STATE OF NEW JERSEY v. SHAWN STRADER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4670-04T44670-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

SHAWN R. STRADER,

Defendant-Appellant.

________________________________________________________________

 

Submitted March 7, 2007 - Decided May 4, 2007

Before Judges Winkelstein, Fuentes and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Salem County, Indictment No. 02-11-0547 and Accusation No. 04-05-0035.

Yvonne Smith Segars, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).

John T. Lenahan, Salem County Prosecutor, attorney for respondent (Thomas A. DeSimone, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Shawn Strader appeals from his conviction of first degree attempted murder, in violation of N.J.S.A. 2C:5-1 and 2C:11-3(a); second degree aggravated arson, in violation of N.J.S.A. 2C:17-1(a) (count two); third degree burglary, in violation of N.J.S.A. 2C:18-2 (count three); fourth degree criminal contempt, in violation of N.J.S.A. 2C:29-9(b) (counts five and six); third degree terroristic threats, in violation of N.J.S.A. 2C:12-3(a) (count seven); and third degree criminal mischief, in violation of N.J.S.A. 2C:17-3 (count eight). Defendant was acquitted on a fourth degree charge of creating a risk of widespread injury or damage in count four.

Following his conviction at trial, defendant entered a negotiated plea of guilty on an unrelated accusation charging him with second degree attempted escape, in violation of N.J.S.A. 2C:29-5 and N.J.S.A. 2C:5-1.

The court sentenced defendant to a ten-year term of imprisonment for the conviction of attempted murder, with eighty-five percent to be served without eligibility for parole, pursuant to the terms of the No Early Release Act. N.J.S.A. 2C:43-7.2. On count two, a concurrent seven-year term of imprisonment was imposed, again subject to the provisions of the No Early Release Act. Ibid. Concurrent four-year terms of imprisonment were imposed on all third degree counts, and eighteen-month terms of imprisonment were imposed on counts five and six. All counts were ordered to be served concurrent to each other, consecutive to a seven-year sentence on Accusation No. 04-05-0035. Appropriate fines and penalties were imposed.

On appeal, defendant raises the following issues:

I. THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF THE TRIAL COURT'S FAILURE TO SUA SPONTE SEVER THE TWO COUNTS OF CONTEMPT ARISING OUT OF A VIOLATION OF AN EXISTING DOMESTIC VIOLENCE RESTRAINING ORDER FROM THE OTHER SUBSTANTIVE OFFENSES CONTAINED IN THE INDICTMENT, REQUIRING THAT THOSE RESULTING CONVICTIONS BE REVERSED AND SENTENCE IMPOSED THEREON BE VACATED.

II. THE TRIAL COURT ERRED BY PERMITTING THE STATE TO ELICIT INADMISSIBLE AND HIGHLY PREJUDICIAL TESTIMONY PURSUANT TO N.J.R.E. 404(b).

A. THE PREVAILING LEGAL PRINCIPLES REGARDING THE ADMISSIBILITY OF OTHER CRIME TESTIMONY PURSUANT TO N.J.R.E. 404(b).

B. NONE OF THE FIVE INCIDENTS IN QUESTION SATISFIED ALL PRONGS OF THE COFIELD STANDARD TO WARRANT THEIR ADMISSIBILITY AT TRIAL.

III. THE TRIAL COURT'S CHARGE TO THE JURY REGARDING THE TESTIMONY ADMITTED PURSUANT TO N.J.R.E. 404(b) WAS INADEQUATE, INACCURATE AND INSUFFICIENT. (NOT RAISED BELOW).

IV. THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF NUMEROUS INCIDENTS ELICITED BY THE PROSECUTOR ASSOCIATING THE DEFENDANT WITH PRIOR CRIMINAL OR INAPPROPRIATE CONDUCT, OR BY ESTABLISHING THE DEFENDANT'S CONTINUING INCARCERATION FROM THE TIME OF HIS ARREST TO THE TIME OF TRIAL. (NOT RAISED BELOW).

A. THE TESTIMONY ELICITED BY THE PROSECUTOR WAS OUTSIDE THE SCOPE OF N.J.R.E. 404(b) AND WAS CLEARLY IMPROPER AND INFLAMMATORY BY ASSOCIATING THE DEFENDANT WITH PRIOR CRIMINAL OR INAPPROPRIATE CONDUCT AS WELL AS BY ESTABLISHING HIS CONTINUED INCARCERATION FROM THE TIME OF HIS ARREST TO THE TIME OF TRIAL.

