Opinion
DOCKET NO. A-6048-12T1
08-12-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. TORMU E. PRALL, a/k/a JUDDS EMMANUEL, BUTLER JAMES and PRALL MANUEL, Defendant-Appellant.
Stephen W. Kirsch, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Kirsch, of counsel and on the brief). Jennifer E. Kmieciak, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Ms. Kmieciak, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino, Accurso and O'Connor. On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 08-07-0661. Stephen W. Kirsch, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Kirsch, of counsel and on the brief). Jennifer E. Kmieciak, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Ms. Kmieciak, of counsel and on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
Defendant Tormu Prall was convicted of murder, attempted murder and aggravated arson after a jury found he set fire to the bedroom where his brother and his brother's girlfriend were sleeping. The judge sentenced him to an aggregate term of life in prison plus twenty years with an eighty and three quarters year period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant appeals his conviction, raising the following issues for our consideration:
POINT I
THE TRIAL JUDGE SHOULD HAVE GRANTED THE DEFENDANT'S MOTION TO SUPPRESS THE PHOTOS THAT WERE TAKEN OF HIS HANDS, AND ANY TESTIMONY BASED UPON THOSE PHOTOS, AS THE FRUITS OF AN INTERROGATION PROCEDURE THAT THE STATE CONCEDED WAS UNCONSTITUTIONAL IN LIGHT OF A VIOLATION OF STATE V. SANCHEZ.
POINT II
THE TRIAL JUDGE IMPROPERLY REVERSED THE TRIAL COURT'S OWN RULING AND ADMITTED DAMAGING, UNDULY PREJUDICIAL "OTHER CRIMES" EVIDENCE THAT DEFENDANT HAD PREVIOUSLY THREATENED TO BURN DOWN A WITNESS' HOME; HE ALSO NEGLECTED TO GIVE ANY LIMITING INSTRUCTION ON THAT EVIDENCE, IN DIRECT VIOLATION OF ESTABLISHED CASE LAW. (Partially Raised Below).
POINT III
THE MANNER IN WHICH THE COURT HANDLED THE CLEARLY IMPROPER TESTIMONY THAT THE HOMICIDE VICTIM THEORIZED OUT LOUD, OVER AND OVER, THAT IT MUST HAVE BEEN DEFENDANT WHO WAS RESPONSIBLE FOR THE SETTING OF THE FIRE WAS TOO LITTLE TOO LATE, AND THEREBY UNDULY
PREJUDICED THE JURY'S VIEW OF THE CASE. (Partially Raised Below).
In his pro se supplemental brief, defendant raises the following additional points.
POINT I
THE TRIAL JUDGE'S BIAS VITIATES THE VERDICT.
POINT II
DEFENDANT WAS DENIED THE PRESUMPTION OF INNOCENCE.
POINT III
DEFENDANT'S SPEEDY TRIAL RIGHTS WERE VIOLATED.
POINT IV
THERE WAS BAD FAITH LOSS AND DESTRUCTION OF EXCULPATORY EVIDENCE.
POINT V
THE TRIAL JUDGE ARBITRARILY RESTRICTED DEFENSE COUNSEL'S CROSS[-]EXAMINATION.
POINT VI
THE TRIAL JUDGE ENGAGED IN EX PARTE COMMUNICATION.
POINT VII
PREDISPOSITION OF GUILT INFLUENCED THE TRIAL JUDGE'S DECISIONS.
POINT VIII
THE CONVICTION WAS TAINTED.
POINT IX
TESTIMONY ABOUT THE TEE SHIRT WAS INADMISSIBLE AND VIOLATIVE OF THE COURT'S PRIOR ORDER.
POINT X
RULES OF EVIDENCE BARRED ADMISSION OF THE PHOTOGRAPHS.
POINT XI
THE TRIAL JUDGE PREVENTED DEFENDANT FROM PRESENTING EVIDENCE.
POINT XII
THE STATE FAILED TO ESTABLISH THE CONFESSION WAS VOLUNTARY.
POINT XIII
DEFENDANT WAS DENIED THE RIGHT TO TESTIFY.
POINT XIV
TESTIMONY OFFERED LACKED PARTICULARIZED GUARANTEES OF TRUSTWORTHINESS.
POINT XV
ADMISSION OF OTHER CRIMES EVIDENCE DENIED DEFENDANT A FAIR TRIAL.
POINT XVI
ADMISSION OF TESTIMONIAL HEARSAY VIOLATED DEFENDANT'S RIGHT TO CONFRONT WITNESSES AGAINST HIM.
POINT XVII
MISCONDUCT BY THE PROSECUTORS WAS REPREHENSIBLE.
POINT XVIII
THIS CASE IS FRAUGHT WITH JUDICIAL IMPROPRIETIES.
POINT XIX
DEFENDANT IS ENTITLED TO JUDGMENT OF ACQUITTAL.
POINT XX
THE PROSECUTION SUPPRESSED AND CONCOCTED EVIDENCE.
POINT XXI
HARMLESS ERROR VIOLATES PRINCIPLES OF CHECKS AND BALANCES.
