(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 25, 2002 -- Decided July 15, 2002
COLEMAN, J., writing for a majority of the Court.
The issue in this appeal is whether statements made by defendant prior to the commission of a murder, possibly implicating defendant in another murder for which the defendant has not been charged and which has not yet been classified as a homicide, are hearsay and, if so, whether that hearsay can be used to prove motive under any exception to the hearsay rule.
Defendant lived with her mother, Mabel Long, in Avon, New Jersey. Her friend
Tracey Roche lived with her mother, Irene, in Hillsborough. On August 27, 1998,
defendant called Tracey to cancel a lunch date. At that time, Irene overheard
Tracey exclaim, “Oh my God” and “Was she hurt?” After hanging up, Tracey
told Irene that defendant called to cancel their lunch date because Mabel had
fallen down the stairs. The next day, August 28, Tracey called defendant to
inform her that Mabel had died. Again, Irene was in the vicinity, overheard
the conversation, and was told by Tracey that Mabel had died.
On Saturday, August 29, Tracey and defendant made plans to have lunch the
following day. On August 30, at 8:28 a.m., Avon police responded to a
911 call from defendant’s residence requesting an ambulance for an elderly woman who
had fallen down the stairs. Upon arrival, police found Mabel alive but injured.
Mabel was taken to the hospital where she died later that day. Later
that morning, defendant telephoned Tracey to advise her that she would be late
for their lunch date, but did not say anything about that morning’s events.
Tracey left her house for the lunch date at about 12:45 p.m. and
Irene never heard from her daughter again.
On September 9, 1998, Tracey’s car was found in Ocean Grove by Neptune
Township Police and in the car police found Tracey’s badly decomposed body. Tracey’s
death was determined to be a homicide. Stains found on defendant’s driveway tested
positive for blood. With search warrant in hand, police discovered additional bloodstains in
defendant’s residence and DNA tests revealed that the blood came from Tracey.
On January 10, 2000, defendant was indicted for the death of Tracey Roche.
The State filed a motion in limine seeking to use at trial the
statements made by Tracey to Irene, pursuant to N.J.R.E. 803(c)(3). The State sought
to use these statements to establish defendant’s motive for killing Tracey; to eliminate
the chance that Tracey would implicate defendant in Mabel’s death. The State argued
that, though hearsay, the statements were admissible under the state of mind exception
to the hearsay rule, N.J.R.E. 803(c)(3). Defendant argued that the statements were not
admissible because they were evidence of other crimes or wrongs that tended to
show disposition to commit the charged offense and should be excluded under N.J.R.E.
404(b).
The trial court held, in part, that Tracey’s statements to Irene that Mabel
had fallen on August 27, 1998, and that she died on August 28,
1998, were other crimes evidence and inadmissible under N.J.R.E. 404(b). Relying in part
on State v. Cofield,
127 N.J. 328 (1992), the court held that the
prejudice far outweighed the probative value of the proffered evidence.
The Appellate Division denied the State’s motion for leave to appeal. This Court
granted the State’s motion for leave to appeal and summarily remanded the matter
to the Appellate Division to hear the appeal on the merits. On remand,
the Appellate Division affirmed the Law Division’s order in an unpublished opinion, agreeing
that the prejudice to defendant outweighed its “uncertain” probative value.
The Supreme Court granted the State’s petition for certification.
HELD: Tracey’s statements to Irene concerning what defendant had told Tracey are part
of the res gestae of Tracey’s murder; they satisfy the state of mind
exception, are not other-crime evidence, and are admissible under N.J.R.E. 803(c)(3). In addition,
the statements are admissible under the excited utterance exception to the hearsay rule,
N.J.R.E. 803(c)(2), and satisfy the probative value – prejudicial impact analysis under Cofield.
1. The hearsay rule applies when a declaration is offered to prove the
truth of the statement attributed to the declarant. Hearsay evidence can be admitted
only pursuant to one of the exceptions to the hearsay rule. Whether either
or both of Tracey’s statements are hearsay depend on the State’s intended use
of them and who will present that testimony at the trial. Although the
statements are not being presented to prove the truth of the matter, since
it is undisputed that Mabel did not die until August 30, the State
must still rely on hearsay to prove that defendant actually made the two
reputed statements to Tracey. The statements must therefore be treated as hearsay. Although
the statements do not fit neatly into any one exception to the hearsay
rule, we conclude that they are part of the res gestae of Tracey’s
murder, N.J.R.E. 803(c)(3), that is, evidence of her state of mind, and that
the “excited utterance” nature of the two statements help to corroborate their trustworthiness,
N.J.R.E. 803(c)(2). (Pp. 16-27)
2. The excited utterance exception to the hearsay rule, N.J.R.E. 803(c)(2), requires that
(1) there was a startling event, (2) the statement was made while the
declarant was under the stress of excitement from that event, and (3) the
statement related to that event. Viewing defendant as the declarant when she made
the statements to Tracey, the record does not satisfy the standard established under
N.J.R.E. 803(c)(2). Since defendant deliberately fabricated both statements, they were not in fact
made under any stress related to the occurrence of a startling event. However,
to the extent that the admissibility of those statements turns on Tracey’s mental
state at the time she told Irene what defendant had said to her
about Mabel’s fall and death, N.J.R.E. 803(c)(2) has been satisfied. (Pp. 27-31)
3 Defendant’s statements are admissible to establish defendant’s motive for murdering Tracey. Because
the motive evidence is not being admitted as other-crime evidence, there is no
need to conduct a Rule 404(b) analysis. However, both res gestae evidence and
evidence admissible pursuant to the excited utterance exception to the hearsay rule are
subject to Rule 403 balancing, the purpose of which is to determine whether
the risk of prejudice to defendant in admitting the motive evidence outweighs its
probative worth. State v. Cofield,
127 N.J. 328 (1992), established a four-prong test
to determine when other-crime and civil-wrong evidence is inadmissible. The fourth prong incorporates
the traditional probative/prejudicial balancing test of Rule 403 and although the emphasis will
not be on defendant’s criminal responsibility for Mabel’s death, that evidence will likely
raise a suggestion or an inference in the minds of jurors regarding defendant’s
culpability for her mother’s death. For that reason, the probative value-prejudicial impact analysis
under Rule 403 and Rule 404(b) are the same. Although this Court has
imposed a stringent standard for the admission of other-crime evidence, our courts have
not frequently excluded highly prejudicial evidence under the fourth prong of Cofield, in
particular when the probative value of the evidence is enhanced by the absence
of other less inflammatory evidence, as is the case here. The fourth prong
of the Cofield test is satisfied. (Pp. 31-39)
4. Generally no limiting instruction is necessary insofar as res gestae evidence is
concerned. In this case, however, a limiting instruction is appropriate because both the
res gestae and the excited utterance exception to the hearsay rule are applicable.
