SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
State v. Zarik Rose (A-111-09)(065010)
Argued January 4, 2011 -- Decided June 8, 2011
LaVecchia, J., writing for a majority of the Court.
In this appeal the Court addresses whether evidence of defendant’s previous indictment and incarceration on the charge of attempting to murder the victim is admissible in defendant’s trial for the murder of the victim. The Court also considers the continued invocation of res gestae as a basis for the admission of evidence.
Defendant was incarcerated in 1995 on charges relating to the attempted murder of Charles Mosley, the murder victim in the present appeal. While in jail awaiting trial on attempted murder, defendant met Salvatore Puglia and Larry Graves, both of whom appeared as witnesses for the State at defendant’s murder trial. According to Puglia, defendant told him that he wanted to have Mosley “whacked.” Puglia later helped police with their investigation by wearing a wire and recording defendant making incriminating statements.
Graves testified that defendant solicited him to kill Mosley, promising in return $2,000 to $3,000 and a quantity of drugs. Upon his release from jail, Graves complied with defendant’s plans and killed Mosley. After his arrest, Graves pled guilty to aggravated manslaughter and agreed to testify against defendant.
The State’s proposed use of evidence about defendant’s indictment for attempted murder of Mosley was reviewed pretrial and declared admissible. The trial court found some of the evidence admissible as res gestae and other portions admissible under New Jersey Rule of Evidence 404(b). During trial, the court provided limiting instructions to channel the jury’s use of that evidence.
On appeal, defendant argued, among other things, that all evidence relating to the fact that he was incarcerated on charges of the attempted murder of Mosley was improperly admitted. The Appellate Division affirmed, but based on a different analysis than the trial court. This Court granted certification limited to the issue of the admissibility of the evidence pertaining to defendant’s prior indictment and incarceration on charges that he attempted to murder the victim. State v. Rose, 203 N.J. 96 (2010).
HELD: The disputed evidence was admissible under the New Jersey Rules of Evidence. It properly went to defendant’s motive, intent and plan, and the probative value of the evidence was not outweighed by its prejudice. In this appeal, the Court also ends the practice of invoking res gestae as an explanation for the admission of evidence.
1. Evidence Rule 404(b) governs the admissibility of other-crimes evidence. A straightforward application of that Rule leads to the conclusion that defendant suffered no error due to the admission of the disputed evidence about his former indictment. That evidence was relevant to material issues in dispute at trial, namely defendant’s motive for having Mosley killed, his intent that Graves kill Mosley, and the plan that he formulated with Graves on how to kill Mosley. Moreover, the introduction of this evidence was not overly prejudicial. It was admitted for the proper purpose of explaining why defendant committed this particular crime. Although the trial court did not analyze all of the evidence under Rule 404(b), it did provide appropriate jury instructions to limit the prejudice suffered by defendant as if all the evidence had been scrutinized through Rule 404(b)’s filter. In sum, this Court’s independent analysis leads to the conclusion that the evidence in issue would have been admissible under Rule 404(b). Defendant suffered no error, let alone reversible error, as a result of the admission of the evidence. (pp. 21-35)
2. The various positions taken by counsel, the trial court, and the Appellate Division as to how to analyze the disputed misconduct evidence demonstrate that there exists confusion and uncertainty about the use of the common law doctrine of res gestae, and its very status as a viable feature of New Jersey’s evidence jurisprudence. Res gestae translates from Latin as “things done,” and from that translation springs its conceptualization both as an independent hearsay exception and as a shorthand reference to intrinsic evidence of a singular transaction or event. The uses of res gestae as a hearsay exception are now recognized as the predecessors to the codified hearsay exceptions in the Rules of Evidence. The codified Rules should be applied to hearsay evidence of all forms, including that which has heretofore been described as res gestae. (pp. 36-49)
3. The more confounding use of res gestae arises in its complication and derailing of the analysis of misconduct evidence called for under Rule 404(b), a problem this case so well demonstrates. Evidence that is intrinsic to the charged crime (which directly proves the offense or concerns acts performed contemporaneously with the offense) must only satisfy the evidence rules relating to relevancy. See Evid. R. 401, 402. Rule 403 provides for the admission of such evidence unless its probative value is “substantially outweighed” by it prejudice. Evidence of uncharged misconduct that is not intrinsic evidence of the crime is inadmissible unless proffered for a proper purpose. Such evidence can be admitted only under the more stringent requirements of Rule 404(b). The Court directs trial courts to make the Rules of Evidence the touchstone for the analysis of all bad acts categories of res gestae evidence, and disapproves further use of res gestae to support evidential rulings. (pp. 49-62)
The judgment of the Appellate Division is AFFIRMED AS MODIFIED.