POINT XXII
DEFENDANT WAS SUBJECTED TO CRUEL AND UNUSUAL PUNISHMENT.
POINT XXIII
DEFENSE COUNSEL WAS INEFFECTIVE.
POINT XXIV
DEFENDANT WAS A VICTIM OF PROSECUTORIAL AND JUDICIAL VINDICTIVENESS.
POINT XXV
THE CONVICTION AND SENTENCE VIOLATE SEPARATION OF POWERS.
POINT XXVI
THERE WAS EXTERNAL CONSTRAINTS ON TRIAL COUNSEL'S PERFORMANCE.
POINT XXVII
THERE WAS A CUMULATIVE EFFECT OF TRIAL IMPROPRIETIES.
POINT XXVIII
CASE LAW PROHIBITS FUTURE PROSECUTIONS.
POINT XXIX
DEFENDANT PRESERVED ALL THE ISSUES.
POINT XXX
THIS COURT IS OBLIGATED TO REPORT THE TRIAL JUDGE AND THE PROSECUTOR.
We reject defendant's argument that the pictures of his fire-scarred hands should not have been admitted, as well as the arguments made in his pro se supplemental brief, including those echoing the unsuccessful points raised by his counsel. We are, however, constrained to reverse his conviction because of the error in admitting highly prejudicial N.J.R.E. 404(b) evidence, without a limiting instruction, which the prosecutor used improperly in summation to make an unadorned propensity argument.
We also agree with defendant that the judge did not abuse his discretion in directing the jury to disregard the testimony of the victim's girlfriend, repeated twenty-two times, that defendant, when he awoke on fire, "started hollering and screaming saying oh, my God. My brother, my brother." Unfortunately, that instruction came twelve days after the testimony. Our concern about the efficacy of that belated instruction reinforces our conclusion that reversal is warranted, notwithstanding the extensive, properly-admitted evidence in the record that would otherwise support the jury's verdict.
This was a lengthy trial in which there was no direct evidence linking defendant to the crimes. There was no dispute that defendant's brother died four days after being awakened by the shouts of his girlfriend in the early morning hours of September 25, 2007, telling him he was on fire. He suffered thermal burns over ninety-seven percent of his body. The medical examiner testified defendant's brother "basically was broiled or baked to death."
Defendant's brother's girlfriend, the surviving victim, suffered burns over thirty-nine percent of her body and endured several surgeries over many months to regraft the skin on her legs. Investigators testified the cause of the fire was arson. They identified two points of origin in the second floor bedroom where the victims slept. They testified an accelerant, likely lighter fluid, was used to start and spread the fire.
The prosecution's theory was that defendant was angry with his brother for telling defendant he could not stay at the house their mother owned in Trenton, the one destroyed in the fire, without contributing to the expenses. The State maintained defendant, incensed by those assertions, threatened to kill his brother in the days leading up to his death and made good on that threat by starting the fire from which he perished.
Defendant, who did not testify, did not dispute the arson. He simply claimed he had nothing to do with it. He attempted to cast suspicion on the decedent's long-time companion, the mother of his two children. Defendant's theory was that she was angry with the decedent for seeing another woman, and that she set the fire knowing the couple was sleeping together in the house.
Although a witness put defendant at the scene of the fire, police could not locate him for questioning thereafter. They did not speak to him until after he was arrested just over a year later in Connecticut under an assumed name on an unrelated charge. Upon his return to New Jersey, detectives advising him of the charges lodged against him in his absence, noticed severe scarring on his hands and had them photographed.
In his subsequent voluntary statement to the detectives, defendant admitted his hands were burned in the fire. He claimed his brother's long-time companion was responsible for the fire and the burns to his hands. He told the detectives he left the area immediately after the fire and obtained treatment for his injuries, including skin grafts, in a New York hospital under an assumed name. The prosecution never offered that statement because it was obtained in violation of State v. Sanchez, 129 N.J. 261, 277 (1992) (holding "[a]s a general rule, after an indictment and before arraignment, prosecutors or their representatives should not initiate a conversation with defendants without the consent of defense counsel").
Defendant's motion to suppress the photographs taken of his hands as fruit of the unconstitutional interrogation was denied. The trial judge relied on the testimony of the detective that even had he been aware that Sanchez barred the interrogation of defendant without consent of defense counsel after indictment, which he was not, the detective still would have had defendant transported from the workhouse to the Trenton police station in order to advise defendant of the charges against him and to sign the warrant form. Because the detective testified he noticed the scarring immediately upon uncuffing defendant's hands to allow him to sign the form, the judge found no constitutional violation.
The prosecution used those photographs at trial to identify and date the injuries to defendant's hands. A burn expert testified from the photographs that the scarring was the result of a deep burn, requiring a skin graft, consistent with someone lighting a flammable liquid he had gotten on his hands. Because the photos revealed a well-healed skin graft, the expert opined the burn was at least six months old.
