(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).
Argued February 17, 1999 -- Decided March 24, 1999
GARIBALDI, J., writing for a unanimous Court.
Covell was convicted of child luring in violation of N.J.S.A. 2C:13-6. At issue in this appeal is
whether Covell's statement to police officers about an alleged prior act of lewdness that occurred sixteen
months before the offense for which he was convicted was properly admitted in evidence.
A.P., an eight-year-old girl, was riding her bicycle alone on the sidewalk outside of her home in
Perth Amboy. A man pulled up in a blue car and beckoned her by motioning with his right index finger.
A.P. shook her head "no" and continued riding. When A.P. rode past the man again, he motioned to her
with a waving gesture. Finally, when A.P. rode past the man a third time, he motioned to her and said "get
in the car before somebody sees you." A.P. refused and continued riding her bike until called by her mother.
Ramon Taveras, a cousin of A.P.'s mother, lives in the area. He testified that he saw a Caucasian
man matching Covell's description in a blue car, calling to A.P. and beckoning to her. When Taveras
approached the blue car, it sped off. Taveras followed the car and wrote down the license plate number.
When he returned home, he spoke to A.P.'s mother and called the police. The license plate led police to
Covell.
To secure a conviction, the State must prove that Covell attempted to lure A.P. for the purpose of
committing a criminal offense with or against her. To establish that point, the State sought to admit
evidence related to an alleged prior incident of lewdness. However, Covell was never charged with that
offense and it was never established that an offense was committed. The State's evidence was that on
6/25/93, Covell was questioned about an incident that occurred in a Shop Rite the day before. Covell
admitted to approaching a young girl, lowering two plastic plums that he had in his hand to his groin area,
and telling the girl "she should eat fruit to grow big like me." He stated that he "felt himself starting to go
off" and was about to leave when a man approached. Covell ran away. The man observed that Covell had
an erection at the time. Also during the interview, Covell stated:
I have a problem with girls. I never was interested in older women just young girls and
teenage girls. I never had a childhood and I'm trying to relive it . . . I have this thing with
young girls that I can't help.
After a pre-trial hearing, the trial court determined that the quoted portion of the statement was
admissible. The investigating officer who testified also told the jury that Covell gave the statement while
being questioned at police headquarters and that Miranda warnings had been administered. He also stated
that no charges had been brought against Covell at that time, because nothing he said had inculpated him in
a crime. In addition, the trial court gave the jury a limiting instruction that this evidence was not to be used
to show any predisposition on the part of Covell to commit an offense. The prosecutor made reference to
Covell's statement again in closing, hinting that he had been brought in for questioning in connection with a
prior criminal offense.
During its deliberations, the jury asked for an explanation about why Covell had been brought in for
questioning. The trial court advised the jury that the question was not "germane." The jury convicted Covell,
and he was sentenced to a five year term with a two and one-half year parole disqualifier.
Covell appealed, asserting the following errors on the part of the trial court: (1) it erred in admitting
his statement made sixteen months before in an unrelated matter; (2) its instruction concerning the use of
the statement was inadequate; (3) it improperly denied Covell's motion for acquittal; and (4) it imposed an
excessive sentence.
The Appellate Division, in an unpublished opinion, determined that Covell's statement was
inadmissible as other-conduct evidence to prove intent under N.J.R.E. 404(b), and reversed. It reasoned that
the evidence lacked relevance, did not prove conduct, and was too prejudicial pursuant to N.J.R.E. 403. The
Appellate Division did not address Covell's other contentions. The Supreme Court granted the State's
petition for certification.
HELD: The statement is admissible under N.J.R.E. 404(b) as evidence of other conduct and under N.J.R.E.
803(b)(1) as a party's own statement. The statement was not excessively prejudicial under N.J.R.E. 403(b).