JUSTICE RIVERA-SOTO, joined by JUSTICE HOENS, has filed a separate opinion, CONCURRING IN PART and DISSENTING IN PART, expressing the views that the majority’s discussion of the doctrine of res gestae is plain dicta, deserving of no jurisprudential value; and the majority’s reasoning and conclusions regarding the doctrine are ill-conceived and simply in error.
CHIEF JUSTICE RABNER; JUSTICES LONG, and ALBIN; and JUDGE STERN (temporarily assigned) join in JUSTICE LaVECCHIA’s opinion. JUSTICE RIVERA-SOTO filed a separate opinion concurring in part and dissenting in part in which JUSTICE HOENS joins.
SUPREME COURT OF NEW JERSEY
A- 111 September Term 2009
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ZARIK ROSE,
Defendant-Appellant.
Argued January 4, 2011 – Decided June 8, 2011
On certification to the Superior Court, Appellate Division.
Susan Brody, Assistant Deputy Public Defender, argued the cause for appellant (Yvonne Smith Segar, Public Defender, attorney).
Frank Muroski, Deputy Attorney General, argued the cause for respondent (Paula T. Dow, Attorney General of New Jersey, attorney; Mr. Muroski, Robyn B. Mitchell, Deputy Attorney General, and Ashlea D. Thomas, Special Deputy Attorney General, of counsel and on the briefs).
Alison S. Perrone argued the cause for amicus curiae Association of Criminal Defense Lawyers of New Jersey.
JUSTICE LaVECCHIA delivered the opinion of the Court.
Defendant Zarik Rose was convicted, as an accomplice, of the purposeful murder of Charles Mosley. The State’s theory at trial was that defendant arranged for the murder while in jail and about to go to trial on earlier charges that he had attempted to murder the victim. In this appeal, we address whether evidence of defendant’s previous indictment and incarceration on the pending attempted murder charges was admissible in defendant’s trial for murder.
The disputed evidence was introduced at trial through several sources, two of which deserve to be highlighted. Larry Graves testified that, while he and defendant were in jail together and Graves’s release date was approaching, defendant solicited him to kill Mosley. In fact, Graves pled guilty to aggravated manslaughter for killing Mosley and, pursuant to his agreement with the State, testified against defendant. Salvatore Puglia, who also met defendant while the two were in jail, testified that defendant had mentioned having Mosley “whacked” or making sure he did not testify in connection with the pending attempted murder charge against defendant. The State’s evidence about defendant’s pending indictment for attempted murder of Mosley, addressed through the anticipated testimony of Puglia and Graves, was reviewed pretrial by the trial court and declared admissible. The court determined that Graves’s testimony was admissible as res gestae, but circumspectly provided the jury with a limiting instruction about the use of the evidence. As for Puglia’s testimony, the trial court analyzed it under the rubric of New Jersey Rule of Evidence 404(b), found that it was not evidence of another crime but rather was evidence that involved this crime, and admitted the testimony after concluding that its probative value was not outweighed by its prejudicial effect. The court again provided a limiting instruction to channel the jury’s use of that evidence. During the trial, defendant stipulated to the admission of a copy of his indictment on the attempted murder charges.
Defendant was convicted of purposeful murder and, on appeal, the Appellate Division affirmed. However, in specifically finding no error in the admission of the disputed evidence, the panel engaged in a fundamentally different analysis based on Evidence Rules 401 and 403. We issued a limited grant of certification, State v. Rose, 203 N.J. 96 (2010), to address only the admissibility of the evidence pertaining to defendant’s prior indictment and incarceration on charges that he attempted to murder the victim, and now affirm the judgment of the Appellate Division. We conclude that the disputed evidence was admissible under a straightforward application of Evidence Rule 404(b). The evidence went to non-propensity purposes, chiefly motive, but also plan and intent by defendant, and the trial court provided instructions that properly limited the jury’s use of the evidence to those legitimate purposes.
That said, the various positions taken by counsel, the trial court, and the Appellate Division on how to analyze the disputed evidence relating to defendant’s previous indictment on charges for the attempted murder of the victim, demonstrate that there exists confusion and uncertainty about use of the common law doctrine of res gestae and its status as a viable feature of New Jersey’s evidence jurisprudence. Accordingly, we address in this appeal the continued invocation of res gestae as an explanation for the admission of evidence, and hold that the doctrine of res gestae no longer has vitality in light of the formal Rules of Evidence.
I.
To set the stage for our review of the evidential rulings in issue, we begin with a recitation of the facts involved in the criminal charges against defendant.
A.
In 1995, defendant was incarcerated on charges relating to the attempted murder of Charles Mosley, the murder victim in the present appeal. While in jail, defendant met Puglia,1 and explained to him that he and Mosley had an altercation over $1500 that Mosley owed him. According to Puglia, defendant told him that during that altercation “one thing led to another” and that Mosley subsequently “pressed some serious charges” against defendant that defendant felt were “overinflated.” Defendant told Puglia that he did not want Mosley to appear as a witness against him at trial and that “plan A was to pay [Mosley] off and plan B was to get him whacked.”