Pursuant to another pre-trial ruling made by another judge, which defendant does not contest, four witnesses, defendant's girlfriend, defendant's brother's girlfriend, defendant's brother's long-time companion and a friend of hers who knew both men, were allowed to testify at trial to the threats defendant made to his brother in the days before the fire.
The prosecution, however, was barred from telling the jury about defendant's threat to his girlfriend, made before the fire that killed his brother, to burn down her two houses after she once broke up with him. Weighing the Cofield factors, the court could not find defendant's threat to his girlfriend in any way relevant to the issues in dispute, although it found the threat certainly similar in kind to the charged offense and that the girlfriend's testimony was credible.
State v. Cofield, 127 N.J. 328 (1992). The Cofield test requires that:
1. The evidence of the other crime must be admissible as relevant to a material issue;The second Cofield prong is not universally applied, but is instead limited to cases that replicate the circumstances of that case. See State v. Williams, 190 N.J. 114, 131-34 (2007). It is not implicated here.
2. It must be similar in kind and reasonably close in time to the offense charged;
3. The evidence of the other crime must be clear and convincing; and
4. The probative value of the evidence must not be outweighed by its apparent prejudice.
[Id. at 338.]
Most important, the court found the potential for prejudice greatly outweighed the threat's probative value. It concluded admitting the threat would risk "allowing jurors to believe that because other people feared the defendant's threats, the defendant is a bad person who carried through on these particular threats. This is exactly the type of evidence that N.J.R.E. 404(b) seeks to exclude." The court also found defendant's threats to his brother, which it deemed could be admitted at trial, could similarly be offered to prove motive, intent and absence of accident. For the same reasons, the court excluded evidence of a fire defendant allegedly set in Massachusetts, after the fire that killed his brother, at a girlfriend's house following their break up.
At trial, the prosecution presented the testimony of the threats defendant made to his brother in the days before the fire. Defendant's brother's girlfriend testified she overheard an argument between the brothers at the house over expenses three days before the fire. She claimed defendant's brother told defendant he could not stay in the house without paying his share of the upkeep. According to her, defendant responded by telling his brother he was "food," street slang for "dead." She said defendant left the house repeatedly shouting, "You're going to die!"
Defendant's girlfriend claimed she drove defendant back to the house later that evening at his request. Although she waited outside, she could hear the brothers arguing from where she sat in her car. When defendant returned, he had a gas can in his hand. She claimed he told her, "I'm going to set the motherfucker on fire," and asked her to drive him to the gas station. She refused and the two returned to her home in Trenton, where defendant continued to rant about his brother. She claimed he said, "[']Cain killed Abel,['] and he's going to kill his brother and he was talking, you know, crazy talk . . . ." The next morning, Sunday, when defendant continued to go on about his brother, she asked him to promise her he would not "do anything" to him, to which he replied, "I can't promise you that."
On Monday morning, two other witnesses overheard the brothers arguing loudly outside a bank in Trenton. The victim's girlfriend claimed defendant was standing in the door of the bank loudly calling his brother names and saying he was "going to die tonight." She claimed defendant told his brother, "If [defendant] can't live in that house[,] ain't nobody going to live in that house and that he's food." She testified defendant "was looking real crazy in his face" when he addressed his brother. Another witness, a City sanitation worker who knew both men, was stopped at a red light when he saw the brothers arguing. He claimed he heard defendant say, "Word is bond, I'm gonna get you. I'm gonna get you. Word is bond." The witness called his friend, the defendant's brother's long-time companion and the mother of his children, to tell her what he saw.
She called the decedent, and the two went to get lunch in Trenton. She testified the decedent told her he was upset about the earlier argument with his brother. Later that afternoon, the two were in the woman's car outside the house when defendant appeared "yelling and . . . screaming." She testified defendant threatened them both saying, "we food. He's going to kill us. We're going to get it." She claimed defendant continued to get more and more enraged until they drove away.
Defendant's girlfriend testified he appeared at her house midday very upset and "in a real big rage." Defendant told her about the argument he had that morning with his brother, and admitted he again threatened to kill him. She went to work in the afternoon but testified she saw defendant later that evening at her house dressed in a yellow tee shirt and blue jeans.
Defendant's brother's girlfriend testified she went over to the house at about 11:30 that Monday night, after his long-time companion and their children had left for the evening. She claimed he was alone in the house, and that he locked the door behind her. They went upstairs to the bedroom. She testified she stayed up watching television after the defendant's brother fell asleep. She claimed she woke him after hearing noises, but he did not get up to investigate. Instead, he told her "don't worry about nothing. Ain't nobody but [my brother]." Defendant still had a key to the house.
A few hours later, she awoke feeling hot. As she rolled over she saw defendant's brother was on fire from the waist up and that her legs were on fire. She testified she screamed to him, "you're on fire." When he awoke, he "just started hollering and screaming saying oh, my God. My brother, my brother. That's all he kept saying. Oh, my God. My brother, my brother."
The couple had been sleeping naked. The surviving victim testified that by the time she got downstairs, she had managed to extinguish the flames on her legs and elsewhere. Defendant's brother, however, was "on fire from head to toe." As they stood outside waiting for an ambulance as their neighbors tried to help, the surviving victim testified she watched as the skin started to peel away from defendant's brother's face as he kept "saying his brother did this." Although there was no objection, the witness repeated that testimony of the deceased's statements about his brother twenty-two times.