V. THE TRIAL COURT FAILED TO ADEQUATELY INSTRUCT THE JURY REGARDING COUNTS I, V, VI AND VIII. (NOT RAISED BELOW).

A. THE TRIAL COURT OMITTED AN ESSENTIAL ELEMENT REFLECTED IN THE MODEL JURY CHARGE REGARDING ATTEMPTED MURDER EMBODIED IN COUNT I DURING ITS CHARGE TO THE JURY.

B. THE TRIAL COURT INSTRUCTED THE JURY REGARDING A DIFFERENT STATUTORY REFERENCE AND A DIFFERENT CORRESPONDING MODEL JURY CHARGE THAN THAT REFLECTED IN THE INDICTMENT REGARDING THE CHARGES OF CONTEMPT EMBODIED IN COUNTS V AND VI OF THE INDICTMENT.

C. THE TRIAL COURT FAILED TO FOLLOW THE APPLICABLE MODEL JURY CHARGE REGARDING THE CHARGE OF TERRORISTIC THREATS EMBODIED IN COUNT VII OF THE INDICTMENT DURING ITS CHARGE TO THE JURY.

VI. THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF HEARSAY TESTIMONY ELICITED FROM PATROLMAN MARTIN ALLEGING THE DEFENDANT MADE ADDITIONAL AND MORE SERIOUS THREATS THAN THE THREAT OCCURRING THROUGH HIS TELEPHONE CALL WITH VALERIE LAND. (NOT RAISED BELOW).

VII. THE TRIAL COURT ERRED BY PERMITTING THE PROSECUTOR TO ELICIT TESTIMONY FROM VALERIE LAND THAT SHE BELIEVED THE DEFENDANT WAS GUILTY.

VIII. THE TRIAL COURT FAILED TO ADEQUATELY INSTRUCT THE JURY REGARDING CERTAIN ASPECTS OF TESTIMONY NOT SUBJECT TO N.J.R.E. 404(b). (PARTIALLY RAISED BELOW).

IX. ASSUMING THE TRIAL COURT DID NOT ERR BY FAILING TO SUA SPONTE SEVER THE CONTEMPT CHARGES FROM THE OTHER COUNTS OF THE INDICTMENT, IT FAILED TO ISSUE AN APPROPRIATE LIMITING INSTRUCTION TO THE JURY PURSUANT TO N.J.R.E. 404(b). (NOT RAISED BELOW).

X. THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY. (NOT RAISED BELOW).

XI. THE DEFENDANT'S GUILTY PLEA TO THE CHARGE OF ATTEMPTED ESCAPE EMBODIED IN THE ACCUSATION MUST BE VACATED IN THE ABSENCE OF A FACTUAL BASIS PROVIDED AT THE TIME THE PLEA WAS ENTERED.

XII. THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

We agree with defendant's arguments with respect to Points IV, V(B), VI, VII and X, and reject the arguments raised in Points I, II and XI. Our disposition of this appeal renders unnecessary any discussion of the sentencing argument advanced in Point XII, or of the arguments raised in Points III, V(A), V(C), VIII and IX. We reverse and remand for a new trial on the indictment, and affirm the conviction on the escape charge contained in the accusation.

I.

Defendant was convicted of setting fire to the home of the family of his former girlfriend, Valerie Land. Valerie began dating defendant sometime in 2000, and their daughter Emily was born in the latter part of 2001. After Emily's birth, defendant lived with Valerie and Emily at the home owned by Valerie's father Ralph Land, Sr., located at 24 Gumm Place in Pennsville. Valerie's brother Ralph, Jr., and his three-year-old son Nicholas also lived in the home, along with Valerie's sixteen-year-old nephew William Gannon. Defendant was welcome at the residence and continued to live there until his relationship with Valerie deteriorated in January 2002 to such a point that she sought and obtained a restraining order against him. Defendant knew that generally the front and back doors of the home were kept unlocked, as was the door to an outside shed, and he was aware that several cans of gasoline were kept in the unlocked shed.