1. Evidence of other crimes, wrongs or acts is admissible to prove facts in issue such as motive and intent.
N.J.R.E. 404(b). To be admissible, the evidence (1) must be relevant to a material issue, (2) similar in kind
and reasonably close in time to the offense charged, (3) clear and convincing, and (4) its probative value
must not be outweighed by its apparent prejudice. The admissibility of such evidence is left to the discretion
of the trial court, and that court's ruling is to be disturbed only if there is a clear error of judgment. (pp. 8-10)
2. It is logical to conclude that Covell's statement meant he was sexually attracted to young girls, especially
since he expressly stated that he was not "interested" in older women. Although this does not prove that
Covell committed a crime, it does make it more likely that Covell's purpose in beckoning to A.P. was to
commit a sexual crime. The evidence is also similar in kind and reasonably close in time to the offense
charged. Both incidents involve young girls and it can be inferred that Covell sought to sexually gratify
himself with or in the presence of the girls. The clear and convincing standard also is satisfied. Although
being sexually attracted to young girls in and of itself is not a crime, a jury can interpret Covell's expressions
of such feelings to be a wrong or bad act. (pp. 10-15)
3. In deciding whether the evidence is too prejudicial, courts apply the balancing test of N.J.R.E. 403, which
provides that evidence is excluded if its probative value is substantially outweighed by the risk of undue
prejudice. The evidence must be so inflammatory that it is likely to divert the minds of the jurors from a
reasonable and fair evaluation. In making its determination, a court must also consider the availability of
other evidence to prove the same point. The probative value of the evidence is enhanced by the absence of
other evidence to prove the same point. Covell's statement is the only evidence available to prove his intent
or motive. The trial court recognized that the statement was clearly prejudicial, but found it unlikely to be
so inflammatory that it would distract the jurors. (pp. 16-20)
4. The State also asserts that the statement could have been admitted under N.J.R.E. 803(b)(1), as a
statement offered against a party which is that party's own statement. Generally, as long as there are no
Miranda, privilege, or voluntariness problems, the State may introduce any relevant statement made by a
defendant. The more interesting issue is whether a statement admitted under N.J.R.E. 803(b)(1) is subject
to N.J.R.E. 403. The Court holds that statements admitted under N.J.R.E. 803(b)(1) are subject to the
N.J.R.E. 403 balancing test. Applying that test here, the Court finds that the probative value of Covell's
statement outweighed its prejudicial effect. (pp. 20-24)
5. Although the Appellate Division did not reach the issue of the sufficiency of the limiting jury instruction
because it reversed on other grounds, this Court has reviewed the instruction and concludes that it was
sufficient. The trial court instructed the jury not to consider the statement for any purpose other than
deciding Covell's motive, intent, or state of mind. (pp. 24-25)
6. Covell's other grounds for appeal -- that the trial court erroneously denied his motion for judgment of
acquittal and imposed a sentence not warranted by balancing the aggravating and mitigating factors -- have
no merit. The Court therefore does not remand the case to the trial court, but instead reverses the
Appellate Division and reinstate's the conviction and sentence. (pp. 25-26)
The judgment of the Appellate Division is REVERSED, and defendant's conviction and sentence are
reinstated.
CHIEF JUSTICE PORITZ and JUSTICES POLLOCK, O'HERN, STEIN and COLEMAN
join in JUSTICE GARIBALDI's opinion. JUSTICE HANDLER did not participate.
SUPREME COURT OF NEW JERSEY
A-
13 September Term 1998
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
THOMAS WILLIAM COVELL,
Defendant-Respondent.
Argued February 17, 1999 -- Decided March 24,
1999
On certification to the Superior Court, Appellate
Division.
Julie Davidson, Assistant Prosecutor, argued
the cause for appellant (Glenn Berman,
Middlesex County Prosecutor, attorney).
Jodi L. Ferguson, Assistant Deputy Public
Defender, argued the cause for respondent
(Ivelisse Torres, Public Defender, attorney).
The opinion of the Court was delivered by
GARIBALDI, J.
Defendant, Thomas Covell, was convicted of child luring in
violation of N.J.S.A. 2C:13-6. That statute states:
A person commits a crime of the third degree
if he attempts to lure or entice a child into
a motor vehicle, structure or isolated area
with a purpose to commit a criminal offense
with or against the child.
At issue is whether defendant's statement to police officers
about an alleged prior act of lewdness that occurred sixteen
months before the offense for which he was convicted was properly
admitted in evidence. To resolve that question, we consider the
admissibility of defendant's statement as evidence of "other
crimes, wrongs or acts" under N.J.R.E. 404(b), and as a
"statement by party-opponent" under N.J.R.E. 803(b). We also
must determine whether that statement's probative value is
outweighed by its prejudicial effect, pursuant to N.J.R.E.
403(a).
On October 8, 1994, A.P., an eight-year-old girl, was riding her bicycle alone on the sidewalk outside of her home in Perth Amboy, New Jersey. As she rode by a store several houses down from her home, a man pulled up in a blue car and beckoned her by motioning with his right index finger. A.P. shook her head "no" and continued to ride her bicycle. When A.P. rode past the man a second time, he made a "waving" gesture with his right hand. A.P. again shook her head "no" and continued to ride her bicycle. When A.P. rode past the man a third time, he motioned to her again and told her to "get in the car before somebody sees you." A.P. refused to get into the car and continued riding her bicycle until her mother called her to come inside the house.