In the fall of 1997, while still in jail awaiting trial on the attempted murder charges, defendant became acquainted with Graves, a fellow inmate. According to Graves, defendant told him on several occasions that he needed Mosley killed because his trial was scheduled to start on December 1, and Mosley was to be the prosecution’s key witness. When Graves informed defendant that he was soon to be released from jail, defendant propositioned him: if Graves would kill Mosley, defendant would give him $2,000 to $3,000 and a quantity of drugs.
Graves agreed, so defendant conveyed pertinent details about Mosley: defendant gave him Mosley’s telephone number and address in Franklinville, New Jersey, and told him that Mosley sold automobiles from his home. They planned to have Graves express interest in a truck with an automatic lift, use that interest to gain entrance into an office located at the front of Mosley’s house, and then kill Mosley. Defendant also warned Graves that Mosley kept guns in his house. They further agreed that after the deed was done, Graves would inform defendant whether he had “sold the car,” which was code for having killed Mosley.
When Graves was released from jail on November 19, 1997, he went to his step-mother’s home in Glassboro, and from there, took a bus to Franklinville the next day. When he arrived at Mosley’s house, he found no one home, and his attempts to contact Mosley by telephone were unsuccessful. That night, defendant placed a collect call to Graves and asked whether Graves had “sold the car,” to which Graves responded that he had not, but that he planned to return to Mosley’s the following day. Graves returned to Mosley’s home the next day; again no one was home, but this time Graves managed to contact Mosley by phone. That night, defendant again called Graves and asked whether he had “sold the car.” When Graves responded in the negative, defendant sounded a “little bit . . . worried;” he instructed Graves to return the following day.
Graves returned the next day for a third time and found Mosley at home. He told Mosley that he wanted to speak with him about a truck and was invited into Mosley’s office. As the conversation progressed, Mosley seemingly grew suspicious of Graves. Mosley pointed to a cracked window, told Graves that someone had tried to break into his house, and that that individual was now “in the cemetery.” Graves grew “uneasy” and “uncomfortable” and rose to leave, having changed his mind about carrying out the plan. As he walked towards the door, Graves “mentioned something about [defendant],” at which point Mosley “jumped up and grabbed a crowbar or a lug wrench” from the side of his desk and swung it at Graves. Graves managed to dodge the object, grab Mosley, and the two began to wrestle. Graves gained control of the object and used it to strike Mosley in the head. Graves then choked Mosley until he appeared to be dead. Graves took a “few hundred dollars” from Mosley’s wallet and searched the house for weapons, but came up empty-handed. That night, Graves received another call from defendant, whom he told that he had “sold the car.”2
As a result of Mosley’s death, the charges against defendant were dropped in December 1997, and he was released from jail. He went to Graves’s house, thanked him, and told him that he would get the money to pay him soon, but he never actually paid Graves. Defendant also cautioned Graves not to tell anyone about what had happened.
Although police suspected that defendant was involved in Mosley’s death, they were unable, initially, to connect him to the murder. The only forensic evidence that the police collected was a fingerprint that did not produce any matches when entered into the Automated Fingerprint Identification System.
However, a few months later, an undercover sting operation led to Puglia’s arrest for distribution of marijuana.3 The officers who interviewed Puglia believed that he would be able to help them connect defendant to Mosley’s death. Puglia agreed to wear a “wire” to record his conversations with defendant4 and a consensual intercept authorization was obtained from the prosecutor’s office. Detective Danielle Lorusso, acting undercover as Puglia’s girlfriend, drove Puglia and defendant around. On February 8, 1998, when Puglia spoke with defendant about having someone who had set him up killed, defendant cryptically referenced his situation with Mosley a few times, including the following recorded exchange:
[Puglia]: That pussy was talking s**t last night man.
[Defendant]: Yo, I mean it won’t even cost you that much to get him (indiscernible).
[Puglia]: To get him f**ked up.
[Defendant]: Oh just, I mean I don’t think you gonna, it’s really not worth killing them, but I mean it, with me it was either, it was a life or death situation, it was either my life all that time behind bars ...
[Puglia]: What’d they offer you[?]
[Defendant]: Or his life. Twenty years man.
[Puglia]: Oh twenty years?
[Defendant]: Yeah.
[Puglia]: Not twenty stip?
[Defendant]: No ten stip. Come on man what the, what the f**k, you know, what, (indiscernible) gonna be and my daughter would have been nineteen years old when I got out. F**k that.
[Puglia]: God damn.
[Defendant]: Ain’t no f**king way in hell, f**k him, he, he got exactly what he deserves.