The man who testified to witnessing the argument between the brothers outside the bank claimed he saw defendant as he passed the fire on his way to work early Tuesday morning. He testified defendant was standing watching the fire from across the street. When he passed by the same spot twenty minutes later, he claimed defendant was still standing in the same place staring at the fire.
Police found no physical evidence linking defendant to the crime. Just before trial, however, six years after first speaking to the police about defendant, defendant's girlfriend revealed she threw away a yellow tee shirt she found in her Trenton house three days after the fire. She claimed it was the same shirt he had been wearing in the hours before the fire, only now it had dried blood and skin smeared across the front.
When asked on direct examination why she threw the shirt away, she replied that she was "scared" of defendant. When the prosecutor asked the witness why she was afraid of him, defendant objected. Noting the prosecutor had "already developed" that there "were issues between them," the judge overruled the objection, advising the prosecutor he could "explore that to some extent."
The witness had previously testified that her relationship with defendant "was up and down" because "he was a very angry person," sparking arguments between them "at least twice a week."
Obviously mindful, however, of the pre-trial ruling excluding the threats and the potential for prejudice to the defendant depending on the witness's answers, the judge directed the prosecutor to ask "[l]eading questions, if you would, please, so we don't get too far off the chart." In response, the prosecutor asked whether the witness was scared of defendant because he had threatened her. When the witness agreed, the prosecutor asked, "specifically he threatened to kill you?"
Defense counsel again objected. The judge told the prosecutor, "[t]hat's not the leading question I was looking for" and directed the jury to disregard the comment about defendant threatening to kill his girlfriend. The judge then asked the witness whether there were "issues" between her and defendant, "domestic violence or restraining orders, things like that?" When the prosecutor later again asked about discarding the shirt, the witness claimed she threw it away because she was scared, "[s]cared because they ha[dn]'t found [defendant] and [she] didn't know what to do." She also claimed she never saw any injuries or burns to defendant's hands prior to the fire.
On cross-examination, defense counsel established that the witness talked to the police shortly after the fire and let them record phone messages she received from defendant before and immediately after the fire. Counsel further got the witness to concede she again talked to the police four years later when she provided them the information about the threats she heard defendant make against his brother, yet at no time told them about finding the yellow shirt.
In the course of trying to establish that defendant and the witness reconciled after their domestic violence "issues," spending almost every night together, and that he had never hit her or carried out any threat against her, defense counsel got the witness to agree that her dismissed domestic violence complaint was the only time she had ever "reported to anyone that [she] w[as] scared of [defendant]."
The prosecutor claimed defense counsel's questions about the witness's failure to have contacted the police about the yellow shirt opened the door to testimony concerning the nature of the threats defendant allegedly made against her. Defense counsel objected on N.J.R.E. 404(b) grounds. The judge agreed with the prosecutor. The witness was thus allowed to testify on redirect that defendant had threatened to burn her two houses down, both the one she stayed in with defendant in Trenton and the one in which her children lived in Burlington, and that he said to her, "all I need is a gallon of gas to do it." She was also allowed to tell the jury that defendant had called her employer and told her supervisor "he was going to kidnap [her] and [her] school bus and then kill [her]." The jury subsequently returned a verdict against defendant on all charges.
I
We turn first to defendant's claim that the photographs taken of his hands at the time of the Sanchez violation should have been barred as the fruit of that State constitutional violation. See Wong Sun v. United States, 371 U.S. 471, 488, 83 S. Ct. 407, 417, 9 L. Ed. 2d 441, 455 (1963). Our standard of review on a motion to suppress is no different from our review of a trial court's findings in any non-jury case. See State v. Johnson, 42 N.J. 146, 161 (1964). "The aim of the review at the outset is . . . to determine whether the findings made could reasonably have been reached on sufficient credible evidence present in the record." Id. at 162.
Our Supreme Court has long counseled that "[a]n appellate court 'should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses . . . .'" State v. Elders, 192 N.J. 224, 244 (2007) (quoting Johnson, supra, 42 N.J. at 161). That deference is grounded in the understanding that our "reading of a cold record is a pale substitute for a trial judge's assessment of the credibility of a witness he has observed firsthand." State v. Nash, 212 N.J. 518, 540 (2013). Appellate review of the trial court's application of the law to the facts, of course, is plenary. State v. Hubbard, 222 N.J. 249, 263 (2015).
Applying those standards here provides no basis to reverse the trial court's admission of the photographs. Defendant's argument that the detective's reading of the charges to defendant and having him sign the warrant form at the police station "was so hopelessly intertwined with the illegal interview that it immediately preceded, and so utterly unnecessary and uncalled for when divorced from that interview, that this court should hold it has no independent legal basis," simply ignores the facts found by the trial judge.