A.P. identified Covell in court and testified that the man in the car was caucasian with balding blond hair, blue eyes, and looked like Hulk Hogan. Her initial description to the police included tattoos on the right hand and a beard. During her formal police statement, however, the beard became a mustache and the tattoos were on his arms. A.P. also testified that she had seen the man approximately two years earlier when she had been sitting on her bicycle and "[h]e did the same thing." She did not know the man and did not have any reason to speak to him. She did not make an in-court identification of defendant during her direct examination. However, after cross-examination and a break in the trial, the prosecutor requested that a hearing be held outside the presence of the jury. At that time A.P. said that she did recognize defendant. When recalled on redirect examination, A.P. made an in-court identification of defendant as the man in the blue car.
Ramon Taveras, a cousin of A.P.'s mother who lives next to the store, testified that he noticed a blue car with one occupant blocking the entrance to his driveway. Although he did not hear what was said he noticed the occupant, a caucasian man with blond hair and a bald spot, calling to A.P. and beckoning her with his right index finger. When Taveras approached the blue car to see what the man wanted with A.P., the car sped off. Taveras followed the car and wrote down the license plate number. He then returned home, spoke with A.P.'s mother, and called the police. In court, Taveras was not asked to identify defendant. The license plate number led the police to Thomas Covell, who was arrested for child luring, contrary to N.J.S.A. 2C:13-6.
The arrest report described defendant as a forty-four-year-old caucasian male, weighing two hundred and thirty pounds, and having balding blond hair, a mustache, blue eyes, and several tattoos on his arms. During the ride to the Middlesex County Correction Center, defendant told an officer that "now that I have time to think about it, I did see a girl on a bike in the area and I let her go across the street, waving her on."
To secure a conviction under N.J.S.A. 2C:13-6, for the State to establish that defendant was the man in the car is not sufficient. The State also must prove that Covell attempted to lure A.P. for the purpose of committing a criminal offense with or against her. To establish that point, the State sought to admit evidence related to an alleged prior incident of lewdness. Defendant was never charged and it was never established that defendant in fact committed that offense. The State presented evidence that on June 25, 1993, defendant was questioned at the Perth Amboy Police Department regarding an incident that allegedly took place on June 24, 1993, in a Shop Rite store in Perth Amboy, involving defendant and a young girl.
During the questioning on June 25, 1993, defendant told the officers that he had approached a young girl in the store and asked "if she knew what kind of Spanish fruit . . . was hanging in the store." Defendant then lowered two plastic plums that he had in his hand to the level of his groin area and told the girl that "she should eat fruit to grow big like me." Defendant then told the officers that he "felt himself starting to go off" and was about to leave when a man approached him. The man observed that defendant had an erection at the time, and defendant ran away. Defendant told the officers that "if it's a crime to talk to girls, then I'm guilty." He also said during that police interview:
I have a problem with girls. I never was interested in older women just young girls and teenage girls. I never had a childhood and I'm trying to relive it . . . . I have this thing with young girls that I can't help.
After a pre-trial hearing, the trial court determined the
above portion of defendant's police statement to be admissible.
In addition to the statement itself, the investigating officer
told the jury that defendant gave the statement while being
questioned at police headquarters and that MirandaSee footnote 1 warnings had
been administered. He also stated, however, that no charges were
brought against defendant because nothing defendant said had
inculpated him in a crime. In addition, the trial court told the
jury that the evidence was not to be used to show any
predisposition on the part of defendant to commit an offense.
In her closing arguments, however, the prosecutor hinted
that Covell was brought in for questioning in connection with a
prior sexual offense. She stated:
[A.P.] testified that she lives across the
street from a school. And if you are going
to look for young girls --
. . .
If you are going to look for young girls, the
most likely place is across the street from
the school. Even though it's a Saturday,
ladies and gentlemen, kids play in the school
yard, kids are around the school.
The defendant is a block from an elementary
school. He is in a neighborhood -- although
he is in a neighborhood that is not his own,
he is not going to stay in his own
neighborhood, people know him there. He is
going to a different neighborhood of Fayette
Street, a block away from a school. That
brings us to what Thomas Covell told
Detective Bielinski in June, on June 25th of
199[3] -- no, he wasn't charged with a crime
at that point, but in the interview with
Detective Bielinski he says, I have a problem
with girls. I was never interested in older
women, just young girls and teenage girls. I
never had a childhood and I am trying to live
it. I have this thing with young girls that
I can't help.
Before the jury began to deliberate, the court provided
limiting instructions with regard to defendant's June 25th
statement. During its deliberation the jury asked for a readback
of Detective Bielinski's testimony that explained the
circumstances under which defendant gave that statement, and also
asked for an explanation about why defendant had been brought in
for questioning in 1993. With regard to the latter request, the
court advised the jury that that question was not "germane."