The following week, as Detective Lorusso was driving Puglia and defendant, she passed by Mosley’s house and defendant gave Puglia a “thumbs up sign.” A few days later she again drove them past the house and this time defendant “performed a digging motion like he was shoveling” and again gave a “thumbs up sign.”
A warrant was issued for defendant’s arrest on charges of conspiracy to commit assault.5 He was arrested on February 20, 1998 and informed of his Miranda6 rights, which he waived. Eventually, defendant gave a videotaped statement in which he discussed Mosley’s murder, but denied any involvement. Defendant stated that shortly after he was released from jail a “friend” whom he met in jail stopped by his mother’s house. The friend, who defendant claimed knew Mosley from prior drug transactions, told defendant that he had gone to Mosley’s house and had robbed and killed Mosley. The friend said that he had choked Mosley and then searched the house for money and jewelry, taking over $1,000. The friend thought that he was doing defendant a favor because of the attempted murder charges that defendant was facing. Defendant told his friend that he made “a big mistake” and “endangered” both of them by killing Mosley, but assured his friend that he would keep quiet.
When defendant was asked who his “friend” was, he replied that his friend’s nickname was “Zboo” and that his real name was Larry Brooks. It was soon discovered that defendant was mistaken and defendant confirmed that the friend’s name was actually Larry Graves. Defendant stated that he did not know where Graves lived, but that he had Graves’s phone number and pager number at his mother’s house. Defendant told the officers that he was willing to wear a wire and to talk to Graves in an effort to confirm his version of events. A consensual intercept authorization was obtained that night and defendant was driven to his mother’s house so that he could get Graves’s phone and pager numbers. Defendant was allowed to enter the house alone. He did not come out. Police searched the house to no avail; they discovered his body wire discarded in the backyard.
On February 28, 1998, an expert compared the fingerprint found at the scene of Mosley’s murder to Graves’s fingerprints and confirmed that it was a match for Graves’s right thumb. Despite the match, Graves was not arrested until seven years later, on March 3, 2005. Police interviewed him twice; both were taped. During the first interview Graves denied killing Mosley. However, when confronted with the fact that his fingerprint was found at the murder scene and shown the videotaped statement that defendant had given implicating him in Mosley’s murder, Graves admitted that he had killed Mosley and informed the police about defendant’s involvement. Graves stated that he had gone to Mosley’s house to make Mosley drop the charges against defendant and that he was not planning on killing Mosley. Graves eventually pled guilty to aggravated manslaughter in exchange for the recommendation of a sentence between twenty-five and thirty years of imprisonment, with an eighty-five percent period of parole ineligibility. As a condition of his plea, Graves had to testify against defendant, and his sentencing hearing was still pending at the time of defendant’s trial.
On March 9, 2005, police learned that defendant had been arrested in Vineland on outstanding warrants. Defendant was interviewed and denied knowing Graves, claiming that he did not remember providing a taped statement to police in 1998 implicating Graves in Mosley’s murder.
B.
A Gloucester County grand jury indicted defendant on charges that he was an accomplice to purposeful murder, N.J.S.A. 2C:11-3(a)(1) and 2C:2-6, and to felony murder, N.J.S.A. 2C:11-3(a)(3) and 2C:2-6. A pretrial Rule 104 hearing was held on January 23, 24, and 25, 2007, in which defendant challenged the admissibility of: (1) his videotaped statement to police; (2) proposed testimony by Graves and Puglia of their discussions with defendant about Mosley while each was in jail; and (3) the surveillance audio tapes recorded when Puglia was wearing a wire. The motion court determined that: (1) defendant knowingly and intelligently waived his Miranda rights and that his videotaped statement was therefore admissible; (2) defendant’s discussions with Graves and Puglia about having Mosley killed were admissible; and (3) some portions of the surveillance tapes were admissible.
At trial, defendant did not testify or call any witnesses on his behalf. His trial strategy, as he argued on appeal, was that he
had merely asked Graves to try to persuade Mosley to drop the charges against him; that Graves had intended to do nothing more, but had killed Mosley in self-defense when Mosley had attacked him with a tire iron; that any of defendant’s statements to Puglia that suggested otherwise represented mere “talk,” and were not credible; and that Graves had falsely implicated defendant in order to get the benefit of a favorable plea bargain.
The jury convicted defendant of being an accomplice to purposeful murder and an accomplice to felony murder. At sentencing, the court merged defendant’s felony murder conviction into his conviction for purposeful murder and granted the State’s motion to sentence defendant to an extended term as a persistent offender under N.J.S.A. 2C:44-3(a).7 The court sentenced him to forty-five years in prison with a thirty-five year period of parole ineligibility.
