
motive. The evidence regarding defendant's belief that he was
implicated by the victim and Kenneth was clear and convincing.
Thus the third Cofield factor was satisfied.
As to the factor of undue prejudice, the fourth Cofield
factor, the trial judge carefully considered whether N.J.R.E. 403
required exclusion of the evidence. The trial judge observed that
other than a crime committed against a child, there are very few
factual patterns that would produce as extreme an emotional
response in the minds of the jurors as the animal abuse here
involved. Nevertheless, the trial judge, although recognizing the
extent of the prejudice, concluded that there was no other evidence
or motive available. She thus held that the evidence should not be
excluded under N.J.R.E. 403. We cannot say that the trial judge
mistakenly exercised her discretion in concluding that the dog
burning episode was admissible to prove motive, see State v.
Marrero, supra, 148 N.J. at 483; State v. Carter, supra, 91 N.J. at
106. We are, however, satisfied that its great potential for
prejudice required the judge to confine its admissibility to those
facts reasonably necessary for that probative purpose, that is, to
sanitize it.
The specific details of all the injuries suffered by the dog,
some or all of which may have been sustained in the fight with the
other dog, coupled with the evidence of gasoline being thrown on
the dog, and the facts of the burning of the dog were unnecessary
to establish defendant's motive to rob and shoot the victim. It
should have been presented to the jury in a more neutral fashion
with much less detail. Although we agree with the State that it
was entitled to show that the offense was serious enough to provide
sufficient motive to rob and shoot the victim, too much detail was
elicited.
We conclude that a trial judge, in admitting other-crimes
evidence that is inherently inflammatory must take appropriate
steps to reduce the inherent prejudice of that evidence by
considering whether it can reasonably be presented to the jury in
a less prejudicial form, and, when necessary, requiring the
evidence to be presented to the jury in a sanitized form. That
sanitizing accommodates the right of the proponent to present
relevant evidence and the right of the objecting party to avoid
undue prejudice. Presenting the evidence to the jury in a
sanitized form would have been sufficient here to satisfy the
State's need to establish motive without compromising defendant's
paramount right to a fair trial. Presenting the evidence in a
sanitized form would have properly protected the interest of the
State in proving motive while minimizing the prejudice to
defendant. Although the evidence of defendant's guilt here was
strong, we cannot conclude that the failure to sanitize the
evidence did not lead the jury to a result it otherwise would not
have reached. Stated another way, we are not confident that the
error was not clearly capable of producing an unjust result. See
R. 2:10-2; State v. Macon,
57 N.J. 325, 326 (1971).
We thus conclude that while the trial judge did not mistakenly
exercise her discretion in ruling that in principle the other-crimes evidence was admissible, she erred in admitting it to the
extent she did. On retrial we direct that counsel first confer in
an attempt to agree as to what should be presented to the jury to
satisfy the State's need to present a motive and still protect
defendant's right to a fair trial. In the event the parties are
unable to agree, the trial judge must conduct a Rule 104(a) hearing
and, after balancing the State's probative needs against the
resultant undue prejudice to the defendant, appropriately sanitize
the evidence to assure that the rights of both the State and
defendant are protected.
This holding is consistent with the views we expressed in
State v. Hardaway,
269 N.J. Super. 627 (App. Div. 1994), when we
reversed defendant's conviction for aggravated manslaughter and
related weapons offenses due to the failure of the trial judge to
minimize the impact of inherently prejudicial evidence to that
which was necessary to satisfy the purpose for which it was
introduced. In Hardaway, supra, in order to establish that three
weeks after the fatal shooting defendant possessed the handgun that
was used to kill the victim, the State produced the testimony of
two robbery victims. Each identified defendant as having committed
an armed robbery upon them and described in detail how defendant
committed the crime, including the fear they felt when defendant
put the handgun to their heads. Id. at 630. They also identified
the handgun. The robbery took place at a night club and was
reported, while in progress, to an Essex County Constable who was
providing security at the club. The constable ran outside to the
parking lot, saw defendant, grabbed him, and threw him to the
ground. He testified that after he handcuffed defendant he rolled
him over and found a handgun in his waistband. We concluded that
although the evidence was relevant to prove that defendant was at
the scene of the homicide, the trial judge, in the course of the
weighing process to determine its admissibility, should have, on
his own initiative, determined the scope and content of the
proffered evidence. Since the State offered the evidence only to
prove that less than three weeks after the homicide defendant
possessed the handgun that was used to kill his victim, that fact
could have been proved by the Constable's testimony alone without
displaying the robbery victims to the jury and having them describe
the terror of the armed robbery. Ibid. See also State v. Lumumba,
253 N.J. Super. 375, 390-91 (App. Div. 1992)(evidence placing
defendant and a co-defendant together and connecting them with a
car on August 25, two days after the murder for which defendant was
on trial, could have been admitted without the wholesale proof of
the facts of the incident of August 25, which included a charge of
attempted murder).