The jury returned a verdict convicting defendant of third-degree child luring. A custodial term of five years with a two
and one-half year parole disqualifier was imposed, along with
fines and penalties. Defendant appealed his conviction,
asserting that the trial court made the following errors: (1) it
erred in admitting defendant's statement, which was made sixteen
months before this offense and addressed an unrelated matter; (2)
its instruction concerning the use of the other-bad-acts evidence
was inadequate; (3) it improperly denied defendant's motion for a
judgment of acquittal; and, finally (4) it imposed a sentence not
warranted by an appropriate balancing of aggravating and
mitigating factors.
In an unpublished opinion, the Appellate Division, citing
the four-part test set forth in State v. Nance,
148 N.J. 376, 387
(1999), determined that defendant's statement was inadmissible as
other-conduct evidence to prove intent under N.J.R.E. 404(b).
Specifically, the court found that the evidence lacked relevance,
was too prejudicial pursuant to N.J.R.E. 403, and did not admit
to conduct. The panel also observed that the statement did not
fit under N.J.R.E. 803(c)(25) as a statement against interest
because it would be inadmissible under N.J.R.E. 403. Further,
the court explained that because the admission of that statement
was necessary for the State to convict defendant, it was not
harmless.
Because the Appellate Division reversed defendant's
conviction on the erroneous admission of his statement, it did
not address his other contentions, and remanded the case for
further proceedings consistent with its opinion.
We granted the State's petition for certification,
156 N.J. 409 (1998), and now reverse.
A. N.J.R.E. 404(b)
At trial, the State's primary argument was that defendant's statement should have been admitted under N.J.R.E. 404(b). That Rule states:
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.
Evidence of other crimes, wrongs or acts may not be
introduced into evidence to prove a defendant's criminal
disposition as a basis for establishing guilt of the crime
charged. State v. Stevens,
115 N.J. 289, 293 (1989). The
evidence presented through this rule should not be used to
"suggest that because the defendant is a person of criminal
character, it is more probable that he committed the crime for
which he is on trial." State v. Weeks,
107 N.J. 396, 406 (1987).
However, the Rule expressly permits such evidence to be admitted
to prove other facts in issue, such as "motive, intent, plan,
knowledge, identity, or absence of mistake or accident." State
v. Stevens, supra, 115 N.J. at 293.
In order for other-crime and other-conduct evidence to be
admissible, the evidence must meet the four-part test set forth
in State v. Cofield,
127 N.J. 328, 338 (1992). That test is as
follows: (1) It must be 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.
The admissibility of other-crime evidence is left to the
discretion of the trial court: "The trial court, because of its
intimate knowledge of the case, is in the best position to engage
in this balancing process. Its decisions are entitled to
deference and are to be reviewed under an abuse of discretion
standard." State v. Ramseur,
106 N.J. 123, 266 (1987); see also
State v. DiFrisco,
137 N.J. 434, 496 (1994) (noting that "[w]e
accord trial judges broad discretion in applying the balancing
test"), cert. denied,
516 U.S. 1129,
116 S. Ct. 949,
133 L. Ed.2d 873 (1996). Only where there is a "clear error of judgment"
should the "trial court's conclusion with respect to that
balancing test" be disturbed. State v. Marrero,
148 N.J. 469,
483 (1997) (citing DiFrisco, supra, 137 N.J. at 496-97).
Defendant argues that the statement he made to the police on
June 25, 1993 fails all four parts of the Cofield test. The
State, on the other hand, contends that the Appellate Division
erred by failing to admit the statement under N.J.R.E. 404(b).
In addition, the State argues that the statement was not too
prejudicial to be admitted.
1. Relevance
The first part of the Cofield test states that the evidence
of the prior bad act, crime or wrong must be relevant to a
material issue that is genuinely disputed. Evidence is relevant
if it tends "to prove or disprove any fact of consequence to the
determination of the action." N.J.R.E. 401. In determining
whether evidence is relevant, the inquiry should focus on the
"logical connection between the proffered evidence and a fact in
issue." State v. Hutchins,
241 N.J. Super. 353, 358 (App. Div.
1990). If the evidence offered makes the inference to be drawn
more logical, then the evidence should be admitted unless
otherwise excludable by a rule of law. Biunno, Current N.J.
Rules of Evidence, comment 1 on N.J.R.E. 401 (1998-1999).
In criminal prosecutions, New Jersey courts generally admit
a wider range of evidence when the motive or intent of the
accused is material. State v. Rogers,
19 N.J. 218, 228 (1955).
That includes evidentiary circumstances that "tend to shed light"
on a defendant's motive and intent or which "tend fairly to
explain his actions," even though they may have occurred before
the commission of the offense. Ibid.