A limiting instruction would also ensure that the prosecutor does not use the
motive evidence improperly during summation. (P. 39)
The judgment of the Appellate Division is REVERSED and the matter is REMANDED
to the Law Division for trial.
CHIEF JUSTICE PORITZ concurring, in which JUSTICE LONG joins, is of the opinion
that the res gestae principle remains a useful interpretive tool when tethered to
specific Evidence Rules.
JUSTICE STEIN, concurring in part and dissenting in part, disagrees with the majority’s
use of the phrase res gestae, characterizing it as archaic, and is not
persuaded that the victim’s reaction to defendant’s phone calls appropriately can be characterized
as an excited utterance.
JUSTICES VERNIERO, LaVECCHIA, and ZAZZALI join in JUSTICE COLEMAN’s opinion. CHIEF JUSTICE PORITZ
filed a separate concurring opinion in which JUSTICE LONG joins. JUSTICE STEIN filed
a separate opinion concurring in part and dissenting in part.
SUPREME COURT OF NEW JERSEY
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
CAROLE LONG,
Defendant-Respondent.
Argued February 25, 2002 -- Decided July 15, 2002
On appeal from the Superior Court, Law Division, Monmouth County.
Richard E. Incremona, Assistant Prosecutor, argued the cause for appellant (John A. Kaye,
Monmouth County Prosecutor, attorney; Mary R. Juliano, Assistant Prosecutor, of counsel and on
the brief).
Kelly S. Anderson, Assistant Deputy Public Defender, argued the cause for respondent (Peter
A. Garcia, Acting Public Defender, attorney).
Lisa Sarnoff Gochman, Deputy Attorney General, argued the cause for amicus curiae, Attorney
General of New Jersey (Peter C. Harvey, Acting Attorney General, attorney).
The opinion of the Court was delivered by
COLEMAN, J.
The critical issue in this appeal is whether extra-judicial declarations made by an
accused prior to the commission of a murder are hearsay, and if so,
whether they are admissible under any exception to the hearsay rule to prove
defendant’s motive for killing the victim where the declarations imply that defendant was
involved in another death that the medical examiner has not classified as a
homicide and for which defendant has not been charged. In an unpublished opinion,
the Appellate Division analyzed the probative value and prejudicial effect of the evidence
and concluded that it was not admissible because “its use carried a risk
of prejudice and confusion that outweigh[ed] its uncertain probative value.” We reverse.
This is a homicide case in which the trial is still pending. Our statement of facts has been gathered from testimony presented to a Monmouth County Grand Jury and facts revealed at a probable cause hearing. That Grand Jury has indicted defendant Carole Long for the murder of her friend, Teresa Roche, also known as Tracey. In August 1998, defendant lived with her ninety-one year old mother, Mabel Long, in a garage apartment in Avon, New Jersey. Like defendant, Tracey Roche shared her home with her own mother, Irene Roche, in Hillsborough. Tracey and defendant had been friends since 1992. Although they had not visited each other in the period before Tracey was murdered, they spoke at length on the telephone and e-mailed each other regularly.
Defendant and Tracey arranged to meet for lunch on Thursday, August 27, at Ruby Tuesday’s restaurant in the Monmouth Mall. At that time, defendant was planning to attend her daughter’s September 11, 1998 wedding in San Diego, California. Tracey had been invited to attend the wedding but she declined.
According to Irene Roche, defendant called Tracey on August 27 to cancel their lunch date. Irene overheard Tracey exclaim, “Oh my God.” Irene went to the door of Tracey’s bedroom and heard Tracey ask, “Was she hurt?” Irene remained in the doorway of Tracey’s bedroom until Tracey hung up the telephone. Tracey then told Irene that defendant had cancelled their lunch plans because defendant’s mother, Mabel Long, had fallen down the stairs.
Tracey telephoned defendant the following day, Friday, August 28, to inquire about Mabel. Again, Irene overheard Tracey’s side of the conversation as Tracey exclaimed, “Oh I’m so sorry,” and then asked “Is there anything I can do?” Irene waited in the open doorway of Tracey’s bedroom until the telephone conversation ended. After Tracey hung up the telephone she told Irene that defendant’s mother had died. Tracey said that defendant was not planning a funeral and that a memorial service would be held on December 10, the anniversary of the day defendant’s mother and father had met. Tracey added that it was a good thing that the luncheon had been cancelled, because otherwise she would have been with defendant when Mabel Long died.
On Saturday, August 29, Tracey again called defendant and the two women made plans to have lunch the following day at the Brielle Yacht Club. Tracey planned to stay overnight and return on Monday, August 31, and asked Irene to telephone her at defendant’s home on Monday to give her an excuse to leave.
On Sunday, August 30, at 8:28 a.m. the Avon police responded to a 911 call from defendant’s residence requesting an ambulance for an elderly woman who had fallen down the stairs. When they responded to the call, police found defendant’s mother alive but injured. Mabel Long was transported to the hospital and died later that day. Defendant also was taken to the hospital because of a panic attack. Irene Roche recounted that later the same morning Tracey called defendant to advise that she was running late, and would not be there for lunch at 2:00 p.m. as originally planned. At about 12:45 p.m. that Sunday, Tracey left her home in Hillsborough driving her red Mazda without saying anything to reveal whether defendant had informed her about that morning’s events. When Tracey did not follow her usual practice of calling her mother upon arriving at her destination, Irene Roche telephoned defendant at about 3:30 p.m. to see if Tracey had arrived. There was no answer. Irene left a message on the answering machine, but did not receive a return call.
The following day, Monday, August 31, Patrolman Greg Torchia of the Avon Police Department received a call from an investigator in the county medical examiner’s office questioning how Mabel Long could have sustained a four-inch gash on her head when the stairs on which she had fallen were carpeted. In order to make arrangements for the investigator to speak to defendant and to examine the area where the fall allegedly occurred, Patrolman Torchia drove to defendant’s residence to schedule an appointment. No one answered his knock on the door. However, Torchia noticed a red Mazda parked on the concrete apron of defendant’s driveway. When he looked inside the car, he saw what he described as a “lumpy mass” covered by a garment bag. Torchia wrote down the license number and called headquarters for a “look-up” on the car. He was informed that the car was registered to Tracey Roche of Hillsborough, New Jersey. Torchia left a note in defendant’s mailbox asking her to call the Avon police to schedule an interview.