On appeal, defendant raised three arguments: (1) that, in general, all evidence relating to the fact that he was incarcerated on charges of the attempted murder of Mosley when Mosley was killed was improperly admitted; (2) that the jury charge should have included accomplice to aggravated manslaughter, a lesser-included offense of murder;8 and (3) that his motion for an acquittal on the felony murder charges was improperly denied because there was no rational basis for finding him guilty of felony murder. The Appellate Division rejected defendant’s arguments, and affirmed his conviction and sentence.
C.
Because the limited grant of certification in this appeal focuses on the evidential rulings, the details of the Rule 104 hearing require elucidation, as do the trial court’s and the Appellate Division’s analytic approaches to the disputed evidence.
At the Rule 104 hearing, defense counsel argued that allowing Graves and Puglia to testify about their conversations would unduly prejudice defendant because it would require him to defend not only the current charges concerning the murder of Mosley, but also the earlier charge of attempted murder of Mosley because that was the reason that defendant was in jail and ostensibly had Mosley killed. Counsel also raised the applicability of Rule 404(b), arguing that it should require exclusion of the evidence.
The prosecutor argued in response as follows:
The other issues with 404-B before the Court were the discussions, which Mr. Puglia begrudgingly testified to from the stand, that he had with Mr. Rose in jail about having the guy not show up either by paying him off by or having him whacked.
The prior Indictment that was marked, I would submit, goes to motive.
. . . .
The other 404-B -- I don’t even know if it’s 404-B but it’s just a -- it’s just planning. There’s Mr. Graves’ testimony. There are jail records at some point, which would be proffered, to corroborate housing situations with he and -- with Mr. Graves and Mr. Rose, as well as Mr. Rose and Mr. Puglia.
. . . .
Mr. Puglia was brought in to give context to that and to discuss background, as far as he and Mr. Rose. How he knew him, et cetera. But also to discuss prior discussions that he had with Mr. Rose, although they were I guess the summer before ‘96.
So I would submit under either a motive analysis, planning and intent analysis and as I said in my case, the res [gestae] analysis, which I’m not real big on -- I guess that’s Latin. I don’t know. But it basically talks about all these things come from the same cloth.
That you can’t just take a piece out because it’s part of the mosaic of the events that took place here and that’s what this is. I mean, this whole case is going to be a mosaic of people coming in and they’re saying their bits and pieces as to what they know about this. And what this hearing this week was, was a couple of the pieces of the mosaic.
And to say that they aren’t relevant or aren’t pertinent under Cofield,9 I think is incorrect, as I stated in my Brief for the reasons I stated in my Brief. They are relevant. They are pertinent. They do explain issues such as motive. Whether it’s believed or not is a jury issue.
They do explain motives like intent. They do explain issues of planning. They do explain issues of how these witnesses know each other. And under Cofield, I think it satisfies all the prongs of Cofield, as was previously set forth in my Brief, which I’m not going to sit here and reread that to the Court.
But for 404-B, those were the items that I sought to admit and those were the reasons that they were sought to be admitted. And I think that they’re properly presented to the Court and they’re properly relevant and properly admissible.
The trial court placed an oral decision on the record, reasoning that the proposed testimony of
Graves, concerning the killing of Mr. Mosley and the reason therefore, does directly relate to the commission of the crime charged in the Indictment.
And I don’t find 404 applies to that. That’s -- res [gestae], as Mr. Gangloff said, is a term that is used. I know when I was in law school, I thought we were told that res [gestae], you shouldn’t use that with regard to evidence. You should find a real rule that applies and that was kind of general language.
But it seems back in the case law and basically talks about, as I read it, as being part of the crime itself. It’s so woven into that that it needs to be part of the evidence. That the 404-B analysis doesn’t really apply. And I find that with regard to Mr. Graves’ testimony regarding what happened in the jail.
A different question arises, a slightly different question with regard to Mr. Puglia’s testimony of the discussions in jail by the Defendant. Mr. Graves alleges he was solicited. Mr. Puglia wasn’t solicited. There were merely conversations in the jail regarding this.
And I do find that a 404-B type of analysis would come into play with regard to that in a sense. Although it is evidence frankly not of another crime, which is one of the Cofield factors. Is the evidence of the other crime must be admissible as relevant to a material issue.
There really is evidence of this crime, evidence to show motive and intent and plan and so forth. So there are items under 404-B that clearly relate to this evidence, although it isn’t a traditional 404-B type of evidence because it isn’t evidence of a different crime. It’s evidence of this crime.
So the -- as I said, the 404-B analysis -- type analysis applies but I don’t find it’s really 404-B material in any event. The question would be whether the evidence under 403, its probative value would be substantially outweighed by the other factors. And I find that it would not . . .