Other-crime evidence and other-conduct evidence have been
found probative of intent and motive. In State v. Erazo,
126 N.J. 112 (1991), the State introduced evidence showing that the
defendant had been convicted of murder to support its argument
that the defendant had killed the victim to prevent her from
causing a revocation of his parole. Id. at 130-31. The Court
held that the other-crime evidence was properly admitted because
it was "necessary to prove the State's theory of defendant's
motive." Id. at 131. In State v. Stevens, supra, 115 N.J. at
306-307, the Court found evidence of the defendant's prior
unauthorized searches of two women to be highly probative of his
purpose in conducting the searches, which was to "gratify his
sexual desires and [that he] did so knowing that such conduct was
unauthorized." Such evidence was deemed relevant and admissible.
Ibid.
In State v. Mulero,
51 N.J. 224 (1968), and State v. Cusick,
219 N.J. Super. 452 (App. Div.), certif. denied,
109 N.J. 54
(1987), other-crime evidence to prove intent was admissible. In
Mulero, the defendant was accused of beating to death the
daughter of his paramour. Mulero, supra, 51 N.J. at 226-27. He
admitted that he had struck the victim, but denied having killed
her. Id. at 227-28. The paramour testified that the defendant
had beaten her on previous occasions. Ibid. The Court held that
admitting the testimony was proper because it was probative of
the defendant's intent with regard to his striking the victim.
The Appellate Division reached the same conclusion in State
v. Cusick,
219 N.J. Super. 452 (App. Div.), certif. denied
109 N.J. 54 (1987), a case in which the defendant was accused of
sexually assaulting a child. Over the defendant's objection,
testimony by the victim and another child concerning prior acts
of sexual assault for which the defendant had been convicted in a
separate proceeding were permitted by the trial court. Id. at
464. The Appellate Division affirmed, finding that the evidence
was admissible to show intent and lack of mistake. On the intent
issue, the court noted:
Extremely probative of whether defendant's
acts were done for purposes of sexual
arousement or gratification was the evidence
that defendant had previously pleaded guilty
to having sexually assaulted young girls.
This fact supported the inference that
defendant enjoyed or was stimulated by sexual
acts with young girls and was therefore
relevant to whether or not defendant was
guilty of sexual contact.
In interpreting defendant's statement, it is logical to
conclude that defendant meant he was sexually attracted to young
girls. That is especially true because he specifically stated
that he was not interested in older women, just young girls and
teenage girls. A logical interpretation of that statement is
that defendant is insinuating that society would expect him to be
attracted to women, but instead, he is interested only in young
girls and teenagers. Such a statement implies that defendant's
"interest" in A.P. was a physical attraction for his sexual
gratification.
Being sexually attracted to young girls does not, as
defendant properly asserts, prove that he intended to commit a
crime, much less a crime of a sexual nature against A.P.
However, it does make it more likely that defendant's purpose in
beckoning to A.P. was to commit a sexual crime with or against
her. Because defendant's purpose in luring A.P. is an essential
element to convict defendant, part one of the Cofield test is
satisfied.
2. Similar in Kind and Reasonably Close
Part two of the Cofield test, providing that other-conduct
evidence must be similar in kind and reasonably close in time to
the offense charged, also is satisfied. First, the incidents are
similar. They both involve young girls. They both occurred
during the day in a public place when the girls were alone. When
an adult approached, defendant fled. In each case, it can be
inferred that defendant sought to sexually gratify himself with
or in the presence of a young girl. In the prior incident, for
example, defendant was observed having an erection while talking
to a young girl. In the present case, it was the State's belief
that defendant attempted to lure A.P. into the car so he could
engage in an act to sexually gratify himself.
To satisfy the temporal requirement, cases using Evid. R.
55, replaced by N.J.R.E. 404(b), have admitted evidence involving
longer time periods between the prior other-crime evidence and
the crime charged than are present in this case. In State v.
Stevens, supra, 115 N.J. at 295-96, we held that prior incidents
occurring approximately two-and-one-half years prior to the event
for which the defendant was indicted were admissible. See also
State v. Ramseur, supra, 106 N.J. at 266 (holding that evidence
of arguments between defendant and woman one-and one-half-years
prior to woman's stabbing was admissible and not too remote to
prove motive and intent).
3. Clear and Convincing Evidence of Conduct
Part three of the Cofield test provides that the other-crime
or conduct evidence must be clear and convincing. Defendant
asserts that the statement indicates only that defendant has some
type of problem with young girls. The statement does not set
forth a prior incident and is not evidence of conduct. A similar
argument was advanced by defendant concerning why defendant's
statement was not relevant. We find all the reasons that make
defendant's statement relevant to indicate his intent and purpose
in luring A.P. applicable here. Supra, at ___ (slip op. at ___).