At about 1:00 p.m. that Monday, Irene Roche telephoned Tracey at defendant’s residence as previously arranged to provide Tracey with the desired excuse to leave. When no one answered the phone, Irene left a message. Again, no return call was received. That evening at about 8:00 p.m. Irene called again. This time defendant answered the telephone and told Irene that Tracey was not there. She added that perhaps Tracey had met some friends and gone to Long Beach. Defendant told Irene not to bother her anymore and abruptly ended the call.
With still no word from Tracey, Irene called defendant again on Tuesday, September 1, at about 9:30 a.m. Defendant was abrupt and said that she was calling the mortician and promised to call Irene back. After hearing nothing from defendant for one and one-half hours, Irene again called defendant. Sounding more agitated than ever defendant complained of high blood pressure and panic attacks, and expressed concern about attending her daughter’s impending wedding in California. She reiterated that she did not know where Tracey was and again suggested that she may have met with friends and gone to Long Beach Island.
That same Tuesday, the investigator for the county medical examiner called the Avon police to inquire whether an appointment had been made to inspect defendant’s apartment. Because defendant had not responded to his note, Patrolman Torchia visited defendant’s residence. When defendant was told that the medical examiner wanted to inspect the residence, defendant said it was not a good time and that the officer should return the next day. Patrolman Torchia observed that the red Mazda was gone and asked defendant about it. She explained that the car belonged to a friend from North Jersey who was visiting to help with the arrangements pertaining to her mother’s death.
Meanwhile, Irene Roche had reported to the Hillsborough Police Department that her daughter was missing. She was told that not enough time had passed to consider the matter a missing persons case, but an officer called the Avon police and then told Irene that Tracey’s car had been reported in defendant’s driveway two days earlier.
On Wednesday, September 2, Patrolman Torchia returned to defendant’s residence for the third time, accompanied by the investigator from the county medical examiner’s office. Patrolman Torchia stayed outside while the investigator examined the premises and, while he waited, he noticed what appeared to be a large bloodstain in the driveway where the Mazda had been parked. The stain was wet and it appeared to Torchia as though someone had tried to clean it. At that time, the cause of Mabel Long’s death was described as “accidental.” The cause of death, however, was later changed to “undetermined.” Defendant has never been charged with any crime or offense relating to her mother’s death.
On September 4, 1998, defendant flew to California to attend her daughter’s wedding. Five days later, on September 9, the Neptune Township Police received a report of a red Mazda parked on Central Avenue in Ocean Grove that was emitting a foul odor. A Neptune police officer used a tool to open the door and saw a “lumpy mass” of clothing and a garment bag inside. Under the clothing was the badly decomposed body of a woman later identified as Tracey Roche. The body was unclothed except for some jewelry and was wrapped in plastic bags. Interviews of individuals in the area indicated that the Mazda had been there as early as September 4. The death of Tracey Roche was determined to be a homicide. Among the several contributing factors to her death were “multiple sharp force and blunt force injuries involving mainly the head.”
On September 10, 1998, the day after Tracey Roche’s body was discovered, Captain Phillip George of the Monmouth County Prosecutor’s Office telephoned defendant in San Diego. Defendant told him that she had last seen Tracey on either Thursday, August 26, or Friday, August 27, when they had lunch in Avon at a restaurant called The Columns. She said that Tracey went home after lunch and that she received several calls from Tracey over the next two days complaining about her mother, Irene. Defendant added that on Sunday, August 30, Tracey called to invite her to meet at The Columns, but defendant declined because her mother had just died. Defendant stated that she saw Tracey’s car parked in her driveway later that day and found a note in her door from Tracey saying that she was in the area. Defendant claimed that she left her door open that night but never saw or spoke with Tracey before leaving for California on September 4.
Also on September 10, 1998, New Jersey State Police forensic personnel tested the stain in defendant’s driveway that Patrolman Torchia had observed. The results were positive for blood. A search warrant for defendant’s residence was executed the next day. Although the apartment initially appeared clean and neat, the officers executing the warrant soon suspected that furniture had been rearranged. Careful examination revealed that pieces of carpeting under furniture had been removed and towels, newspapers and blankets were placed over bloodstained floorboards. DNA tests of the blood revealed that it came from Tracey Roche.
On Sunday, September 13, 1998, investigators interviewed defendant in California. They observed cuts on both of her hands. She reiterated that she had last seen Tracey when they had lunch at The Columns. Defendant indicated that she knew Tracey would be in Ocean Grove on Sunday, August 30, but she had told Tracey that they could not get together because of Mabel’s death. Defendant repeated that she never saw Tracey again, although she saw Tracey’s car parked at her home later that day and found a note from Tracey in her door. She claimed that Tracey was meeting a different friend in Avon.
During the interview, defendant explained that the blood in her apartment and cuts on her hands came from a violent encounter with an intruder in her home who attacked her when she returned from a walk on Sunday, August 30. Defendant stated that she ran out of the apartment, hid in the bushes and then went to the beach where she spent the night. When she returned the next morning, she found her apartment a mess and blood on the carpet from the cuts on her hands. Defendant explained that she cleaned up the blood because she did not want the landlord to be angry with her.
On January 10, 2000, defendant was indicted for the murder of Tracey Roche, in violation of N.J.S.A. 2C:11-3, and for two counts of possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4d. The State filed a motion in limine, seeking to use at trial statements made by the victim, Tracey Roche, to her mother, Irene Roche, pursuant to New Jersey Rule of Evidence 803(c)(3). The State sought to use those statements to establish defendant’s motive for killing Tracey Roche. The State’s theory was that defendant killed Tracey Roche to eliminate the chance that she would implicate defendant in the death of defendant’s mother, Mabel Long, or raise the suspicion that defendant was involved in Mabel Long’s death.
At the hearing conducted on that motion, the State argued that although the proffered statements by Irene were hearsay, they should be admitted into evidence under the state of mind exception to the hearsay rule, N.J.R.E. 803(c)(3). Defendant argued that the statements should be excluded pursuant to N.J.R.E. 404(b) as improper evidence of other crimes or wrongs that tended to show disposition to commit the charged offense.