At trial, defendant stipulated to the admission of a copy of his prior indictment for attempted murder. Puglia and Graves testified in accordance with the court’s ruling from the Rule 104 hearing. Defense counsel did not object to the testimony by either Puglia or Graves. Nonetheless, the trial court repeatedly provided the jury with limiting instructions about its use of the evidence. When the jury first learned that defendant was incarcerated on charges of the attempted murder of Mosley when Mosley was killed, the trial court instructed the jury, in part, that
you may not use this evidence to decide that the Defendant has a tendency to commit crimes or that he is a bad person. That is, you may not decide that just because the Defendant . . . had charges pending against him, or was incarcerated in the County Jail, that he must be guilty of the present crime.
Admitted –- I have admitted the evidence only to help you decide the specific question of his knowledge of what happened or his motive and/or intent to have Mr. Mosley killed and/or his formulation of a plan to have him killed.
You may not consider it for any other purpose and may not find the Defendant guilty simply because the State has offered evidence that he has committed other crimes, wrongs or acts.
That charge was given again following Puglia’s testimony and as part of the final jury charge. The trial court also provided a limiting instruction after Graves testified, informing the jurors that they
may not use this evidence to decide that the Defendant has a tendency to commit crimes or that he is a bad person. That is, you may not decide that just because he was in jail, he must be guilty of the present crime.
I have admitted the evidence only to provide you with the location of the discussions, to assist you in your understanding of the context and background of them. You may not consider it for any other purpose and may not find the Defendant guilty now simply because the State has offered evidence that he was incarcerated in the County Jail at any time.
That instruction also was repeated during the final jury charge.
In his appeal to the Appellate Division and to this Court, defendant has characterized his arguments at the Rule 104 hearing as constituting “generalized objections” to the introduction of any evidence during trial that related to the fact that he was incarcerated on an indictment charging him with the attempted murder of Mosley when Mosley was killed. The Appellate Division rejected that proposition, stating that “[c]ounsel was obligated to announce an objection when any offending material was offered during the trial.” Because defendant did not object to either Puglia’s or Graves’s testimony at trial, and stipulated to the introduction of a copy of his indictment, the panel concluded that the plain error standard applied. See R. 2:10-2. In rejecting defendant’s argument about the evidence’s inadmissibility, the panel reasoned that defendant’s failure to object deprived the trial court of the “opportunity to determine: whether the vehicle used to convey those facts was proper; whether the evidence should have been precluded by application of N.J.R.E. 403; or whether, despite its admissibility, the prejudicial impact of evidence of the prior indictment could have been lessened by an appropriate jury instruction.”
In pertinent part, the panel explained that
[d]efendant has spent a good deal of energy in arguing against the application of N.J.R.E. 404(b) and the so-called res gestae doctrine as they may relate to evidence of the prior indictment. But, as we have observed, the evidence specifically noticed in the appeal brief was properly admitted without reference to either N.J.R.E. 404(b) or res gestae.
Neither the Pugli[a] testimony nor the stipulated prior indictment was offered to show that defendant had engaged in prior bad acts, as the judge properly held in his oral decision at the conclusion of the N.J.R.E. 104 hearing. This evidence, insofar as it revealed the existence of the prior indictment, was only offered to prove what was relevant -- that defendant had been charged and that Mosley was a material witness against him, two facts that suggested defendant’s motive in participating in Mosley’s murder.
And, although the judge expressly relied on the res gestae doctrine to permit evidence of the prior indictment, we do not find that questionable rationale to have any bearing upon the issues presented on appeal. That is, we discern from the trial judge’s ruling that he viewed evidence relating to the prior indictment as tending to show defendant’s motive; such a ruling is fully supported by N.J.R.E. 401 and does not require reliance upon the res gestae doctrine, which may or may not lurk among the interstices of our rules of evidence.
Defendant petitioned for certification to this Court, reasserting the same issues raised before the Appellate Division; however, our grant of certification was “limited to the issue of whether evidence that defendant was previously indicted and incarcerated on charges that he attempted to murder the victim was admissible at defendant’s trial pursuant to N.J.R.E. 404(b), res gestae, or some other legal doctrine.” Rose, supra, 203 N.J. at 96. Accordingly, we turn to address, the admissibility of the disputed evidence.
II.
A.
A trial court’s ruling on the admissibility of evidence is reviewed on appeal for abuse of discretion. See Brenman v. Demello, 191 N.J. 18, 31 (2007). However, if the party appealing did not make its objection to admission known to the trial court, the reviewing court will review for plain error, only reversing if the error is “clearly capable of producing an unjust result.” R. 2:10-2.
When specifically reviewing the sensitive admissibility rulings made pursuant to the weighing process demanded by Rule 404(b), which deals with evidence of other crimes or bad acts, we have further said that “[o]nly where there is a clear error of judgment should the trial court’s conclusion with respect to that balancing test be disturbed.” State v. Barden, 195 N.J. 375, 391 (2008) (citation and internal quotation marks omitted). That deferential approach does not fit in cases where the trial court did not apply Rule 404(b) properly to the evidence at trial; in those circumstances, to assess whether admission of the evidence was appropriate, an appellate court may engage in its own “plenary review” to determine its admissibility. Ibid. (citation omitted); see State v. Lykes, 192 N.J. 519, 534 (2007) (citing State v. Reddish, 181 N.J. 553, 609 (2004) for proposition that appellate review is de novo when Cofield analysis is required but not performed).