Further, an analogous argument was asserted in
State v. Crumb,
307 N.J. Super. 204 (App. Div. 1997), certif.
den.,
153 N.J. 215 (1998). The Appellate Division in Crumb
allowed defendant's letters, verses, and drawings espousing his
hatred toward African-Americans into evidence pursuant to
N.J.R.E. 404(b) to prove defendant's motive in murdering an
African-American man. The court in Crumb, supra, stated that
"[a]lthough defendant's writings are constitutionally protected
free expressions of his racial beliefs and are not themselves
unlawful, they nonetheless may be interpreted by a jury to
constitute other wrongs or acts . . . which may not necessarily
be unlawful." 307 N.J. Super. at 231.
Although being sexually attracted to young girls in and of
itself is not a crime, a jury may interpret defendant's
expression of those feelings to be a wrong or bad act in relation
to his intent just as the jury could have found the defendant's
writing in Crumb to be a bad act. We find that the statement
satisfies part three of the Cofield test.
B. N.J.R.E. 403 Analysis
To satisfy part four of the Cofield test, we apply the
balancing test of N.J.R.E. 403. That rule excludes evidence if
"its probative value is substantially outweighed by the risk of
. . . undue prejudice." In particular, evidence claimed to be
unduly prejudicial can be excluded only where its probative value
"is so significantly 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).
Ultimately, however, the admissibility of such evidence falls
largely within a judge's discretion, and "[h]is discretion is a
broad one." State v. Sands,
76 N.J. 127, 144 (1978). Only where
there has been "a clear error of judgment" should a N.J.R.E. 403
determination be overturned. See State v. Koedatich, 112 N.J.
225, 313 (1988), cert. denied,
488 U.S. 1017,
102 L. Ed.2d 803,
109 S. Ct. 813 (1989).
The "more attenuated and the less probative the evidence,
the more appropriate it is for a judge to exclude it" under
N.J.R.E. 403. State v. Medina,
201 N.J. Super. 565, 580 (App.
Div.), certif. den.,
102 N.J. 298 (1985). In evaluating the
probative value of certain evidence, the "remoteness" of the
evidence is often discussed. Rogers, supra, 19 N.J. at 229.
"The question of remoteness is to be decided by the trial court
as a matter of discretion, and the determination so made is not
reviewable unless it appears there was a palpable abuse of
discretion." Id. Remoteness, however, "cannot ordinarily be
determined by the passage of time alone." Sands, supra, 76 N.J.
at 144. The nature of the evidence must be considered as well.
See id. (stating that when evaluating remoteness the nature of
convictions will be significant). In State v. Bass,
221 N.J.
Super. 466, 483-84 (App. Div. 1987), the court held that
statements made by the defendant more than two years before he
allegedly murdered his son, which reflected a cavalier attitude
toward care for the boy, were not so remote as to require
exclusion.
In addition to remoteness, a court must consider the
availability of other evidence that can be used to prove the same
point. Biunno, supra, comment 3 on N.J.R.E. 403. Probative
value is enhanced by the absence of any other evidence that can
prove the same point. See State v. Stevens, supra, 115 N.J. at
303. Conversely, relevant evidence losses some of its probative
value if there is other non-inflammatory evidence available to
prove that point. See State v. Johnson,
120 N.J. 263, 298
(1990); State v. Davis,
116 N.J. 341, 366 (1989).
Some types of evidence require a very strong showing of
prejudice to justify exclusion. One example is evidence of
motive or intent. The Court in State v. Carter,
91 N.J. 86, 106
(1982) (quoting 1 Wharton, Criminal Evidence, ¶ 170 at 316 (13th
ed. 1972), stated that "evidence as to motive of a criminal
defendant is admissible even though it may be prejudicial in the
sense that it will arouse or inflame the jury against the
defendant." See also Rogers, supra, 19 N.J. at 228 ("[W]henever
the motive or intent of the accused is important and material, a
somewhat wider range of evidence is permitted in showing such
motive or intent than is allowed in the support of other
issues."). For example, evidence of a defendant's former
membership in the Black Panther Party and the defendant's express
hatred of police was held to be admissible on the issue of motive
at his trial on a charge of shooting an officer. State v.
Cherry,
289 N.J. Super. 503, 527-28 (App. Div. 1995).
In this case, the trial court did recognize that the
statement was prejudicial towards defendant, but after weighing
its probative value and potential prejudice concluded that the
statement's prejudicial effect did not outweigh its probative
value. In reaching that conclusion, the trial court considered
the following factors. First, defendant's statement is the
State's only evidence to prove defendant's intent or motive.
That fact enhances the probative value of the evidence. Second,
and closely aligned to that first reason, the statement was made
after defendant had been questioned about an incident with a
young girl. Therefore, the statement is probative of his
intentions when young girls are concerned, and specifically
probative of his intention in beckoning A.P. and telling her to
get into his car before anyone saw her. Third, the statement is
not too remote. Courts have allowed statements into evidence
that were made beyond the sixteen-month period that passed in
this case.