The court granted the State’s motion in part, ruling that the following items could be admitted into evidence: (1) the victim’s intention to go to defendant’s house on August 30, 1998, stay overnight at defendant’s house, and return to her own home on August 31, 1998; and (2) the victim’s plan with her mother, Irene, to telephone defendant’s house on August 31, 1998, if it was getting late and Tracey had not yet returned home. The court held that those statements showed the victim’s intention to meet with defendant, and thus were admissible under the state of mind exception to the hearsay rule, N.J.R.E. 803(c)(3).
However, the court held inadmissible: (1) Tracey’s statement to Irene that defendant’s mother, Mabel, fell down the steps on August 27, 1998 and (2) Tracey’s statement to Irene that defendant’s mother, Mabel, died on August 28, 1998. The court found that those statements were other-crime evidence under N.J.R.E. 404(b). The court found that although the first and second prongs of State v. Cofield, 127 N.J. 328 (1992), had been satisfied in that proof of a motive for killing Tracey was a material issue and that the death of Tracey Roche was similar in kind and reasonably close in time to the death of Mabel Long, the other Cofield prongs could not be met. The court held that there was no clear and convincing evidence, as required by the third prong of Cofield, that defendant was involved in the death of Mabel Long because the medical examiner had not ruled the death to be a homicide. Under the fourth prong of the Cofield test, which requires the probative value of the evidence to be outweighed by any apparent prejudice, the court held that
the prejudice is really overwhelming if it comes out in front of the jury that [defendant] is suspected of and is being implicated in the death of her mother Mabel Long; and the reason she killed Tracey Roche was to cover up the possibility that she killed her mother Mabel Long. It is going to be next to impossible, it is going to be impossible really for any curative instruction to deal with that. So that prejudice is really overwhelming.
. . . .
Accordingly, I’m not going to allow any reference to the motive evidence that
[defendant] killed Tracey Roche to cover up the murder of Mabel Long.
The Appellate Division denied the State’s motion for leave to appeal the court’s
order. This Court granted the State’s motion for leave to appeal and summarily
remanded the matter to the Appellate Division to hear the appeal on the
merits.
167 N.J. 83 (2001).
On remand, the Appellate Division affirmed the Law Division’s order in an unpublished
opinion. The court found that the lower court did not abuse its discretion
in ruling “that the inflammatory nature of Irene’s proposed testimony and its use
carried a risk of prejudice and confusion that outweighs its uncertain probative value.”
The Appellate Division relied on the fact that “[d]efendant has not been charged
with murdering her mother, and the medical examiner has not determined the death
to be a homicide.” It reasoned that “[t]he proposed testimony raises issues of
prejudice and potential jury confusion to a degree that a proper limiting instruction
is hard to fathom.”
The State again sought leave to appeal to this Court. We granted the
State’s application,
170 N.J. 202 (2001), and now reverse.
II.
A.
The State, through the Monmouth County Prosecutor, argues that Tracey Roche’s declarations to Irene Roche about how and when Mabel Long died are intertwined inextricably with Tracey Roche’s murder and support a strong motive for defendant to murder Tracey. It argues that the Appellate Division failed to consider whether Tracey Roche’s declarations fell within an exception to the hearsay rule, and engaged solely in a Rule 403 analysis of whether the evidence was more prejudicial than probative. The State maintains that defendant’s statements to Tracey Roche are not hearsay because their evidentiary value does not hinge on the truth of the statements, and that Tracey’s statements to Irene fall within the state of mind exception to the hearsay rule, N.J.R.E. 803(c)(3), because they provide a motive for Tracey’s murder——that she could inculpate defendant in the fall and death of Mabel Long.
Finally, the State contends that under a Rule 403 analysis, the probative value of the evidence outweighs its prejudicial effect. To support that conclusion, the State asserts that there is no less prejudicial evidence by which it can prove defendant’s motive to kill Tracey Roche and that any prejudice to defendant can be ameliorated by an appropriate limiting jury instruction.
Defendant argues that the courts below correctly excluded the motive evidence because its low probative value will have an overwhelmingly prejudicial effect on the jury. Defendant also contends that the inference that defendant killed Mabel Long is other-crime evidence and the State is unable to meet the four-pronged test for admissibility of such evidence under Cofield.
The Attorney General, as amicus curiae, agrees with the Monmouth County Prosecutor that defendant’s statements to Tracey Roche on August 27 and 28 regarding her mother’s fall and subsequent death are not hearsay because they are not being offered for the truth of the matter asserted. In addition, the Attorney General argues that if defendant’s statements are considered hearsay, they are admissible as res gestae evidence under the state of mind exception to the hearsay rule, N.J.R.E. 803(c)(3), because they indicate defendant’s motive for the murder of Tracey Roche, or they are admissible under the present sense impression exception, N.J.R.E. 803(c)(1), or the excited utterance exception, N.J.R.E. 803(c)(2), to the hearsay rule. Finally, the Attorney General argues that an analysis of the evidence as other-crime evidence under Rule 404(b) is not necessary because it is admissible as res gestae evidence and not as other-crime evidence.
Preliminarily, it is important to make clear the specific evidence, rejected by the trial court, that the State seeks to have admitted during the trial. That evidence can be described as two statements made by defendant to Tracey, who then told Irene Roche what defendant had said to her. The first statement concerns the conversation defendant had with Tracey on Thursday, August 27, when defendant told Tracey that defendant’s mother had fallen down the steps that day (August 27 statement). The second statement relates to a conversation defendant had with Tracey on Friday, August 28, when defendant informed Tracey that defendant’s mother had died that day (August 28 statement). Collectively, those two statements comprise the motive evidence at issue in this case. The State seeks to introduce those two statements as evidence through Irene’s testimony that Tracey told her what defendant said about Mabel’s fall and death.
The determination whether the motive evidence is admissible requires a multi-level analysis. First, we must decide whether either one or both of the motive evidence statements made by defendant to Tracey on August 27 and 28 were hearsay, and if so, whether they are admissible under any exception to the hearsay rule. Second, if those statements are found to be admissible, regardless of whether or not they are hearsay, the Court also must decide whether those statements should be excluded under a Rule 404(b) and/or a Rule 403 analysis.