The trial judge made specific findings after hearing the testimony of the detective that the Trenton police
don't advise the nature of charges, warrants and so forth at the workhouse. It's done in a formal fashion at the Trenton Police Department. There's nothing that puts that into question in my mind. And that's what was done here. There was no prior meeting between [the detective] and the defendant. . . . The defendant was present and shackled by handcuff on his right arm in the corner of this very small room. [The detective] testifi[ed] that he helped the defendant free his left arm from the orange jumpsuit and then he made observations of his hands at that time . . . .
The judge framed the question as whether the detective could "have been in the room appropriately, legally with the defendant at the time, was he in a position to make the observations that he made." He concluded:
I'm satisfied he absolutely was. It's a tiny room. The photographs . . . depict the . . . burn discoloration that's being described by [the detective] on the defendant's hand. . . . [The detective's] attention was caught to this and he fixated on that and was satisfied that he was going to take photographs of that notwithstanding the interview. I believe him.
The judge rejected the State's arguments as to the applicability of the independent source or inevitable discovery doctrines because the detective made his observations
before any statement was being effected or attempted from the defendant. . . .
In this case I just find it to be observations made by a trained police officer during the course of his work in an appropriate manner. He made observations. He took certain actions. Those certain actions led to the taking of photographs. Those photographs led to the submission of the matter to an expert for an opinion, and that opinion now has been reduced at least in writing from the prosecutor paraphrasing the expert himself. I don't find any violation, constitutional or otherwise, with regard to any of the matters that I've heard.
The trial judge's finding that the detective made his observations before conducting the illegal interview of defendant pursuant to regular procedure of the police department, separate and apart from that interview, could certainly have been reasonably reached based on the detective's testimony. Because we are not at liberty to reject those factual findings and they support the trial judge's conclusion that the photographs were not the product of the Sanchez violation, we do not find the trial judge erred in admitting them.
A
We turn next to consider the trial court's decision to admit defendant's threats to his girlfriend to kill her and burn down her houses. We review a trial court's evidentiary rulings only for abuse of discretion, meaning that we do not set such rulings aside unless it appears that "there has been a clear error of judgment." State v. J.A.C., 210 N.J. 281, 295 (2012) (quoting State v. Brown, 170 N.J. 138, 147 (2001)). We must be convinced that "the trial court's ruling is so wide of the mark that a manifest denial of justice resulted." Ibid. Having reviewed the record, we are satisfied the trial judge's decision to admit the specific threats to his girlfriend here was an error of that dimension, which, coupled with the prosecutor's misuse of the testimony in summation, warrants the grant of a new trial.
The trial court's failure to renew a Cofield analysis at the time it admitted defendant's threat to burn down his girlfriend's houses would also permit us to undertake a review of that ruling de novo. See State v. Darby, 174 N.J. 509, 518 (2002). Because the ruling fails the more deferential standard we ordinarily apply, the distinction is not important here.
As we noted, the State brought a pre-trial motion to admit defendant's threats to his girlfriend, prior bad-act evidence under N.J.R.E. 404(b), which was denied by another judge. Besides ruling that the State presented nothing to link the threats to the crimes with which defendant was charged so as to establish intent, absence of accident or identity (the reasons proffered by the State for admitting the evidence), the court recognized the prejudice to defendant from its admission would far outstrip any probative value it could have and, indeed, was "exactly the type of evidence that N.J.R.E. 404(b) seeks to exclude."
Nevertheless, the State argues it was not error to have admitted the threats because defendant opened the door to their admission on cross-examination. See State v. James, 144 N.J. 538, 554 (1996) (explaining "[t]he doctrine of opening the door allows a party to elicit otherwise inadmissible evidence when the opposing party has made unfair prejudicial use of related evidence"). Specifically, the State claims that after successfully precluding the prosecutor from introducing the threats, defense counsel "repeatedly questioned [the witness's] conduct after the fire, including her explanation that she did not provide information to police because she was afraid of defendant." It argues that "[d]efendant was not permitted to prevent the prosecutor from exploring [the witness's] fear of defendant, and then to suggest on cross-examination that her fears were unfounded or fabricated." We cannot agree.
It is important to remember that the State was permitted, both by the pre-trial ruling and the initial rulings of the trial judge, to bring out that the witness was afraid of defendant, and that he had threatened her. The only testimony the State was prohibited from eliciting on that score was the precise nature of the threats. Nothing in those rulings, however, prohibited defendant from challenging on cross-examination the witness's fear of defendant or suggesting other reasons for her belated disclosures to the police.
While defendant's girlfriend's fear of defendant might explain why she discarded the yellow shirt in the days after the fire, as he had yet to be apprehended, it is not so successful in explaining why she waited over five years after his apprehension to ever mention it to anyone. That is especially true when considering she told the police in 2011, three years after defendant was apprehended, of defendant's threats to her and his brother, including the threat to "set the motherfucker on fire," made while holding a gas can, but failed to mention anything about the shirt. The court's decision to exclude other bad-act evidence under N.J.R.E. 404(b) does not inoculate the State from such fair cross-examination of its witnesses. See N.J.R.E. 607.