Moreover, although the court recognized that the statement
was clearly prejudicial, it found that the statement was unlikely
to be so highly inflammatory that it would distract the jurors
from performing their jobs properly. As previously observed, the
court's tendency is to be more open to the admission of motive or
intent evidence. This weighs heavily in favor of the statement's
admissibility.
New Jersey courts have admitted sexual conduct evidence that
appears more inflammatory than defendant's statement. See State
v. Zeidell,
299 N.J. Super. 613, 618 (App. Div.), certif. denied,
151 N.J. 470 (1997) ("The evidence of defendant's prior acts of
lewdness and masturbation would be admissible as relevant to the
material issue showing past involvement with children for
motive."); State v. Cusick, supra, 219 N.J. Super. at 464
(allowing victim and another eight-year-old child to testify
regarding defendant's prior acts of sexual assault to prove
defendant's motive and absence of mistake in sexually molesting
the defendant).
Defendant's statement is not as inflammatory as was the
evidence of crime in Cusick and Zeidell. Furthermore, the nature
of the crime, luring, makes it difficult to infer a criminal
intent. Defendant's statement was material to prove motive and
intent that were genuinely in dispute. There was no other
evidence available to establish motive and intent, and the
statement was not too remote. Consequently, the trial court did
not abuse its discretion in holding that defendant's statement
was admissible under N.J.R.E. 404(b), and that the statement was
not too prejudicial to be admitted under 403(b).
N.J.R.E. 803(b)(1)
At trial the State asserted that the statement should be admitted pursuant to N.J.R.E. 404(b). Although not abandoning that claim before this Court, the State now asserts that the statement also could have been admitted under N.J.R.E. 803(b)(1). Defendant's brief never addresses whether defendant's statement is admissible under N.J.R.E. 803(b).
N.J.R.E. 803(b)(1) provides that a statement can be admitted into evidence if the "statement [is] offered against a party which is the party's own statement, made either in an individual or in a representative capacity." A statement admitted under N.J.R.E. 803(b)(1) does not have to be contrary to the party's interest when made. Cf. N.J.R.E. 803(c)(25) (declaring the admissibility of declarations against interest).
Generally, as long as there are no Bruton,See footnote 2 Miranda, privilege or voluntariness problems, and subject to N.J.R.E. 104(c), the State may introduce at a criminal trial any relevant statement made by a defendant. Biunno, supra, comment 1 on N.J.R.E. 803(b)(1) (1998). Here, there are no such problems. In addition, it is clear that the statement was made by defendant. Therefore, in determining whether the statement should be admitted under N.J.R.E. 803(b)(1), we must determine only whether the statement was relevant. For the reasons previously set forth, defendant's statement was relevant. Supra, at ___ (slip op. at ___).
The more interesting issue is whether a statement admitted under N.J.R.E. 803(b)(1) is subject to N.J.R.E. 403.
Without citing any authority, the State asserts that it is not. Defendant's brief does not address N.J.R.E. 803(b).
Few cases or commentators specifically address the issue of whether a defendant's statement admitted under N.J.R.E. 803(b) is subject to the balancing test of 403. We believe the reason for such sparse authority on that issue is because, as in this case, the parties usually argue that the evidence is admissible under N.J.R.E. 404(b), rather than N.J.R.E. 803(b)(1). Nonetheless, 2 McCormick, Evidence, ¶ 254, at 142 (J. Strong 4th ed. 1992), states, "Moreover, while generally received in evidence because of their substantial probative value in most situations, admissions may be excluded if their probative value is substantially outweighed by the prejudicial impact."
Several comments in Biunno, Current N.J. Rules of Evidence suggest that N.J.R.E. 803(b) statements are subject to N.J.R.E. 403. Biunno, supra, comment 1 on N.J.R.E. 803(b)(1), states, "[a]pplication of N.J.R.E. 403 could keep out of evidence an otherwise admissible statement of a party," citing State v. Bass, 221 N.J. Super. 466, 483-84 (App. Div. 1987), and State v. Ellis, 280 N.J. Super. 533, 548 (App. Div. 1995). Although both cases applied the N.J.R.E. 403(b) balancing test to statements admitted under N.J.R.E. 803(b), neither case offered any explanation about why N.J.R.E. 403(b) applied.
Biunno, supra, comment 8 on N.J.R.E. 403, states that:
N.J.R.E. 404(a)(2) provides that a trial judge may not use N.J.R.E. 403 to exclude evidence of good character offered by a defendant in a criminal case. See comment 4 to N.J.R.E. 404. That is the only other Rule which specifically prohibits exclusion of proffered evidence under N.J.R.E. 403.