We note that defendant also complains about the judge's
limiting instruction. Considered as a whole, the trial judge's
limiting instruction and jury charge clearly and unambiguously
explained the limited relevance of the other-crime evidence,
specifically advised the jury of the limited purpose for which the
evidence could be used, and advised the jury as to the purpose for
which the evidence could not be used, including an admonition that
the other-crime evidence could not be used to prove defendant's
general predisposition to commit the offenses with which he was
charged. The limiting instructions were appropriate. See State v.
Stevens, supra, 115 N.J. at 309. The problem here was not,
however, with the limiting instruction properly given both after
the other-crimes evidence was admitted and in the final charge.
The problem, rather, was that the other-crimes evidence, as
admitted, was too prejudicial to be subject to cure by any limiting
instruction.
We next consider defendant's contention that he was denied a
fair trial because the prosecutor introduced evidence and then
commented on summation that the victim and Kenneth "laid low" after
the dog-burning incident because "word on the street was that"
defendant and Lane were "looking for them." The subject first came
up during the Rule 104(a) hearing regarding the admissibility of
the dog-burning incident. The following exchange occurred during
the testimony of Kenneth:
Q. Ok. About ten days, eleven days after
that, your cousin, Keeon Burke, got shot in
the back of the head; do you remember that?
A. Yes.
Q. Between the time that you guys got out on
bail for the dog-burning incident, and the
time that Keeon got shot, had you heard
anything or were you told anything or were
there any rumors going around that Paul
Collier and Tabika or Andre Lane were looking
for you?
A. Yes.
Defense counsel: I have
to object to that, your
honor. That's hearsay.
The court: OK, it is
hearsay.
Assistant Prosecutor:
OK.
Q. Between the time that you got out on bail
and the time that your cousin Keeon got shot,
during that time, were you afraid at all of
Paul Collier and Tabika and/or Andre Lane?
A. Yes.
Q. And why were you afraid?
A. Because I told who I gave the dog to.
Q. Because you spoke to the police?
A. Yes.
Q. Was Keeon afraid, too?
A. Yes.
Although the trial judge remarked that the testimony was
hearsay the assistant prosecutor, nevertheless, in front of the
jury, engaged in the following examination of Kenneth:
Q. Between the time that you gave that
statement to the police and the time that
Keeon got shot, what were you guys doing?
A. We were staying low.
Q. Staying low?
A. Yes.
Q. Why?
A. We found out they was looking for us.
Q. Why?
A. Because I gave them a statement.
Q. Gave the police a statement?
A. Yes.
Q. So you guys were laying low?
A. Yes.
Q. Were you afraid?
A. Yes.
Q. Of Tabika and of [defendant]?
A. Yes.
There was no objection.
Thereafter, during the direct examination of the victim, the
following occurred:
Q. During the time between the time that you
got out of jail and the time that you got
shot, did you become worried or concerned or
afraid about [defendant]?
A. I became afraid about all of them because
I received word from several close friends to
the family that they had came looking ..
Defense counsel: I will object.
The court: You can't
tell us what anybody else
said.
The witness: All right.
Q. Were you afraid? Did you become afraid?
A. Yes.
Q. You said all of them. Are you talking
about Tabika?
A. No.
Q. Why not?
A. Because he was locked up still.
Q. Who were you afraid of?
A. I was afraid of [defendant], Andre Lane
and several of his brothers.
Moreover, on summation the prosecutor argued that the word on
the street was that defendant and Lane were looking for the victim
and Kenneth, so the victim and Kenneth laid low. She further
remarked that unfortunately for the victim he didn't lay low
enough. The evidence regarding the victim's fear of defendant was
inadmissible, and the remark by the prosecutor, though fleeting,
was improper. The evidence elicited was hearsay. Its prejudicial
implication was that defendant had formed a retaliatory intention.
To the extent the evidence was offered to show the victim's state
of mind based upon what he heard on the street, it was also
inadmissible because it was immaterial. The obvious danger was
that the jury would consider evidence that might be no more than
unsubstantiated rumor. At retrial the State shall not seek to
introduce this evidence.
We conclude that the error in failing to sanitize the evidence
regarding the dog-burning incident, compounded by allowing the
State to introduce hearsay evidence of street rumors, deprived
defendant of a fair trial. We reverse and remand for a new trial.
In light of this conclusion we deem it unnecessary to comment upon
the sentence imposed.
Reversed and remanded.
Footnote: 1Immediately prior to trial the State dismissed the charge set forth against defendant in count 8 as well as all charges against the co-defendant Andre Lane. Only Lane was charged in count 6. Footnote: 2We also note that the trial judge imposed $50 penalties in favor of the Victims of Crime Compensation Board. Since these were crimes of violence the minimum penalty should have been $100. See N.J.S.A. 2C:43-3.1(a)(1). Footnote: 3Lane is the co-defendant against whom the charges were dismissed prior to trial.