STATE OF NEW JERSEY v. CARL J. GARRISON

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CARL J. GARRISON,

Defendant-Appellant.

____________________________________________

August 17, 2015

Submitted April 14, 2015 Decided

Before Judges Fisher, Nugent and Manahan.

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 11-11-1174.

Joseph E. Krakora, Public Defender, attorney for appellant (Mark H. Friedman, Assistant Deputy Public Defender, of counsel and on the brief).

SeanF. Dalton, Gloucester County Prosecutor, attorney for respondent (Dianna Reed-Rolando, AssistantProsecutor, on the brief).
 

PER CURIAM

Defendant, Carl J. Garrison, appeals his conviction for aggravated sexual assault, sexual assault, and endangering the welfare of a child. Since we conclude that the court's ruling admitting "res gestae" evidence was in contravention of our Supreme Court's decision in State v. Rose, 206 N.J. 141 (2011), we are constrained to reverse the conviction and remand for a new trial.

Defendant was indicted by the Gloucester County Grand Jury on multiple counts of first-degree aggravated sexual assault and second-degree sexual assault as well as one count of third-degree endangering the welfare of a child.

After trial, the jury convicted defendant on three counts of first-degree aggravated sexual assault, two counts of second-degree sexual assault (one as a lesser-included offense of aggravated sexual assault) and one count of third-degree endangering the welfare of a child. The jury acquitted defendant on four counts of sexual assault. On September 3, 2013, defendant was sentenced to consecutive terms amounting to an aggregate of fifty-two years in prison with an 85% period of parole ineligibility, N.J.S.A. 2C:43-7.2, all to run consecutively to another prison term defendant was serving at the time of this sentencing.

We confine our recitation of the statement of facts and procedural history to that required for purpose of our decision.

In the summer of 2010, defendant, then fifty-three years old, dated Harriet.1 Defendant often stayed at Harriet's trailer in Williamstown, New Jersey, with Harriet and her daughters, Joan and Nancy. The trailer had two bedrooms. Defendant and Harriet would share one bedroom and the girls would share the other. That summer, defendant, Harriet, Joan and Nancy also stayed in Alabama for several weeks to work on rehabilitating defendant's mother's house. They stayed in a trailer next to the house.

Joan, then eleven-years old, was sexually abused by defendant at the trailer in Williamstown, as well as in Alabama. Defendant put his hand in Joan's pants and inside her vagina; he exposed himself to Joan several times throughout the summer and showed Joan pornography. Defendant also engaged Joan in acts of oral sex, vaginal intercourse and anal penetration. Additionally, while in Alabama, defendant played "strip poker" on one occasion with Joan and Nancy.2 During the course of the abuse, defendant told Joan not to tell anyone because it would ruin his relationship with her mother and he would go to prison.

In September 2010, DYFS3 removed Joan and Nancy from their mother's custody and then placed them with their father, Sam, in December 2010. In May 2011, Joan disclosed to her father that defendant had sexually abused her repeatedly during the summer of 2010, both in New Jersey and Alabama.

Defendant provided a statement to the Monroe Township Police Department denying the sexual assaults, but admitting that he played "strip poker" with the girls while they were in Alabama.

The trial commenced in April 2013. During trial, defendant moved to exclude any evidence concerning the game of "strip poker." The trial judge denied the motion without conducting a testimonial hearing. N.J.R.E. 104. The judge found the testimony and evidence was relevant "as to what occurred, not as other-crimes evidence, but as part of the actual crime." The judge held

I will allow the testimony [regarding "strip poker"] as to what occurred, not as other-crimes evidence, but as part of the actual crime.

So the testimony of what happened in Alabama will be permitted. Actually . . . there is not an instruction as under 404(b).

I should note that I have reviewed Evidence Rule 403, and I don't find it should be excluded there. It certainly has high probative value. And that probative value is not substantially outweighed by the risk of undue prejudice, confusion of issues or misleading the jury, or undue delay, waste of time or needless presentation of cumulative evidence.

I think it's part of the entire story. It needs to be part of it. Certainly it's prejudicial to the defendant. But that prejudice does not outweigh the strong probative value. So it clearly meets those tests.

The judge provided a curative instruction at the time the testimony was given, telling the jury that this evidence was to be "used only with regard to the charges that have been indicted in New Jersey" and that they were "not to speculate as to whether this conduct resulted in any charges in Alabama." The judge repeated the instruction in the final charge.

On appeal, defendant argues that the admission of this "intrinsic evidence" was erroneous. Since trial counsel objected to the admission of evidence of defendant's participation in the strip poker game as highly prejudicial, on appeal we first determine whether there was error, and if error, whether it was "harmful error." An error will not lead to reversal unless it is "clearly capable of producing an unjust result." R. 2:10-2; see also State v. Macon, 57 N.J. 325, 337-38 (1971).