We turn now to whether defendant’s statements to Tracey Roche during their telephone conversations that Mabel Long had fallen down the stairs on August 27 and had died on August 28 constitute hearsay when presented through Irene’s testimony. Hearsay is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” N.J.R.E. 801(c). Under that definition, the hearsay rule applies when a declaration is offered to prove the truth of the statement attributed to the declarant. State v. Marshall, 123 N.J. 1, 132 (1991), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed.2d 694 (1993); State v. Johnson, 216 N.J. Super. 588, 600 (App. Div. 1987). It follows, therefore, that if evidence is not offered for the truth of the matter asserted, the evidence is not hearsay and no exception to the hearsay rule is necessary to introduce that evidence at trial. State v. Chavies, 345 N.J. Super. 254, 274 (App. Div. 2001). But if proffered evidence is hearsay, it can be admitted only pursuant to one of the exceptions to the hearsay rule. N.J.R.E. 802.
Whether either or both of the statements are hearsay depend on the State’s intended use of them and who will present that testimony at the trial. We agree with the State that, when the two statements are presented at the trial by Irene to show that defendant predicted the precise manner and cause of Mabel’s death days before it happened, the statements are not hearsay because they are not offered for the truth of the matter——that Mabel actually fell on August 27 and died on August 28. Spragg v. Shore Care, 293 N.J. Super. 33, 56-57 (App. Div. 1996). It is undisputed that Mabel did not die until August 30. On the other hand, the State concedes that when Irene testifies at the trial concerning what Tracey told her, the State must prove that Tracey accurately reported to Irene what defendant told her and that the State must rely on hearsay to do so. Because the State must rely on hearsay to prove that defendant actually made the two reputed statements to Tracey, we conclude that the two statements must be treated as hearsay as between defendant and Tracey and as between Tracey and Irene. That said, we must decide whether any exception to the hearsay rule applies to the statements as required by N.J.R.E. 802.
The two statements do not fit neatly into any one exception to the hearsay rule. Nonetheless, we conclude that the statements are part of the res gestae of Tracey’s murder, N.J.R.E. 803(c)(3), and that the standard enunciated regarding the admission of evidence pursuant to the excited utterance exception, N.J.R.E. 803(c)(2), helps to corroborate the trustworthiness of the two statements.
The ancient res gestae concept, now codified in N.J.R.E. 803(c)(3) and is referred to as the state of mind exception, covers “statement[s] made in good faith of the declarant’s then existing state of mind, emotion, sensation or physical condition (such as intent, plan, motive, design, mental feeling, pain, or bodily health). . . .” N.J.R.E. 803(c)(3) (emphasis added). Despite the urging of some to abandon the use of the principle denominated as res gestae, see 2 McCormick on Evidence § 268 (Strong ed., 5th ed. 1999); 2 Wigmore on Evidence § 218 (Tillers Rev. 1983), “[c]ourts continue to cling to it.” State v. L.P., 338 N.J. Super. 227, 241 (App. Div.) (Wefing, J.A.D., concurring), certif. denied, 170 N.J. 205 (2001).
The res gestae concept has been used to admit a wide variety of evidence in both the criminal and civil context under circumstances that are now codified as hearsay exceptions in the New Jersey Rules of Evidence. See, e.g., Hansen v. Eagle-Picher Lead Co., 8 N.J. 133, 146 (1951) (holding that declarations by agent were admissible as res gestae evidence “only if they are so concomitant with the main fact under consideration and so connected with it as to illustrate its character”); Trenton Passenger Ry. Co., Consol. v. Cooper, 60 N.J.L. 219, 221-22 (E. & A. 1897) (holding that “ejaculatory words” were admissible as res gestae evidence because they were “part of what occurred”); Hunter v. State, 40 N.J.L. 495, 536-38 (E. & A. 1878) (holding that letter and declarations showed decedent’s present intent to meet defendant in Philadelphia and were admissible under res gestae exception); Luse v. Jones, 39 N.J.L. 707, 711 (E. & A. 1877) (holding that writings and declarations describing sale of furniture were admissible as part of res gestae because they were recorded contemporaneously with sale); Donnelly v. State, 26 N.J.L. 601, 612 (E. & A. 1857) (holding that victim’s declaration shortly before he died about “[t]he cause of the injury, stated in such immediate connection with the manner of his receiving it, and so shortly after it was received, . . . may be admissible in evidence, as part of the res gestae”). While the res gestae exception has been characterized “as a shorthand reference to the principles contained in [at least] two exceptions to the rule excluding hearsay evidence pertaining to spontaneous and contemporaneous statements, and pertaining to statements of physical or mental condition of declarant and related history,” State v. Schumann, 111 N.J. 470, 479 (1988) (citations omitted), the exception historically applied to more than just excited utterances under Rule 803(c)(2) or present sense impressions under Rule 803(c)(1).
Despite its hearsay character, res gestae evidence is considered reliable because the surrounding circumstances guarantee its trustworthiness. That is,
the admissibility of the proofs as res gestae has as its justifying principle that truth, like the Master’s robe, is of one piece, without seam, woven from the top throughout, that each fact has its inseparable attributes and its kindred facts materially affecting its character, and that the reproduction of a scene with its multiple incidents, each created naturally and without artificiality and not too distant in point of time, will by very quality and texture tend to disclose the truth.
[Robertson v. Hackensack Trust Co.,
1 N.J. 304, 312 (1949).]
Thus, “[i]t may be regarded as long since settled in this State that
a person’s own statements of a present existing state of mind, when made
in a natural manner and under circumstances dispelling suspicion and involving no suggestion
of sinister or improper motives, reflect his mental state and are competent to
prove the condition of his mind——that is, his plan or design.” State v.