At trial, the Court permitted the State to present to the jury a considerable amount of evidence describing five prior bad acts allegedly committed by defendant. The day before opening statements were presented, the court had conducted an N.J.R.E. 104(a) hearing to consider the scope of such testimony. No witnesses testified at the N.J.R.E. 104(a) hearing, but the State described in considerable detail the events it intended to present through the testimony of Valerie. Defendant objected, arguing that the incidents were unduly prejudicial and did not satisfy the evidentiary standard governing admissibility of such evidence. The court disagreed, ruling that the incidents established defendant's "knowledge of the [Land home] and the . . . passage ways that are behind it." The court further ruled that the proffered evidence established a possible motive for the arson. The Court held that all of what the State sought to introduce entailed defendant's jealous rages and violent conduct whenever he learned that Valerie was in contact with a man other than himself or whenever she was attempting to break off her relationship with him.

Accordingly, Valerie was permitted to testify that she was at the home of a male friend Brian Layer in July of 2001, when defendant knocked on the apartment door. Layer's mother answered the door and told defendant Valerie did not want to see him and that he should leave. Through a bedroom window Valerie saw defendant bend down and slash the tires of her father's car, which she had driven to Layer's apartment.

On January 8, 2002, defendant was changing the battery in Valerie's cell phone and while doing so, he checked the text messages. When he saw several messages from her ex-boyfriend, "[h]e got mad, got real mad. . . . and he just liked snapped, he went off on [her]." Valerie described how he angrily threw the phone at the side of her head and started punching her until she fell down on the floor. Her sixteen-year-old nephew, Gannon, interceded, after which the police were called and Patrolman Jake Slusher responded to the scene. When asked to describe Valerie's appearance, Slusher testified "[s]he appeared to have been struck multiple times. She had bruising on her cheeks. She had cuts to her face, . . . [s]he was hysterical, upset and crying." She was subsequently brought to the emergency room. Slusher and other officers found defendant in the dark wooded area behind the house, and when they placed defendant under arrest, he "blurted out" that he "f----d up" and "lost [his] mind earlier" because Valerie's old boyfriend had called.

After that incident, Valerie sought and retained a restraining order against defendant, which was served on him on January 31, 2002. Despite the restraining order, she testified that defendant called her by telephone for several months from jail, and she accepted his calls. She further explained that "he was locked up for what he did to [her] in January." Defendant did not object to her reference to his being in jail. After defendant's release from custody, Valerie resumed her relationship with him, and the two moved into his parents' home in Lower Alloway Creek. She explained that she chose to become involved with him again, despite the restraining order, because he promised to obtain anger management counseling, and she wanted to establish a proper family setting for her daughter. She acknowledged that even though the restraining order barred defendant from coming near her, she "continually came close to him." She agreed that when she and defendant "got along good, [she] did not file for a violation of the restraining order," but if there was "some conflict, [then she] would call the police." One day, Valerie and defendant's sister Colleen were standing outside when defendant approached them jogging. When Valerie laughed at the way he looked, defendant angrily ripped her shirt half way off.

After a few weeks at defendant's parents' house, Valerie decided to move out because of conflict with Colleen. On the night of May 30, 2002, while Valerie was packing her belongings in anticipation of moving out the next day, defendant "wouldn't leave [her] alone" and persisted in arguing with her for several hours until at 4:00 a.m. he became so angry that he grabbed her by the throat. After that incident, she returned to her father's residence. The next day, defendant learned that she had given his cousin a ride home from a bar the previous night. She testified that defendant started "flipping out on [me]." Defendant angrily yelled over the telephone, "what the f--- is wrong with you? Why do you got to ride around in the car with another man? . . . [D]o you want another January incident? I'm going to beat you up."

Defendant's threats so frightened her that she took Emily and went to the home of her friend Paula Ferris because there were two "decent size men" living there. Shortly after she arrived at Ferris's house, defendant called the home, and Ferris's friend, Ricky Conklin, answered. Conklin related to Valerie what defendant said, which resulted in Valerie and Ferris going to the police station to report that defendant "was after [her] . . . [and] he was threatening [her]." Valerie described to police officer Amy Martin both the threat defendant made to her earlier that day after he learned that she had driven his cousin home from the bar and the threat defendant made against her as related by Conklin. In her testimony, Valerie did not provide any details about the nature of the threat.

Those details came from Officer Martin, who testified that Conklin reported to Valerie and Ferris that defendant had threatened to kill Valerie, damage her vehicle and cause her to be fired from her job. After learning that a domestic violence restraining order was then in effect, Martin prepared the necessary warrants to charge defendant with two counts of a violation of the restraining order.

Martin advised her to move to a women's shelter for her own protection. She and Ferris returned to Ferris's home so that Valerie could pack her belongings to move to the shelter. As soon as they opened their car doors, defendant came "flying on his bike into the driveway." At Ferris's request, one of the men in the house came outside and ordered defendant to leave, which he did. Valerie stayed at Ferris's home the night of June 1, but went to the women's shelter the next day.