Here, with respect to the admission of defendant’s indictment, defendant interposed no objection. He stipulated to its admission at trial. Nor did he object to Puglia’s and Graves’s testimony at trial. The Appellate Division did not accept defendant’s “generalized objection” argument about that evidence. That said, under the standard for reviewing evidence of other crimes or acts, an appellate body is permitted to perform its own plenary review of the evidence to determine whether the evidence was properly admitted. Barden, supra, 195 N.J. at 391. Here, a straightforward application of Rule 404(b) leads to the conclusion that defendant suffered no error due to the admission of the disputed evidence about his former indictment (and incarceration pending trial) on charges that he had attempted the murder of the victim in his present trial.
B.
Rule 404(b) provides that
evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.
[N.J.R.E. 404(b)]
“The underlying danger of admitting other-crime evidence is that the jury may convict the defendant because he is a bad person in general.” State v. Cofield, 127 N.J. 328, 336 (1992) (citation and internal quotation marks omitted). Thus, “the prosecution may not introduce evidence of other criminal acts of the accused unless the evidence is introduced for some purpose other than 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.” Id. at 335-36 (quoting 1 McCormick on Evidence § 190, at 798 (Strong ed., 4th ed. 1992) (footnotes omitted)).
Rule 404(b) “seeks to strike a balance between the prejudice to a defendant that is inherent in other-crimes evidence and the recognition that the evidence may be highly relevant to prove a defendant’s guilt of the crime charged.” Barden, supra, 195 N.J. at 388. Thus, evidence of uncharged misconduct would be inadmissible if offered solely to prove the defendant’s criminal disposition, but if that misconduct evidence is material to a non-propensity purpose such as those listed in Rule 404(b), it may be admissible if its probative value is not outweighed by the risk of prejudice. See ibid.
The seminal case in New Jersey on the proper application of Rule 404(b) to evidence of uncharged misconduct is State v. Cofield.10 In Cofield, supra, the Court articulated the following four-part test to determine if evidence of uncharged misconduct is admissible at trial:
1. The evidence of the other crime must be admissible as relevant to a material issue;
2. It must be similar in kind and reasonably close in time to the offense charged;
3. The evidence of the other crime must be clear and convincing; and
4. The probative value of the evidence must not be outweighed by its apparent prejudice.
[127 N.J. at 338 (quoting Abraham P. Ordover, Balancing The Presumptions Of Guilt And Innocence: Rules 404(b), 608(b), And 609(a), 38 Emory L.J. 135, 160 (1989) (footnote omitted)).]
To satisfy the first prong of the Cofield test -- the relevancy prong -- the evidence must have “a tendency in reason to prove or disprove any fact of consequence to the determination of the action.” See N.J.R.E. 401 (defining “relevant evidence”). “The standard for the requisite connection is generous: if the evidence makes a desired inference more probable than it would be if the evidence were not admitted, then the required logical connection has been satisfied.” State v. Williams, 190 N.J. 114, 123 (2007). The evidence must also bear on a material issue in dispute, such as motive, intent, or an element of the charged offense, and so “the Court should consider whether the matter was projected by the defense as arguable before trial, raised by the defense at trial, or was one that the defense refused to concede.” State v. P.S., 202 N.J. 232, 256 (2010). The second prong of the Cofield test is understood as “limited to cases that replicate the circumstances in Cofield.” Williams, supra, 190 N.J. at 131. Temporality and similarity of conduct is not always applicable, and thus not required in all cases. See P.S., supra, 202 N.J. at 255 n.4. Moving on to the third prong, the prosecution must establish that the act of uncharged misconduct which it seeks to introduce into evidence actually happened by “clear and convincing” evidence. Cofield, supra, 127 N.J. at 338.