Thornton,
38 N.J. 380, 390 (1962). “The rule . . . is that
where the declaration is concomitant with the main fact under consideration and is
so connected with it as to illustrate its character, it may be proved
as part of the res gestae; but, where it is merely narrative of
a past occurrence, it cannot be received as proof of the character of
that occurrence.” Blackman v. W. Jersey & Seashore R.R. Co., 68 N.J.L. 1,
2 (Sup. Ct. 1902). In some cases, courts focused narrowly on whether the
declaration was spontaneous, exclamatory and contemporaneous, and refused to admit declarations that were
not uttered coincidentally with the happening of an event. E.g., State v. Simmons,
52 N.J. 538, 542 (1968) (holding that rape victim’s identification of attacker was
admissible as either res gestae or spontaneous declaration because victim “was still in
a state of excitement”), cert. denied,
395 U.S. 924,
89 S. Ct. 1779,
23 L. Ed.2d 241 (1969); State v. De Paola,
5 N.J. 1,
15 (1950) (stating that “[t]o be admissible as part of the res gestae
the statement must have been made spontaneously under conditions such as to preclude
calm reflection and eliminate any opportunity for composing a self-serving declaration”). However, this
Court noted in Cestero v. Ferrara,
57 N.J. 497, 502 (1971), that
in more recent times the res gestae concept has been considerably broadened and
the requirement for strict contemporaneity has been modified. Now evidence of declarations made
under the immediate influence of the principal transaction or occurrence is admissible. They
need not be concomitant or coincident with the exciting stimulus; they may be
subsequent providing that in the light of all the circumstances it may be
said reasonably that the exciting influence had not lost its sway or had
not been dissipated in the interval.
[(Citation omitted).]
Under this modern trend, our courts have admitted evidence as part of the
res gestae because of the connection between the evidence and the crime for
which a defendant is charged even where there is an interval of time
between the occurrence and the declaration to which it relates and even in
factual situations that pose a risk of prejudice to the defendant. In the
capital case of State v. Martini,
131 N.J. 176, 239-40 (1993), cert. denied,
516 U.S. 875,
116 S. Ct. 203,
133 L. Ed.2d 137 (1995),
we held that the defendant’s threats against the victim’s spouse and the theft
of the victim’s car were “part and parcel” of a kidnapping rather than
other-crime evidence. The defendant’s actions “serve[d] to paint a complete picture of the
relevant criminal transaction” and therefore were admissible. Id. at 242. Further, a limiting
instruction was unnecessary because the evidence was admitted under the res gestae exception.
Ibid.
Similarly, in State v. Cherry, 289 N.J. Super. 503, 522 (App. Div. 1995),
evidence that the defendant and two other men planned to rob a bar
shortly before a police officer was murdered outside the bar was admitted as
part of the res gestae of the murder. The court held that “[e]vidence
of events that take place during the same time frame as the crime
charged in the indictment will not be excluded if the evidence establishes the
context of the criminal event, explains the nature of, or presents the full
picture of the crime to the jury.” Ibid. Accord State v. L.P., supra,
338 N.J. Super. at 236 (stating that evidence is admissible as res gestae
of criminal event if it involves “an identifiable, overriding objective that ties together
disparate conduct”); State v. Torres,
313 N.J. Super. 129, 160-61 (App. Div.) (holding
that testimony that defendant sold jewelry in exchange for cash and cocaine and
tried to bribe corrections officers with cash and jewelry was res gestae evidence
necessary to establish full nature of robbery of jewelry store, not other-crime evidence),
certif. denied,
156 N.J. 425 (1998); see also State v. Ehlers, 98 N.J.L.
236, 246 (E. & A. 1922) (holding that defendant’s statement that he killed
his wife and son was admissible as part of res gestae because it
was made immediately after and was connected to act); State v. Overton, 85
N.J.L. 287, 291 (E. & A. 1913) (holding that evidence that defendant did
not want to marry wife and did so only after he was arrested
on bastardy charge was part of res gestae and relevant to defendant’s motive
to kill her).
The res gestae or state of mind exception can be used to prove
or explain acts or conduct of a defendant-declarant. Such statements of a defendant-declarant
are admissible “because they are so connected with an act, itself admissible as
part of the res gestae, as to have become incorporated with it.” Hunter
v. State, supra, 40 N.J.L. at 537. Here, Tracey had no sinister reason
to fabricate the statements and she reported them to her mother almost contemporaneously
as she heard them over the telephone. Those circumstances enhance the trustworthiness of
the statements. In addition, it was natural for Tracey to tell Irene that
defendant had just said that Mabel had fallen down the stairs and died
because Tracey and defendant had been friends for a long time. Moreover, the
time between when the statements were made by defendant to Tracey and the
time of Tracey’s death was less than seventy-two hours.
To summarize, a review of our case law reveals a sound justification to
admit into evidence the extra-judicial declarations made by defendant.
Declarations . . . by the accused prior to the criminal event .
. . are admitted notwithstanding their “hearsay” character . . . . [because]
the behavior of . . . the defendant [is] part of the mosaic
of the criminal event, and hence, insofar as [the defendant’s] declarations bear upon
either the quality of [the defendant’s] acts or a relevant state of mind,
[the declarations] must be accepted as part and parcel of the critical scene.
[State v. Baldwin,
47 N.J. 379, 394, cert. denied,
385 U.S. 980,
87 S. Ct. 527,
17 L. Ed.2d 442 (1966).]
Such declarations are deemed to be an integral part of the criminal scene
because they bear on the quality of the defendant’s act or his or
her intent or motive. Ibid.
Contrary to the trial court’s conclusion that the two statements are other-crime evidence,
a conclusion that was not addressed by the Appellate Division, we hold that
the statements are part of the res gestae of Tracey’s murder; they satisfy
the state of mind exception and are not other-crime evidence. As such, the
statements are admissible under N.J.R.E. 803(c)(3). Proof of defendant’s motive to kill Tracey
establishes the context of the criminal event and assists in presenting the full
picture of the crime to the jury. State v. Martini, supra, 131 N.J.
at 242. Those statements are “woven into the fabric of the . .
. crime, and [are] inseparable from” Tracey’s subsequent death. State v. Mule, 114
N.J.L. 384, 392 (E. & A. 1935). The declarations were made by defendant
prior to the murder of Tracey and should be admitted as res gestae
evidence because they are part of the “mosaic” of the criminal event. State
v. Baldwin, supra, 47 N.J. at 394.