On the evening of June 2, and into the early morning hours of June 3, only Land, Land, Jr., Gannon and Nicholas were at Land's home as Valerie was staying at a women's shelter. Both Land and Land, Jr., testified that the backdoor had been unlocked that night, as it was most nights. Land, Jr., who was sleeping in a recliner in the living room, awakened "choking on black smoke" and with eyes that were "burning." Nicholas was asleep in his crib in his father's bedroom, and Land was asleep in his own room. Gannon was sleeping on a couch in the living room when his grandfather awakened him because the house was on fire. All occupants of the house escaped safely, but the kitchen and a hallway that shared a wall with the room where Nicholas slept, were heavily damaged.

Later in the morning of June 3, Valerie was at work when she received a phone call from her father telling her that "Strader burnt the house down." During her testimony describing this conversation, the assistant prosecutor interrupted, asking "[n]ow he didn't know Shawn Strader burnt the house down, that was just a statement he made, right? . . . that's what this is here to prove. I just want to make sure everybody's clear that that was just somebody else's opinion."

After receiving the phone call from her father, she drove to the police station, and a police officer drove her to her father's home, where she observed black smoke still coming through the front door and the entire kitchen burned.

An arrest warrant was issued for defendant, and Patrolman Gibison was dispatched to defendant's home to apprehend him. Gibison testified that he parked his patrol car about a block away from defendant's home "[s]o [defendant] wouldn't see [him] pull up if he was at the residence." Gibison approached on foot and did not knock on the door because he had been there before looking for defendant and defendant was "known to flee if [the police] arrive on scene."

Detective Paul Henke of the New Jersey State Police Arson Unit testified that defendant was very calm after being arrested and displayed "a very nonchalant attitude" until Detective Cummings walked by carrying the gas can. At that point, defendant "turned around and put his head down." Henke testified that when he advised defendant of the possibility of finding his fingerprints on the gas can, defendant was "[k]ind of cocky" and responded that his prints would not be found on the can. Defendant's boots were removed, photographed and analyzed, after which Cummings testified that the measurements of defendant's left boot was "consistent" with that of the shoeprint found at the scene. George Chin, a forensic scientist, testified that defendant's pants and both boots tested "positive for accelerants."

On the night defendant was arrested, Valerie accepted a collect call from defendant from the Salem County Jail. Jail records were introduced verifying that a call was made from the jail to the Land residence. Valerie described him "crying over and over and over about how sorry he was," and saying that he set the fire because he "lost his mind" when he could not find her. She told him that if she and Emily had been there, they could have suffocated from the smoke, to which he responded that he knew she and Emily were not there because her car was missing and when he peered in her bedroom window she was not in her bed. During that conversation, she told defendant that the police had found his fingerprints on a gas can. Valerie acknowledged on cross-examination that this was a lie to try to "get him to confess more."

Valerie testified that up until the point where she told him about his fingerprints, he had been "crying and apologetic." As soon as she referred to his fingerprints, his attitude changed and he became "real stubborn," stating "[t]hey ain't got s--t on me." The following testimony and objection then occurred:

Q What did you take him to be meaning?

A Oh, to be meaning that he had something to hide his fingerprints. So what he said he was implying that there's no way for them to find his fingerprints.

[DEFENSE COUNSEL]: Objection, Your Honor.

THE COURT: And the basis?

[DEFENSE COUNSEL]: She's not a mind reader, . . . she doesn't know exactly what he meant.

[ASSISTANT PROSECUTOR]: She can certainly interpret a context of a conversation. That's all she -- her interpretation's being asked for.

THE COURT: The present sense impression is, of course, this witness could not tell what it was that [defendant] may have meant, if indeed it was him at all, but she can testify as to what she felt or thought that it meant. And as long as the jury understands the difference, I'll permit it.

Q What did you feel he meant when he got stubborn and started telling you about the lack of fingerprints on the gas can?

A That he did it and he hid his -- like maybe he wore gloves or somethin', he didn't say he wore gloves, but the way he said it, it made it obvious that he was hiding his fingerprints.

Q And he stopped crying at that point, and became stubborn? Cocky maybe?

A A little.

Despite the judge's comment that "as long as the jury understands the difference," the judge did not issue a limiting instruction.