The last sentence of 803(b) states, "In a criminal
proceeding, the admissibility of a defendant's statement which is
offered against the defendant is subject to Rule 104(c)."
N.J.R.E. 104(c) provides, in part: "Where by virtue of any rule
of law a judge is required in a criminal action to make a
preliminary determination as to the admissibility of a statement
by the defendant, the judge shall hear and determine the question
of its admissibility out of the presence of the jury."
In this case, the trial court did hold a preliminary hearing
pursuant to N.J.R.E. 403, and did balance the probative and
prejudicial effects of defendant's statement. As required by
N.J.R.E. 104(c), the trial court also specifically instructed the
jury with respect to defendant's statements that it was their
"function to determine whether or not they were actually made by
him and if made whether the statements or any portions are
credible." The court further stated, "If after a consideration
of these factors you determine the statement was not made or is
not credible, you must disregard it entirely."
We perceive no policy reason why N.J.R.E. 403 should not be
applied to N.J.R.E. 803(b). In most cases, we suspect that the
probative value of a defendant's statement would outweigh its
prejudicial effect and be admitted. Undoubtedly, however, there
will be some cases where the prejudicial impact of a defendant's
statement will outweigh its probative value. Such a case may
arise where there is available less inflammable evidence. In
that context, a defendant's statement may not be admissible.
Accordingly, statements admitted under N.J.R.E. 803(b)(1) are
subject to the N.J.R.E. 403 balancing test. Applying the 403
balancing test to defendant's statement, we find that its
probative value outweighed its prejudicial effect on defendant.
See, supra, at ___ (slip op. at ___).
Although the Appellate Division did not reach the issue of the sufficiency of the limiting jury instruction because it reversed on other grounds, we have reviewed the instruction and conclude that it was sufficient.
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." Cofield, supra, 127 N.J. at 340-41. To satisfy that standard, a court's instruction must "'be formulated carefully to explain precisely the permitted and prohibited purposes of the evidence.'" Id. at 341 (quoting Stevens, supra, 115 N.J. at 304). In this case, the court cautioned the jury that the evidence could not be used to conclude that defendant "is a bad person and thus has a disposition which shows he is likely to have done the act that he is presently charged with or showing general disposition to commit bad acts." The court further instructed the jury that the evidence was admitted "as it may bear on the issue of whether the alleged purpose in attempting to lure or induce [A.P.] to the motor vehicle was to commit a criminal offense with or against her or to obtain some sort of sexual gratification or as to show that there was no mistake about the defendant's actions." The court further commented that the jury had to decide whether the testimony had any bearing on the issues of intent, purpose, absence of mistake or accident and that the jury could disregard the testimony if it found the testimony had no bearing on its deliberations. Those instructions are similar to the instructions given in State v. Cusick, supra, 219 N.J. Super. at 467 (cited with approval in State v. Marrero, supra, 148 N.J. at 495). Defendant did not object to the charge.
As the foregoing charge reflects, the jury was properly instructed on how it could use the other-conduct evidence. The evidence was limited to deciding only defendant's motive, intent, and state of mind. The court instructed the jury not to consider the other-conduct evidence for any other purpose. Finally, the court specifically prohibited the jury from using that evidence to infer that because of defendant's conduct on June 23, 1993, he had a propensity or a predisposition to commit a crime against A.P.
We conclude that the Appellate Division erred in reversing the trial court's decision to admit defendant's statement under N.J.R.E. 404(b). We further find that the statement also could have been admitted under N.J.R.E. 803(b)(1). Moreover, applying the balancing test of N.J.R.E. 403, the statement's probative value was not outweighed by its prejudicial effect on defendant. Because defendant's other grounds for appeal of the trial court's decision, namely, that it erroneously denied defendant's motion for a judgment of acquittal and imposed a sentence not warranted by an appropriate balancing of aggravating and mitigating factors have no merit, we do not remand the case to the trial court. Instead, we reverse the judgment of the Appellate Division and reinstate defendant's conviction and sentence.
CHIEF JUSTICE PORITZ and JUSTICES POLLOCK, O'HERN, STEIN, and COLEMAN join in JUSTICE GARIBALDI's opinion. JUSTICE HANDLER did not participate.
NO. A-13 SEPTEMBER TERM 1998
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
THOMAS WILLIAM COVELL,
Defendant-Respondent.
DECIDED March 24, 1999
Chief Justice Poritz PRESIDING
OPINION BY Justice Garibaldi
CONCURRING OPINION BY
DISSENTING OPINION BY
Footnote: 1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed.2d 694 (1966). Footnote: 2 Bruton v. United States, 391 U.S. 123, 20 L. Ed.2d 476, 88 S. Ct. 1620 (1968).