The Attorney General also argues that the statements are admissible under the excited utterance exception to the hearsay rule, N.J.R.E. 803(c)(2). Under that Rule, an excited utterance is defined as “[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition and without opportunity to deliberate or fabricate.” Ibid. The Rule is “based upon the premise that the excitement caused by the observation of a startling event insures the reliability of a spontaneous statement about it made at or near the time of the event’s occurrence.” Biunno, Current N.J. Rules of Evidence, comment 1 on N.J.R.E. 803(c)(2), at 905 (2002). The Rule requires that (1) there was a startling event, (2) the statement was made while the declarant was under the stress of excitement from that event, and (3) the statement related to that event. 6 Wigmore on Evidence § 1750, at 203-04, 222 (Chadbourn rev. 1976). The rationale for the excited utterance exception lies in the notion that “excitement suspends the declarant’s powers of reflection and fabrication,” consequently minimizing the possibility that the utterance will be influenced by self interest and therefore rendered unreliable. 2 McCormick on Evidence § 272, at 204-05 (5th ed. 1999); see also United States v. Joy, 192 F.3d 761, 766 (7th Cir. 1999), cert. denied, 530 U.S. 1250, 120 S. Ct. 2704, 147 L. Ed.2d 974 (2000); State v. Williams, 106 N.J. Super. 170, 172 (App. Div.), certif. denied, 55 N.J. 78 (1969), cert. denied, 397 U.S. 1057, 90 S. Ct. 1405, 25 L. Ed.2d 675 (1970); accord State v. Lazarchick, 314 N.J. Super. 500, 522 (App. Div.), certif. denied, 157 N.J. 546 (1998).
In deciding whether there was an opportunity to fabricate or deliberate, a court should consider “the element of time, the circumstances of the incident, the mental and physical condition of the declarant, and the nature of the utterance.” State v. Williams, supra, 106 N.J. Super. at 172. “The hearsay statement need not be contemporaneous with the startling event . . . as long as there is a showing that the interval was brief and the excited state of the declarant continued.” State v. Clark, 347 N.J. Super. 497, 506 (App. Div. 2002) (citations omitted). Courts must use a fact-specific analysis to determine whether a statement made after a specific period of time will qualify as an excited utterance. State v. Lyle, 73 N.J. 403, 411-13 (1977) (holding that hearsay statement of victim was admissible where victim escaped defendant and two minutes later described defendant’s acts to his sister); State v. Lazarchick, supra, 314 N.J. Super. at 524 (holding that victim’s statement to mother was excited utterance despite delay of approximately one hour after startling encounter with police officers); State v. Bass, 221 N.J. Super. 466, 482-83 (App. Div. 1987) (holding that declaration by five-year-old eyewitness to his brother’s murder six hours after the event was “truly spontaneous and made solely under stress of nervous excitement”), certif. denied, 110 N.J. 186 (1988); cf. State v. Williams, supra, 106 N.J. Super. at 173 (holding that delay of twenty minutes prevented defendant’s statements from being spontaneous). Thus, even a somewhat lengthy delay will not always prevent a statement from being admissible under Rule 803(c)(2). Rather, the Rule focuses on whether nervous excitement was generated, whether there was a reasonable proximity in time between the event and the declarant’s subsequent description of it, and whether there was a lack of opportunity to deliberate or fabricate the circumstances. State v. Lyle, supra, 73 N.J. at 413.
Viewing defendant as the declarant when she made the statements to Tracey, the record does not satisfy the standard established under N.J.R.E. 803(c)(2). Both statements were deliberately fabricated by defendant and were not made under any stress related to the occurrence of a startling event. Therefore, the required fact-specific analysis concerning defendant-declarant cannot be satisfied.
To the extent that the admissibility of those statements turns on Tracey’s mental state at the time she told Irene what defendant had said to her about Mabel’s fall and death, see State v. Machado, 111 N.J. 480, 487 (1988), Rule 803(c)(2) has been satisfied. As noted previously, Tracey had no reason to misrepresent what defendant had told her. She repeated the statements to her mother almost contemporaneously as she heard them over the telephone. The August 27 and August 28 statements were startling to Tracey because she exclaimed, “Oh my God,” “Oh I’m so sorry,” and asked, “Is there anything I can do?” Clearly, those facts demonstrate that Tracey was under the stress of excitement caused by defendant’s statements to her that Mabel, her friend’s mother, had fallen and died. There was no opportunity for Tracey to fabricate before recounting the statements to Irene. We hold, therefore, that Tracey’s statements to Irene concerning what defendant had told Tracey are admissible under Rule 803(c)(2) exception to the hearsay rule.
Next, we address whether the statements that are admissible under the res gestae (state of mind) exception to the hearsay rule, N.J.R.E. 803(c)(3), and the excited utterance exception, N.J.R.E. 803(c)(2), are subject to a balancing under N.J.R.E. 403, N.J.R.E. 404(b), or both. Defendant’s statements to Tracey are admissible to establish defendant’s motive for murdering Tracey. Because the motive evidence is not being admitted as other-crime evidence, there is no need to conduct a Rule 404(b) analysis. The Rule addressing the admissibility of other-crime evidence, N.J.R.E. 404(b), “does not apply to uncharged acts of misconduct that are components of the crime that is the subject of the trial.” State v. Martini, supra, 131 N.J. at 241; State v. Byard, 328 N.J. Super. 106, 113-14 (App. Div.), certif. denied, 165 N.J. 490 (2000); State v. Cherry, supra, 289 N.J. Super. at 522; State v. Ortiz, 253 N.J. Super. 239, 243-44 (App. Div.), certif. denied, 130 N.J. 6 (1992). Here, the motive evidence relates to Tracey’s murder rather than any uncharged acts of misconduct related to Mabel’s death. However, both res gestae (state of mind) evidence and evidence admissible pursuant to the excited utterance exception to the hearsay rule are subject to Rule 403 balancing.
The purpose of a Rule 403 balancing is to determine whether the risk of prejudice to defendant in admitting the motive evidence outweighs its probative worth. The State contends that defendant’s motive for killing Tracey was to prevent Tracey from implicating defendant in her mother’s death based on what defendant told Tracey about the death of Mabel three days before Mabel died. Although the emphasis will not be on defendant’s criminal responsibility for the death of her mother, that evidence will likely raise a suggestion or an inference in the minds of jurors regarding defendant’s culpability for her mother’s death. For that reason, the probative value–prejudicial impact analysis under Rule 403 and Rule 404(b) are the same. We, therefore, look to the standard articulated by this Court in the seminal case of State v. Cofield.
Cofield established the following four-part test to determine when other-crime and civil-wrong evidence is inadmissible:
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.
[State v. Cofield, supra, 127 N.J. at 338 (citation omitted).]
“[T]he balancing test of Cofield’s fourth prong . . . incorporates the traditional
balancing test of Rule 403.” State v. Hernandez,
170 N.J. 106, 127 (2001).
That prong requires the State to establish that the probative value of the
statements made by defendant to Tracey are not outweighed by its apparent prejudice.