The State also called Gannon, who testified that the day before the early-morning fire, he had a conversation with defendant during which defendant "said he was gonna get revenge on my family" and that "Nicholas was going bye-byes."

Numerous other witnesses testified to details of the fire and the extent of damage. We describe that testimony only briefly because the details are not directly relevant to the issues on appeal. The first officer to arrive after the fire had been extinguished, Sergeant Bruce Maahs, testified that he "could smell the odor of some type of . . . gasoline or turpentine" on the heavy damaged carpet located just inside the back door. He and an arson investigator, Sergeant David Polk, found a "pour pattern," evidencing the presence of an accelerant on the floor near the back door. A gasoline can, which Land identified as his, was found approximately fifty to seventy-five yards from the rear of the residence without a cap on it.

Defendant's father Thomas Strader testified that he saw defendant working on the carburetor of his car from 9:00 a.m. to 11:00 a.m. the morning of June 2, 2002, adding that some gasoline or oil was likely to spill on one's clothing while working on a carburetor. Defendant's sister Colleen also testified that she observed her brother working on a car when she arrived at her parents' house around 11:00 a.m. Defendant's sister and father both acknowledged on cross-examination that nothing in their witness statements provided to the State before trial made any mention of defendant working on a car that morning. Strader also testified that his son was in his presence from the time he arrived home after moving furniture around 11:40 p.m. until he was arrested at 1:40 a.m. Strader denied having told Patrolman Gibison, when Gibison arrived to arrest his son the night of fire, that he had not seen his son at all that night.

II.

Defendant argues in Point V that the testimony from Officer Martin describing Conklin's report of defendant's June 1, 2002 threat against Valerie constitutes inadmissible hearsay, the admission of which deprived him of his right to a fair trial. Defendant did not object to the testimony, and therefore, defendant must show that its admission constituted plain error, an error "clearly capable of producing an unjust result." R. 2:10-2. The error must be "sufficient to raise a reasonable doubt as to whether [it] led the jury to a result that it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).

Hearsay testimony "is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." N.J.R.E. 801(c). "[I]f evidence is not offered for the truth of the matter asserted, the evidence is not hearsay and no exception to the hearsay rule is necessary to introduce that evidence at trial." State v. Long, 173 N.J. 138, 152 (2002) (citing State v. Chavies, 345 N.J. Super. 254, 274 (App. Div. 2001)). If the testimony constitutes hearsay, it is admissible only pursuant to one of several enumerated exceptions. N.J.R.E. 802.

Defendant did not object at trial; therefore, the State had no opportunity to specify whether Martin's testimony describing what she had been told by Conklin was offered for its truth, and if so, what hearsay exception would have applied, nor did the State have the opportunity to argue that the evidence was not offered for its truth. The State has failed to address those arguments on appeal.

We are not prepared to disagree with defendant's argument that the evidence was offered for its truth. Count six of the indictment required the jury to determine whether the threat to commit a crime of violence on June 1, 2002, constituted a terroristic threat. Thus, the very third-party threat that Officer Martin described in her hearsay testimony was the identical subject matter that the jury had to consider in connection with its deliberations on count seven, alleging a terroristic threat. Stated differently, the jury was required to determine whether or not such a threat was made, and accordingly, without any limiting instruction, the jury could have accepted the testimony as evidence supporting the allegation that defendant made such a threat. Conklin himself never testified, and consequently, defendant was denied the opportunity to cross-examine the person the State claimed actually heard the alleged threat.

When called upon to determine whether a trial error is of such magnitude as to deny defendant a fair trial, "we necessarily look to the significance of the trial errors in light of the evidence presented to the jury." State v. Blakney, 189 N.J. 88, 96-97 (2006). If a trial error is "substantial," it is "more likely to tip the scales and affect the outcome in a close case." Id. at 97. Conversely, "'if the error does not deflect the jury from a fair consideration of the competent evidence of record and from reaching a verdict of guilt which is supported overwhelmingly by properly admitted evidence, the conviction should not be impugned.'" Ibid. (quoting State v. Simon, 79 N.J. 191, 207 (1979)).

The inculpatory evidence here was quite strong. The State presented testimony describing defendant's threat to burn the house down made to Gannon the day before the fire, describing defendant's phone call to Valerie the night of the fire apologizing for what he had done, demonstrating the presence of gasoline on defendant's boots and a match between the treads of defendant's boots and a shoeprint left in the soil near the shed where the gas can was kept, and describing defendant's knowledge that the doors of the house were left unlocked and that gasoline was kept in the shed. The State also presented the evidence of the numerous prior bad acts that we have described.