Accordingly, defendant was free to explore on cross-examination whether the witness was truthful in saying she feared defendant. Although defendant's girlfriend got a temporary restraining order against defendant following his threats to kill her and burn down her houses, she dismissed the restraining order before the final hearing and went back to spending almost every night with him in the weeks before the fire. Defendant was certainly free to try and establish she was not afraid of him in an effort to damage the credibility of her delayed disclosures. See N.J.R.E. 607; State v. Gorrell, 297 N.J. Super. 142, 149-50 (App. Div. 1996).
The trial judge permitted the prosecutor to elicit the specific threats to the witness in response to defense counsel's questions regarding defendant's failure to ever carry out his threats against her. He reasoned that the witness
testified that she was frightened, she was threatened. He didn't carry the threats out. The jury can only speculate what were those threats never carried out. "Kill" is on their mind, [because] [the prosecutor] went into that area. I gave a curative instruction. But I think now the so-called door is open. Why didn't she cooperate with police, why didn't she take steps that were seemingly very logical, sensible under the circumstances. If she were frightened, the jury is going to believe it or not believe she was frightened. The fact that he, [defendant], had never burned anything she owned down before, never attempted to kill her before doesn't mean she couldn't be
frightened, particularly after news of the fire of the brother's house getting burned. I'll allow that as rebuttal evidence.The judge rejected defense counsel's objection that the threats were unfairly prejudicial under N.J.R.E. 404(b), stating "404(b) would be direct evidence in the case, the State's case in chief. This is essentially rebuttal evidence. I'm going to allow it."
Even were we to agree with the trial judge that defense counsel had "gone too far" in asking, after the witness agreed with defense counsel that defendant had never harmed her, or put his hands on her, that "even though he might have been angry, he never carried out what he said he was going to do," thereby "opening the door," we cannot agree that admission of the threats to burn down the witness's houses was warranted.
The prosecutor had already elicited from the witness that defendant had threatened to kill her, although the judge had directed the jury to disregard the testimony. If the trial judge believed defense counsel had somehow unfairly undercut the State's case that the witness's fear of defendant kept her from promptly reporting all she knew about defendant's threats to his brother, and the existence of the yellow shirt, by highlighting that defendant had never carried out his threats to her, see James, supra, 144 N.J. at 554, the judge could have allowed the prosecutor to elicit the threat to kill, without elaboration, on redirect. Defendant's girlfriend had already testified at length about defendant's threats to kill his brother by burning down his house. The jury could obviously consider whether she might have taken defendant's threats to kill her more seriously after defendant's brother died in a house fire, without also being advised of the dangerously prejudicial fact that defendant had threatened to use the same means for her demise a month earlier.
To the extent the judge believed he was relieved of a Cofield analysis under N.J.R.E. 404(b) because defendant had "opened the door," he erred. See State v. G.V., 162 N.J. 252, 264-65 (2000); see also State v. P.S., 202 N.J. 232, 257 (2010). Performing that analysis, we believe, would have made clear that nothing had changed in the posture of the case regarding these prior bad acts, relative to the first and fourth Cofield prongs that had precluded admission of the testimony pre-trial, after defendant's cross-examination of his girlfriend.
The first Cofield factor requires the bad-act evidence must be admissible as relevant to a material and disputed issue, meaning the "evidence must bear on a subject that is at issue at the trial, for example, an element of the offense or some other factor such as motive, opportunity, intent, or plan." P.S., supra, 202 N.J. at 255. Here, the State urged admissibility on the bases of intent, absence of accident or identity. As to the first two grounds, defendant did not contest that the cause of the fire was arson. The presence of an accelerant and two points of origin for the fire in an upstairs bedroom made clear that whoever started the fire intended to kill, and that the fire was no accident. As neither point was genuinely disputed, defendant's threats to his girlfriend would not be admissible as to those issues.
The issue of the killer's identity, however, was both material and disputed. But beyond suggesting he was disposed to set fire to the houses of people with whom he was angry, a purpose for which the evidence could expressly not be admitted under N.J.R.E. 404(b), defendant's alleged threats to burn down his girlfriend's house shed no light, initially, on the identity of his brother's killer.
We see only one possibility for how defense counsel's challenge to defendant's girlfriend's credibility might have altered the analysis. The State presented several witnesses who testified hearing defendant threaten his brother. But only defendant's girlfriend testified to noticing what defendant was wearing the night of the fire. More to the point, she testified she saw the same yellow shirt in her home a few days later, after defendant had disappeared, only now the shirt was smeared with dried blood and skin.
That testimony certainly bore on the identity of the killer. The State, however, as we have previously noted, needed to account for the fact that defendant's girlfriend never told anyone about finding the shirt until just days before defendant's trial. It did so by eliciting the witness's fear of defendant. It is important to note it was the prosecution that put the witness's state of mind at issue, not defendant. Cf. State v. Scharf, ___ N.J. ___, ___ (2016) (slip op. at 42-47) (discussing relevancy of state-of-mind hearsay to rebut defense that victim's death was accidental). Thus the prosecutor elicited the testimony about the witness's fear of defendant on direct examination to explain her delay in coming forward with information about the shirt that bore on the identity of the killer. All defense counsel did on cross-examination was to question the witness's credibility by probing whether her fear of defendant was genuine.