Whether the proffered evidence of defendant’s motive for murdering Tracey is “outweighed by
its prejudicial effect on defendant must be pragmatically evaluated in the context in
which that evidence [will be] offered.” State v. Marrero,
148 N.J. 469, 491
(1997); State v. Stevens,
115 N.J. 289, 303 (1989).
Historically, motive evidence has been treated differently by our courts even under a
Rule 404(b) analysis:
New Jersey courts generally admit a wider range of evidence when the motive
or intent of the accused is material. That includes evidentiary circumstances that “tend
to shed light” on a defendant’s motive and intent or which “tend to
fairly explain [a defendant’s] actions,” even though they may have occurred before the
commission of the offense [for which the defendant is on trial].
[State v. Covell,
157 N.J. 554, 565 (1999) (citing and quoting State v.
Rogers,
19 N.J. 218, 228 (1955)).]
Although this Court has imposed a stringent standard for the admission of other-crime
evidence, our courts have not frequently excluded highly prejudicial evidence under the fourth
prong of Cofield. In State v. Morton,
155 N.J. 383, 452 (1998), cert.
denied,
532 U.S. 931,
121 S. Ct. 1380,
149 L. Ed.2d 306
(2001), a capital case involving the felony murder of a gas station attendant,
the State was permitted to introduce testimony that the defendant and a co-defendant
had planned to rob a bank or another gas station prior to the
murder for which they were on trial. That evidence was introduced to prove
the defendant’s state of mind. Ibid. In State v. Marrero, supra, 148 N.J.
at 490-91, evidence that the defendant was awaiting sentencing on an earlier sexual
assault was admissible to establish a motive for killing a subsequent aggravated-sexual-assault victim
to avoid an enhanced prison term on the first assault. In State v.
Nance,
148 N.J. 376, 388-90 (1997), we held that evidence that the defendant
was jealous of the victim was admissible to prove his motive for murder.
In State v. Martini, supra, 131 N.J. at 339-42, another capital case, this
Court did not find too prejudicial evidence that defendant had made threats against
the murdered victim’s wife prior to the murder. In State v. Erazo,
126 N.J. 112, 130-31 (1991), another capital case, the State was allowed to introduce
evidence of a prior eleven-year old murder to establish motive, namely that the
defendant killed the victim to prevent her from causing a revocation of his
parole from his sentence on the earlier conviction. This Court allowed the use
of that evidence as “necessary to prove the State’s theory of [the] defendant’s
motive.” Id. at 131.
The Appellate Division has rendered similar holdings. E.g., State v. T.C.,
347 N.J.
Super. 219, 231-36 (App. Div. 2002) (holding that evidence of defendant’s earlier abuse
of her child was admissible to show intent and prejudice did not outweigh
probative value); State v. Cusick,
219 N.J. Super. 452, 464-67 (App. Div.) (holding
that evidence defendant had sexually assaulted three six-year old girls was admissible to
establish motive, intent and absence of mistake in subsequent trial for aggravated assault
on eight-year old girl), certif. denied,
109 N.J. 54 (1987).
Notwithstanding the fact that the Appellate Division found the risk of undue prejudice
high in this case, the State argues that “any evidence which logically tends
to show a motive, or which fairly tends to explain the conduct of
the accused, should be permitted,” and “evidence as to motive is admissible even
though it may be prejudicial in the sense that it will arouse or
inflame the jury against the defendant.” State v. Carter,
91 N.J. 86, 102,
106 (1982) (quoting 1 Wharton on Criminal Evidence § 170, at 316-18 (13th ed.
1972)). “Evidence claimed to be unduly prejudicial is excluded only when 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 issues in the case.” State v. Koskovich,
168 N.J. 448, 486 (2001) (quoting State v. Thompson,
59 N.J. 396, 421 (1971)).
“The mere possibility that evidence could be prejudicial does not justify its exclusion.”
State v. Morton, supra, 155 N.J. at 453-54. Certainly, the motive evidence sought
to be introduced in this case is, at the very least, no more
prejudicial than the objectionable evidence permitted in cases such as Morton, Marrero, Nance,
Martini, Erazo, T.C. and Cusick. Furthermore, “certain types of evidence, including evidence of
motive or intent, ‘require a very strong showing of prejudice to justify exclusion.’”
State v. Koskovich, supra, 168 N.J. at 486 (quoting State v. Covell, supra,
157 N.J. at 570).
In deciding whether to exclude evidence based on its potential for prejudice, “a
court must consider the availability of other evidence that can be used to
prove the same point.” State v. Covell, supra, 157 N.J. at 569. Probative
value is enhanced by the absence of such other evidence. Ibid.; State v.
Stevens, supra, 115 N.J. at 303 (requiring trial courts to consider whether other
evidence can serve same purpose for which other-crime evidence is proffered). On the
other hand, relevant evidence loses some of its probative value if there is
other less inflammatory evidence available to prove that point. State v. Covell, supra,
157 N.J. at 569; State v. Chavies, supra, 345 N.J. Super. at 273-74
(finding that portions of murder victim’s diary about her pregnancy and defendant’s illegal
use of her credit cards was highly prejudicial and should not have been
admitted because other less prejudicial evidence existed to demonstrate same facts).
We acknowledge that the introduction of defendant’s statements will likely create some prejudice,
but the evidence regarding motive has extremely high probative value. That high probative
value and the absence of any other source to establish motive must be
weighed pragmatically against the reality that “[v]irtually any evidence of ‘other crimes’ will
probably entail some risk of prejudice to a defendant.” State v. Mazowski,
337 N.J. Super. 275, 287 (App. Div. 2001). Similarly, “[t]hat evidence is shrouded with
unsavory implications is no reason for exclusion when it is a significant part
of the proof. The unwholesome aspects, authored by defendant himself [or herself], if
the evidence be believed, [is admissible if] inextricably entwined with the material facts.”
State v. West,
29 N.J. 327, 335 (1959).
Our conclusion that the motive evidence should not be excluded under Rule 403
is influenced by the fact that there is no other less prejudicial evidence
available to establish defendant’s motive for killing her friend. The absence of less
prejudicial evidence to establish motive enhances the probative value of the motive evidence
because it is “necessary to prove the State’s theory of defendant’s motive,” State
v. Erazo, supra, 126 N.J. at 131, for murdering a friend when the
surrounding circumstances of the crime make it difficult to infer a motive. In
arguing against the admissibility of the motive evidence, defendant points out that she
has never been charged for any crime relating to the death