The fourth prong of the Cofield test is typically considered the most difficult to overcome. Barden, supra, 195 N.J. at 389. “Because of the damaging nature of such evidence, the trial court must engage in a careful and pragmatic evaluation of the evidence to determine whether the probative worth of the evidence is outweighed by its potential for undue prejudice.” Ibid. (citation and internal quotation marks omitted). That standard is more exacting than Rule 403, which provides that relevant evidence is admissible unless its probative value is substantially outweighed by the risk of undue prejudice. Reddish, supra, 181 N.J. at 608. And, “[i]f other less prejudicial evidence may be presented to establish the same issue, the balance in the weighing process will tip in favor of exclusion.” Barden, supra, 195 N.J. at 392 (citation omitted); see P.S., supra, 202 N.J. at 256. Additionally, in order to minimize “the inherent prejudice in the admission of other-crimes evidence, our courts require the trial court to sanitize the evidence when appropriate.” Barden, supra, 195 N.J. at 390 (citation omitted). Finally, limiting instructions must be provided to inform the jury of the purposes for which it may, and for which it may not, consider the evidence of defendant’s uncharged misconduct, both when the evidence is first presented and again as part of the final jury charge. Ibid. A suitable limiting instruction “explain[s] precisely the permitted and prohibited purposes of the evidence, with sufficient reference to the factual context of the case to enable the jury to comprehend and appreciate the fine distinction to which it is required to adhere.” Ibid. (citation and internal quotation marks omitted).
With those principles as our guide, we turn to review the disputed evidence in defendant’s trial.
C.
Defendant reiterates the objections he raised at the Rule 104 hearing to challenge the introduction of any evidence during the trial relating to his incarceration on an indictment that charged him with the attempted murder of Mosley when Mosley was killed. His focus is on three pieces of evidence: (1) Puglia’s testimony that defendant spoke with him about having Mosley killed while the two men were in jail; (2) Graves’s testimony that defendant solicited him and provided him instructions on killing Mosley while they were incarcerated together; and (3) defendant’s indictment for the attempted murder of Mosley. The trial court did not consider Rule 404(b) applicable to that evidence. Instead, the court admitted the indictment through a stipulation, allowed Graves’s testimony about his solicitation to be admitted as part of the res gestae of the charged crime, and declared Puglia’s testimony about his conversation with defendant, in which defendant’s expressed his plans for Mosley, to be evidence of this crime and not “other” crime evidence, and therefore exempt from Rule 404(b)’s requirements for admission. Thus, we can and will conduct our own review of the evidence’s admissibility under Rule 404(b).11 See Barden, supra, 195 N.J. at 391 (citation omitted). Under that analysis, one begins -- as is always the case, whether under Rules 401 and 403 or under Rule 404(b) -- by addressing the relevance of the evidence.
Cofield’s initial prong requires an examination of the “other” crime or act evidence for relevance. Here the fact that defendant was indicted for the attempted murder of Mosley was relevant to material issues in dispute at trial, namely defendant’s motive for having Mosley killed, his intent that Graves kill Mosley, and the plan that he formulated with Graves on how to kill Mosley. The fact that defendant was in jail because he had attempted to kill Mosley was not introduced into evidence by the State to show that defendant was a criminal capable of killing someone and thus should be convicted on that basis. Rather, the State relied on the fact that defendant was in jail for the attempted murder of Mosley, when Mosley was killed, to highlight the fact that defendant had a motive, the requisite intent, and a plan to have Mosley killed -- all proper non-propensity purposes under Rule 404(b).
Although the trial court did not explicitly consider all of the challenged evidence under Rule 404(b), the court did recognize and state on the record that the evidence in issue was relevant to defendant’s “motive and intent and plan.” Indeed, as part of defendant’s strategy, he argued at trial that he
had merely asked Graves to try to persuade Mosley to drop the charges against him; that Graves had intended to do nothing more, but had killed Mosley in self-defense when Mosley had attacked him with a tire iron; that any of defendant’s statements to Puglia that suggested otherwise represented mere “talk,” and were not credible; and that Graves had falsely implicated defendant in order to get the benefit of a favorable plea bargain.
Thus, defendant’s intent that Graves actually kill Mosley and not just “try to persuade [him] to drop the charges” was a disputed material issue. Also in dispute was whether defendant had formulated a plan with Graves about how to kill Mosley, which contradicted defendant’s contention that “Graves had intended to do nothing more [than persuade Mosley to drop the charges], but [then] had killed Mosley in self-defense.” Likewise, although defendant did not expressly place the issue in dispute, his motive was material, and vitally so, because it was the string that tied the State’s entire case together. Without knowing that defendant was in prison on charges that he attempted to murder Mosley at the time that Mosley was killed, the jury would have been left without a crucial piece of evidence: why defendant wanted Mosley killed. Thus, the first prong of the Cofield test plainly was satisfied in this case.
The second prong of the Cofield test, addressing the similarity and temporality of the evidence, is not found in Rule 404(b), and is not universally required. See, P.S. supra, 202 N.J. at 255 n.4 (citing Williams, supra, 190 N.J. at 131). It is inapplicable here. Turning to the next requirement, prong three of the Cofield analysis requires that the evidence of uncharged acts of misconduct be proven by clear and convincing evidence. See State v. Hernandez, 170 N.J. 106, 119-21, 127 (2001). Although here there was no hearing to hold the prosecutor to that burden of proof, the surrounding circumstances adequately support that the third prong of Cofield was satisfied. Defendant h