Despite the considerable quantum of inculpatory evidence, we nonetheless agree with defendant that the "devastating impact such testimony had upon the defense cannot be understated." The only threat Valerie described involved defendant's statements on June 1, 2002, threatening to beat her up and asking her if she wanted another "January incident." Officer Martin's hearsay testimony was much more damaging because it alleged that defendant, among other things, threatened to kill Valerie and Emily. Defendant was charged in the indictment with attempted murder for setting the fire a mere two days after the third-party threat was allegedly uttered to Conklin. We recognize that the proofs showed defendant was aware Valerie was not home at the time the fire was set, but we nonetheless conclude that once the jury heard the testimony of the third-party threat, the jury could have concluded that defendant was a violent and dangerous individual who wanted to kill his former girlfriend, and that such person was likely to have committed the crime charged.

In light of the damaging nature of this hearsay testimony, its admission in conjunction with the error raised in Point VII, which we discuss below, was clearly capable of producing an unjust result, therefore requiring reversal. R. 2:10-2; State v. Reddish, 181 N.J. 553, 615 (2004) (holding that the cumulative effect of several errors, which by themselves might be harmless, can warrant reversal).

III.

Defendant argues in Point VII that the testimony elicited

by the State from Valerie that she believed defendant was guilty, constitutes plain error requiring reversal. We agree.

During her direct testimony, Valerie described defendant's statement during his phone call from the jail that "they ain't got s--t on [him]." She was asked by the assistant prosecutor, "what did you take him to be meaning?" After defendant's objection was overruled, Valerie expressed her conclusion "[t]hat he did it." Our Supreme Court has held that a police officer is not entitled to offer an opinion regarding a defendant's guilt, State v. Frisby, 174 N.J. 583, 593-94 (2002), and we are not prepared to say that such prohibition should be limited to police officers. As the Court observed in Frisby:

"We go to extraordinary lengths . . . to preserve the integrity and neutrality of jury deliberations, to avoid inadvertently encouraging a jury prematurely to think of a defendant as guilty, to assure the complete opportunity of the jury alone to determine guilt, to prevent the court or the State from expressing an opinion of defendant's guilt, and to require the jury to determine guilt under proper charges no matter how obvious guilt may be. A failure to abide by and honor these strictures fatally weakens the role of the jury, depriving a defendant of the right to trial by jury."

[Id. at 594. (quoting State v. Hightower, 120 N.J. 378, 427-28 (1990), appeal after remand at, remanded by, 146 N.J. 239 (1996) (Handler, J., concurring in part and dissenting in part).]

Here, the trial court overruled the objection by relying on N.J.R.E. 803(c)(3), which permits the admission of hearsay evidence describing a declarant's then-existing state of mind or emotion. It is clear from the language of the rule, that it is the out-of-court declarant's state of mind, not the in-court witness's, that is relevant. The trial court improperly applied N.J.R.E. 803(c)(3) to Valerie's testimony expressing her opinion about defendant's guilt because the rule only relates to the out-of-court declarant's state of mind, not hers. Here, the rule was utilized to allow testimony of the in-court witness's state of mind. By permitting Valerie to interpret to the jury what she believed defendant meant and by permitting her to express an opinion that she thought "he did it," the trial court permitted Valerie to provide an opinion of defendant's guilt, contrary to Frisby. Id. at 593-94.

In light of our determination that the erroneous admission of the Conklin hearsay and of Valerie's opinion of defendant's guilt warrant reversal, we need not determine whether any of defendant's other claims constitute error. We address them, nonetheless, as guidance to the court and the parties during retrial.

IV.

In Point I, defendant argues that the trial court erred by failing to sever counts five and six, which charged violations of the domestic violence restraining order. Relying on State v. Chenique-Puey, 145 N.J. 334, 343 (1996), defendant contends that he was entitled to a severance because he was "charged with both contempt from violating a restraining order as well as underlying offenses constituting a violation of that order," and the jury "could interpret the [domestic violence] order as a 'judicial imprimatur' on the victim's testimony." He further asserts that, at a minimum, "the trial court should have addressed this matter with defense counsel, specifically inquiring as to whether [defendant] desired to proceed with all charges tried at the same time." He argues that had he been specifically informed by the court of the prejudicial impact such a joint trial would have had upon his defense, he undoubtedly would have requested a severance since to do otherwise would have been to "irreparably prejudice [his ability] . . . to obtain [] a fair trial."