Of course, defendant's girlfriend's state of mind had nothing whatsoever to do with defendant's alleged murder of his brother by arson. The testimony was only important to her credibility generally and, specifically, her credibility as it related to finding defendant's stained shirt following the fire. Our Supreme Court, however, has repeatedly cautioned that other-crime evidence should not be admitted merely for the purpose of bolstering the credibility of a witness against defendant, lest Cofield, which was designed to limit the use of such inflammatory evidence, lose all meaning. See State v. Skinner, 218 N.J. 496, 520 (2014) (noting Court has repeatedly discouraged use of other-crime evidence "merely to bolster the credibility of a testifying witness"); P.S., supra, 202 N.J. at 256 (stating "other-crimes evidence should not be admitted solely to bolster the credibility of a witness against a defendant"); Darby, supra, 174 N.J. at 521 (emphasizing Cofield standard is rendered meaningless if "other-crime evidence is admissible merely to support the credibility of a witness").
Because defendant's threats to burn down his girlfriend's house were offered only to bolster the girlfriend's credibility regarding her fear of defendant, thereby explaining her delay in coming forward with evidence that bore on the identity of the killer, they should not have been admitted. The probative value of the threats for the actual identity of the killer was quite attenuated. And admitting them carried the very real risk the jury would conclude that because defendant threatened his girlfriend with burning down her houses, he has a propensity to set fires to harm people with whom he is angry, and thus must have set the fire that killed his brother, precisely what N.J.R.E. 404(b) forbids. See P.S., supra, 202 N.J. at 258; State v. Stevens, 115 N.J. 289, 306 (1989).
Defendant did not assert that his former girlfriend was biased against him, the so-called "vendetta defense," which might have invited closer scrutiny of the materiality of the evidence, still subject, of course, to a Cofield analysis. See G.V., supra, 162 N.J. at 264-65. The Court has since made clear it does "not read G.V. as an automatic basis for the admission of other-crimes evidence to counter a vendetta defense." P.S., supra, 202 N.J. at 259.
Indeed, the prosecutor misused the evidence in summation to argue exactly that:
[Defendant's girlfriend] made all this up? She just — just evaluate her. Evaluate [defendant's girlfriend] and think if she's capable of conjuring up all these stories. And evaluate her demeanor on the witness stand.If that is not a propensity argument, we do not know what would be. The State's argument that the remarks, "read in context," were merely "fair comment on [the witness's] state of mind at the time of the fire" and a fair response "to defense counsel's attack on the [the witness's] credibility" is utterly unpersuasive. No amount of context could disguise the patently improper use of this other bad-act evidence to prove defendant's disposition to set fires as a means of revenge on people he perceived as having wronged him. See G.V., supra, 162 N.J. at 260 (finding prosecutor's reference in summation to other-crime evidence as "just the way he operates" to be improper allusion to propensity).
. . . .
Now, think about what she's thinking in her mind. He's already — defendant's already threatened to kill [her] a month earlier. He tells her a month earlier I'm going to — not just anything, not going to kill you. But what does he use? What does he say? I'm going to set your house on fire, your house in Burlington and your house here. That's how he thinks. That's how he gets revenge on people. That's how he does it. He sets houses on fire. And all I need is a gallon of gasoline.
[(Emphasis added).]
The trial judge's failure to give the jurors an instruction on how they could — and could not — use the evidence that defendant had threatened to burn down his girlfriend's houses a month before the house fire that killed his brother seriously compounded the prejudice. See State v. Blakney, 189 N.J. 88, 93 (2006) ("It is the danger that other-crimes evidence may indelibly brand the defendant as a bad person and blind the jury from a careful consideration of the elements of the charged offense that requires the trial court to deliver the limiting instructions in a way that the jury can readily understand."); Cofield, supra, 127 N.J. at 340-41 (same); cf. Scharf, supra, slip op. at 57 (emphasizing the importance of a proper limiting instruction to guard against the risk a jury would consider victim's statements of fear as evidence of the defendant's intent or actions). The failure to instruct the jurors that they could use the threats only to evaluate defendant's girlfriend's credibility left them free to use the evidence against defendant as the prosecutor urged, as proof of "how [defendant] thinks," "how he gets revenge on people," "how he does it. He sets houses on fire."
We are well aware that there was no request for a limiting instruction and no objection to the prosecutor's remarks in summation. We cannot account for that. We conclude, notwithstanding, that the admission of defendant's specific threat against his girlfriend without a Cofield analysis, which we do not believe it could have survived, without any limiting instruction, and in light of the prosecutor's patent misuse of the evidence in summation, makes the error cognizable even under the less demanding plain error standard of Rule 2:10-2. See State v. Hernandez, 170 N.J. 106, 132-33 (2001); see also State v. Clausell, 121 N.J. 298, 323 (1990) (noting limiting instruction required for Rule 404(b) evidence even in the absence of defendant's request).