A trial court's evidentiary rulings are accorded substantial deference and will not be disturbed on appeal absent a finding that the court abused its discretion in admitting or excluding evidence. Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000). This standard governs review of the admissibility of other-crimes evidence under N.J.R.E. 404(b), which is left to the discretion of the trial court, "because of its intimate knowledge of the case." State v. Covell, 157 N.J. 554, 564 (1999) (quoting State v. Ramseur, 106 N.J. 123, 266 (1987)). Appellate courts will only overturn an N.J.R.E. 403 determination upon a "clear error of judgment." State v. Koedatich, 112 N.J. 225, 313 (1988), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989).

In Rose, our Supreme Court specifically addressed the "invocation" of res gestae as the basis for admission of evidence rather than by application of the New Jersey Rules of Evidence.

In sum, New Jersey's Evidence Rules provide the structure by which evidential rulings should be analyzed and explained by trial courts, informed by the paradigm set forth herein. With this opinion, we disapprove of the further use of res gestae to support evidentialrulings. Fundamentally, invocations of res gestae as the basis for the admission of evidence do lack the analytic rigor, precision, and uniformity that evidential rulings were intended to have under the codified Evidence Rules. Therefore, with this appeal, we end the practice of invoking "res gestae" as an explanation for the admission of evidence, in circumvention of the application of the formal Rules of Evidence. We do this as an aid for courts and for litigants because it will promote uniformity and predictability in the consideration of evidence. We hold that the New Jersey Rules of Evidence must govern the analysis, and support the admission of evidence that heretofore has been referred to as res gestae.

[Rose, supra, 206 N.J. at 182 (footnote omitted).]

Here the court, although referencing N.J.R.E. 403 and 404(b), premised the admission of the "strip poker" evidence "as part of the actual crime" and did not subject the evidence to the "strictures" of Rule 404(b). Id. at 177; State v. Cofield, 127 N.J. 328 (1992).

In this vein, the Court in Rose noted

Whenever the admissibility of uncharged bad act evidence is implicated, a Rule 404(b) analysis must be undertaken. The threshold determination under Rule 404(b) is whether the evidence relates to "other-crimes," and thus is subject to continued analysis under Rule 404(b), or whether it is evidence intrinsic to the charged crime, and thus need only satisfy the evidence rules relating to relevancy, most importantly Rule 403.

Although Rule 404(b) is often described as one of exclusion, it focuses on a distinct, worrisome category of evidence that, if presented, is only admissible for limited purposes, and the jury must be informed both as to how the evidence may, and may not, be used. The rule provides an analytical framework through which all potential "other-crimes, wrongs, or acts" evidence should be sifted. Hence Rule 404(b) shall be the default starting point for analysis of uncharged bad acts that in the past had been also known as res gestae.

[Rose, supra, 206 N.J. at 179-80.]

In not subjecting the admission of the "strip poker" evidence to the requisite "analytical framework," its admission was erroneous. Notwithstanding, we must next determine whether the error was "clearly capable of producing an unjust result." R. 2:10-2. Since we hold that the judge should have considered the proposed evidence through the lens of the Rules of Evidence, we address whether failure to do so undermines our confidence in the trial's outcome. See Macon, supra, 57 N.J. at 337-38. In our undertaking, we recite the "strictures" to which the proffered evidence should have been exposed.

We have no hesitation in concluding that the admission of the strip poker evidence -- on the faulty conclusion that it was intrinsic to the crimes charged -- was harmful. This is demonstrated by the fact that the judge instructed the jury that this information could be utilized by the jury to determine "what occurred" in assessing whether defendant committed the "actual crime[s]" charged. Because we have no method for understanding how the jury used this information, we must assume that the jury followed the judge's instruction and that the strip poker evidence was utilized by the jury in convicting defendant of the crimes charged.

The prejudicial effect of the strip poker evidence also becomes apparent even if we were to view it as erroneously admitted other-crimes evidence. Our courts have recognized that other-crimes evidence, even when probative of an issue in dispute, has the strong potential to cause irreparable prejudice to a defendant because of its natural "tendency to demonstrate a criminal predisposition[.]" State v. G.S., 145 N.J. 460, 468 (1996). Other-crimes evidence has the capacity to "blind the jury from a careful consideration of the elements of the charged offense" and so tarnish a defendant that he may be convicted on the basis of what he once was rather than what he has recently done. State v. Blakney, 189 N.J. 88, 93 (2006). In order to safeguard against the misuse of other-crimes evidence, we have required our trial courts to adhere to strict standards before admitting such evidence and, typically, to conduct a N.J.R.E. 104 hearing out of the presence of the jury. State v. Hernandez, 170 N.J. 106, 127 (2001).

In Cofield, the Supreme Court enunciated a four-part test for admission of evidence of other crimes or bad acts under N.J.R.E. 404(b)

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.

[Cofield, supra, 127 N.J. at 338.]

Satisfaction of the first prong of Cofield requires that the evidence be relevant to a material issue that is "genuinely disputed." Ibid. (citing State v. Stevens, 115 N.J. 289, 301 (1989)). "'Relevant evidence' means evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. "In criminal prosecution, New Jersey courts generally admit a wider range of evidence when motive or intent of the accused is material." Covell, supra, 157 N.J. at 565 (quoting State v. Rogers, 19 N.J. 218, 228 (1995)). This includes evidence "that 'tend[s] to shed light' on a defendant's motive" or "'tend[s] fairly to explain his actions.'" Ibid. (quoting Rogers, supra, 19 N.J. at 228). This inquiry favors admissibility. State v. Deatore, 70 N.J. 100, 116 (1976).

Satisfaction of the second prong of Cofield requires that the evidence be similar in kind and reasonably close in time. Cofield, supra, 127 N.J. at 338. However, "when motive is the object of the proffered evidence, similarity is not a requirement for admissibility." State v. Castagna, 400 N.J. Super. 164, 179 (App. Div. 2008).

Satisfaction of the third prong of Cofield requires that the State prove the other crime or bad act by clear and convincing evidence. Cofield, supra, 127 N.J. at 338.

Satisfaction of the fourth prong of Cofield requires application of the balancing test of N.J.R.E. 403. Otherwise relevant evidence is excluded "if 'its probative value is substantially outweighed by the risk of . . . undue prejudice.'" Covell, supra, 157 N.J. at 568 (quoting N.J.R.E. 403). "[E]vidence claimed to be unduly prejudicial can be excluded only where its probative value 'is so significantly outweighed by [its] inherently inflammatory potential as to have a probable capacity to divert the minds of the jurors from a reasonable and fair evaluation' of the basic issues of the case." Ibid. (quoting State v. Thompson, 59 N.J. 396, 421 (1971)). Generally, "[t]he 'more attenuated and the less probative the evidence, the more appropriate it is for a judge to exclude it' under N.J.R.E. 403." Id. at 569 (quoting State v. Medina, 201 N.J. Super. 565, 580 (App. Div.), certif. denied, 102 N.J. 298 (1985)). Our Supreme Court has acknowledged that the fourth prong of the Cofield test is the "most difficult." State v. Barden, 195 N.J. 375, 389 (2008).

In application of the four prong test to the record, we are not convinced that the "strip poker game" evidence would have been admissible. Notably, in order to satisfy the third prong, the State would be required to prove that the game had an impermissible sexual aspect by clear and convincing evidence. Defendant and Harriet denied that there was nudity involved in the game, in contrast to the description of the game provided by Joan and Nancy. Given these disparate accounts, we are uncertain whether a fact finder, after a testimonial hearing, would have determined the State met its burden of persuasion.

Even were we to conclude, predicated upon our own analysis, that the four prongs of Cofield could have been satisfied, two required safeguards, critical to that evidence's admission, could not be satisfied based upon the manner in which the evidence was admitted.

First, in an effort to reduce the inherent prejudice in the admission of other-crimes evidence, our Supreme Court has emphasized that such testimony must be sanitized when appropriate. Barden, supra, 195 N.J. at 390; State v. Fortin, 318 N.J. Super. 577, 598 ("judge must 'sanitize' the other-crime evidence by confining its admissibility to those facts reasonably necessary for the probative purpose . . ."), aff d, 162 N.J. 517 (2000). There was no "sanitization" hearing conducted.

Second, once the trial court determines that the evidence of other crimes is admissible, in addition to sanitizing the evidence when appropriate, the court must carefully instruct the jury as to its limited use. The instruction should be given when the evidence is presented and in the final charge to the jury. Ibid. There were no instructions given as to the other-crimes evidence's use at the time of the introduction or in the final charge. State v. Gillispie, 208 N.J. 59, 93 (2011).

Finally, in regard to the effect of the error, the subject of the "strip poker" game permeated the trial. It was addressed on direct and cross-examination during the testimony of the State's witnesses: Detective Sergeant Hemple, Joan, Nancy and Sam. It was also addressed on direct and cross-examination during the testimony of the defense witnesses: Harriet and defendant.

Under these circumstances, we are convinced that the erroneous admission of the testimony had the clear capacity to influence the jury's verdict. As such, we are compelled to reverse the conviction.

Given our decision, we do not need to address defendant's remaining arguments.4

Reversed and remanded. We do not retain jurisdiction.

1 We utilize fictitious names for the mother, father and the minor children.

2 While Harriet testified she was present during the game and no nudity was involved, Joan and Nancy testified that Harriet was not present and that defendant was nude during the game and they only wore their panties.

3 The New Jersey Division of Youth and Family Services is now known as the New Jersey Division of Child Protection and Permanency.

4 However, we note our agreement with defendant's argument that the testimony of the State's pediatric medicine expert, Dr. Baker was harmful error. Dr. Baker's testimony that "[O]verall, 95 to 96 percent of children, who give a credible disclosure of sexual contact, have a normal or a non-specific exam," impermissibly vouched for Joan's credibility. See State v. W.B., 205 N.J. 610-614 (2011). Had we been required to address this argument, we would have concluded, based upon the critical issue of Joan's credibility, this statistical testimony constituted "plain error." Macon, supra, 57 N.J. at 333 (1971).