Chenique-Puey requires a court to sever the trial of the counts alleging a violation of a domestic violence restraining order from the trial of the counts alleging a substantive criminal offense where the underlying crime and the contempt pertain to the same incident. Ibid. The Court held that if a sequential trial on the contempt charge is not held, a defendant will be prejudiced by the jury's knowledge that a court believed the victim's account of his past violence sufficiently to have entered a restraining order against him. Ibid.

The Court in Chenique-Puey also recognized that in determining whether joinder is prejudicial, the critical inquiry is "'whether, assuming the charges were tried separately, evidence of the offenses sought to be severed would be admissible under [N.J.R.E. 404(b)] in the trial of the remaining charges.'" Id. at 341 (quoting State v. Pitts, 116 N.J. 580, 601-02 (1989)). Here, the counts that charged the violation of a restraining order pertained to defendant's June 1, 2002 telephone call threatening her with another "January incident" and his June 3 telephone call from jail after the fire. As we discuss infra at pages 29-30, evidence of these two incidents would have been admissible in any event. Therefore, we reject defendant's argument that the failure to sever these two counts was error. In any retrial, the State shall not be barred from presenting evidence of the violation of the restraining order, along with the other substantive counts.

There is, however, merit to defendant's argument in Point V.B. that the jury charge pertaining to counts five and six, the contempt counts, was inadequate. The court's charge to the jury pertained to N.J.S.A. 2C:29-9(a) (purposely or knowingly disobeying a judicial order), rather than N.J.S.A. 2C:29-9(b), which pertains to violations of orders entered under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. In light of our disposition, we need not determine whether such inadequate charge would have constituted reversible error. At the retrial, the court should deliver the model charge pertaining to N.J.S.A. 2C:29-9(b).

V.

There is also merit to defendant's contention in Point IV that the State's repeated presentation of testimony that defendant was incarcerated from the time of his arrest through the time of trial was improper. The improper eliciting of such testimony included the cross-examination of defendant's father and mother, who were both asked to acknowledge that defendant was incarcerated during that entire period. Also improper was Valerie's testimony that defendant was "locked up for what he did to me in January." Although the latter incident was not the subject of any of the counts that were the subject of the trial, this stray remark was unnecessary and also unfairly prejudicial, as was Valerie's testimony that when defendant called her to apologize after the fire, his phone call originated from the jail.

A jury's knowledge that defendant is incarcerated pending trial has the capacity to deprive him of a fair trial. Indeed, "[o]ur Federal and State Constitutions both guarantee defendant the right to a fair trial before an impartial jury and to a determination of guilt or innocence based solely on the evidence introduced at trial, 'and not on grounds of . . . continued custody[] or other circumstances not adduced as proof at trial.'" State v. Russell, 384 N.J. Super. 586, 592 (App. Div. 2006) (quoting State v. Artwell, 177 N.J. 526, 533-34 (2003)). In a similar vein was Patrolman Gibison's testimony that he hid in the bushes and did not knock on the door of defendant's house when he came to arrest him because defendant was "known to flee." Not only was there no probative value to that remark, but it was unfairly prejudicial because it suggested prior contact with police. N.J.R.E. 403. When Valerie testified that defendant called her from the jail the night of the fire apologizing for what he had done, she was shown the jail telephone log and was asked if the time of the phone call on the log corresponded to the time she received defendant's call. The authentication of the jail telephone records provided corroboration that the call was made, but there was no need to specify that the telephone records were provided by the jail. Instead, Valerie could simply have been shown the records and asked if the records reflected a call made to her home on the night in question. Additionally, the document itself should have been sanitized to delete any reference to the jail.

We recognize that the trial court gave the jurors an instruction directing them not to allow defendant's custodial status to interfere with the presumption of innocence. These references to defendant being in jail should not have been permitted in the first place.

VI.

In Points V(A) and V(C), defendant argues that the court's charges to the jury on count one, attempted murder, and count seven, terroristic threats, fail to incorporate a sufficient discussion of the required elements of those offenses. In Point III, defendant contends that the model charge entitled "Proof of Other Crimes, Wrongs or Acts (N.J.R.E. 404(b))" should have been used. In light of our disposition of this appeal, we do not address those contentions.

VII.

Defendant argues in Point II that the trial court abused its discretion in admitting evidence of prior bad acts defendant allegedly committed. In particular, defendant argues that because the incidents in question did not in fact establish motive, their admission ran afoul of the provisions of N.J.R.E. 404(b) and failed to satisfy the four prongs of the test articulated by the Court in State v. Cofield, 127 N.J. 328, 338 (1992). Specifically, defendant argues that "none of the five incidents in question satisfied all prongs of the Cofield standard to warrant their admissibility at trial."

The State responds that the trial court appropriately conducted N.J.R.E. 104(a) hearings outside the presence of the jury and did not abuse its discretion in permitting testimony about each of the prior bad acts.

N.J.R.E. 404(b) generally prohibits the use of "other crimes, wrongs or acts . . . to prove the disposition of a person in order to show that such person acted in conformity therewith." Such evidence may, however, "be admitted for other purposes, such as proof of motive . . . when such matters are relevant to a material issue in dispute." Ibid. Significantly, in criminal prosecutions, "New Jersey courts generally admit a wider range of evidence when the motive or intent of the accused is material." State v. Covell, 157 N.J. 554, 565 (1999) (citing State v. Rogers, 19 N.J. 218, 228 (1955)).

In Cofield, supra, the Supreme Court established a four-part test to determine admissibility of other-crime evidence as a safeguard against the danger that such evidence may lead a jury to convict a person simply because of his propensity to commit crimes. 127 N.J. at 338. The Cofield test requires evidence of other crimes or bad conduct to meet the following criteria in order to be admissible:

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.

[Ibid.]

The judgment of the trial court on the discretionary decision to admit other-crime evidence is entitled to deference unless defendant is able to show "an abuse of discretion" or "clear error of judgment." State v. Brown, 170 N.J. 138, 147 (2001). The appellate court should not "substitute its own judgment for that of the trial court, unless 'the trial court's ruling was so wide of the mark that a manifest denial of justice resulted.'" Ibid. (quoting State v. Marrero, 148 N.J. 469, 484 (1997)).

Preliminarily, we note that some of the incidents characterized as 404(b) evidence need not be analyzed under either N.J.R.E. 404(b) or Cofield, supra, because they qualify as statements or admissions by a defendant and are admissible under N.J.R.E 803(b), which authorizes admission of a statement by a defendant when it is "offered against" him. Accordingly, defendant's statements to Gannon on June 1 that he would seek revenge for what Gannon's family had done to him and that Nicholas was "going to go bye-byes" were admissible under N.J.R.E. 803(b) and need not be analyzed under either N.J.R.E. 404(b) or Cofield. The same is true of defendant's threat to Valerie of a "another January incident" after he learned that she had driven his male cousin home from a bar on June 1, 2002.

As to the tire-slashing incident of July 2001, we conclude that the admission of that testimony was too remote to satisfy the Cofield requirement that the incident be "reasonably close in time to the offense charged." 127 N.J. at 338. The tire-slashing incident was not reasonably close in time as it occurred eleven months before the fire, and therefore, its admission was error.

Ordinarily, we would reach the same conclusion concerning defendant's January 8, 2002 assault on Valerie after he saw the messages on her cell phone; however, because such testimony would have been admissible in any event to help the jury understand and analyze the threat defendant made to Valerie on June 1 about a "another January incident," we do not conclude that its admission constituted a mistaken exercise of the judge's discretion.

VIII.

As to Point X, we agree with defendant that the prosecutor's comments in summation denigrating his attorney for a portion of defense counsel's closing argument ran afoul of our holding in State v. Marquez, 277 N.J. Super. 162, 172-73 (App. Div. 1994), certif. denied, 141 N.J. 99 (1995). Such comment should not be repeated during the retrial.

Our disposition of this appeal renders unnecessary any consideration of defendant's sentencing arguments. As to Point XI, a factual basis was elicited for defendant's guilty plea to the escape charge contained in the accusation. Defendant's argument to the contrary lacks merit, and his conviction on Accusation No. 04-05-0035 is therefore affirmed.

Reversed and remanded for a new trial on Indictment No. 02-11-0547.

 

Father and son share the same name. All references to Land pertain to Land, Sr., unless otherwise specified. To differentiate between Valerie Land and her father, we refer to her by her first name.

During the N.J.R.E. 104(a) hearing, defendant stipulated that the restraining order had been entered and had indeed been served on him.

We do not view the Court's recent decision in State v. Williams, ___ N.J. ___ (2007)(slip op.) as requiring a different standard of review.

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A-4670-04T4

May 4, 2007