B
We comment only briefly on defendant's remaining argument regarding the prejudicial effect of the victim's statement made while he was engulfed in flames, and repeated over and over, "my brother, my brother." Although the testimony went in because defendant failed to interpose any objection to it, the judge expressed concern at a break, asking counsel: "What's the exception for the statements . . . allegedly made by [the victim], 'My brother, my brother, my brother did this.' It came in over and over again. How does it come in?"
That was not the first time the judge expressed concern over the admissibility of the statements. The judge had asked the prosecutor whether he planned on eliciting such testimony before trial began. When the prosecutor confirmed he would be eliciting the testimony, the judge responded, "Well, we'll probably have to have a hearing on that." The prosecutor did not seek such a hearing. Instead, he previewed the testimony in his opening. Defendant made no objection. --------
Following briefing and argument, the judge rejected the State's proffer that the hearsay statements were admissible as excited utterances under N.J.R.E. 803(c)(2), dying declarations under N.J.R.E. 804(b)(2) or then existing state of mind under N.J.R.E. 803(c)(3), and decided to give a curative instruction twelve days after the jury heard the testimony. Relying on the trial judge's statements that the testimony was "highly prejudicial stuff" and "in a given case might be cause for mistrial," defendant contends the evidence was inadmissible and the judge's curative instruction inadequate to counter the prejudice to him.
The State has on appeal abandoned reliance on N.J.R.E. 803(c)(3), which has an express exclusion for "a statement of memory or belief to prove the fact remembered or believed," but continues to press arguments that the statements were admissible as either excited utterances or dying declarations.
We are satisfied the trial judge did not abuse his discretion in finding the proofs inadequate to establish the victim made the statements conscious of his impending death. The victim survived for four days after the fire, and no witness testified to anything suggesting he understood his death was imminent. See State v. Taylor, 350 N.J. Super. 20, 37 (App. Div.), certif. denied, 174 N.J. 190 (2002).
We differ slightly with the trial judge's rationale for excluding the statements. We reject the notion that they could not qualify as excited utterances because they involved a narrative process. N.J.R.E. 803(c)(2), which defines an excited utterance 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 fabricate," contains no such qualification.
Further, our Supreme Court has reasoned that such statements "are admissible under the rationale 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." State v. Buda, 195 N.J. 278, 293 (2008) (quoting State v. Cotto, 182 N.J. 316, 327-28 (2005)). Because it is the startling event and the lack of time to fabricate that creates the presumption of trustworthiness in the statement, the rationale underlying the rule would appear to support admission of a statement of belief as well as one of fact. There is federal authority for that proposition construing Fed. R. Evid. 803(2). See Woodward v. Williams, 263 F.3d 1135, 1141 (10th Cir. 2001), cert. denied, 535 U.S. 973, 122 S. Ct. 1442, 152 L. Ed. 2d 385 (2002); United States v. Hartmann, 958 F.2d 774, 784 (7th Cir. 1992).
Nonetheless, we agree with the trial court that the statements were not admissible as the victim's belief that it was his brother who set the fire. While certainly material to the identity of the arsonist, a central issue in the case, the victim's belief was based on nothing more than the same circumstantial evidence available to the jurors, that is, that his brother had previously threatened his life. His statement would thus be no more than an expression of his opinion, and while obviously earnestly held, could not satisfy either prong of N.J.R.E. 701, as it was not "rationally based on the perception of the witness" and would not "assist in . . . in determining a fact in issue." See State v. McLean, 205 N.J. 438, 462 (2011) (holding that a police officer's lay opinion that he had witnessed a drug transaction was inadmissible as the jury was capable of making that determination for itself). Our review of the trial judge's ruling striking the testimony convinces us that this was likewise the essential basis of his ruling.
Even if considered a dying declaration, however, and thus immune from the strictures of the opinion rule, see State v. Hegel, 113 N.J. Super. 193, 201 (App. Div.), certif. denied, 58 N.J. 596 (1971), the statements were not admissible without first considering whether they could be admitted without undue prejudice to defendant. Id. at 201-02. Because we agree with the trial judge that the statements were highly inflammatory and improper lay opinion, we agree they were properly excluded. Our disposition makes it unnecessary to address defendant's arguments regarding the efficacy of the curative instruction.
C
We have considered the State's argument that the admission of defendant's threat to burn down his girlfriend's houses, the prosecutor's misuse of that evidence in summation and the victim's statements, while engulfed in flames, that his brother was responsible, even if error, were harmless "in light of the overwhelming evidence of defendant's guilt." Notwithstanding the trial judge's overall fair and conscientious approach to the several difficult issues presented at this trial, because the combination of those errors deprive us of confidence in the verdict, we reverse. See State v. Reddish, 181 N.J. 553, 615 (2004) ("we cannot excuse error on the basis of other overwhelming evidence of guilt when that other evidence also possesses the taint of error"). The arguments raised in defendant's supplemental brief, to the extent that we have not addressed them here, are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed in part; reversed in part; and remanded for a new trial. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION