STATE OF NEW JERSEY v. VANESSA BROWN

NOT FOR PUBLICATION WITHOUT THE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-Appellant/

Cross-Respondent,

v.

VANESSA BROWN,

Defendant-Respondent/

Cross-Appellant.

____________________________

May 15, 2014

Submitted March 12, 2014 Decided

Before Judges Grall, Waugh and Nugent.

On appeal from Superior Court of New Jersey, Law Division, Morris County, Indictment No. 13-02-0144.

Fredric M. Knapp, Acting Morris County Prosecutor, attorney for appellant/cross-respondent (John McNamara, Jr., Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

Roberts and Saluti, LLC, attorneys for respondent/cross-appellant (Gerald Saluti, Richard M. Roberts, Christopher Balioni and Rudie O. Weatherman, on the brief).

PER CURIAM

Defendant Vanessa Brown awaits trial on charges of aggravated manslaughter, N.J.S.A. 2C:11-4, and vehicular homicide, N.J.S.A. 2C:11-5a. Based on the percentage of alcohol in her blood, which was well above the legal limit, she was also charged with driving while under the influence, N.J.S.A. 39:4-50. By leave granted, the State appeals and defendant cross-appeals different pre-trial evidentiary rulings. On the State's appeal, we affirm but do not preclude reconsideration in light of the evidence presented at trial in conformity with this decision. On defendant's cross-appeal, we affirm.

Defendant had a prior conviction for driving while under the influence. In 2009, she drove with a blood alcohol concentration of .194%, and she pled guilty. The judge ruled that the State could admit that prior conviction at trial for the limited purpose of its relevance to show "her alleged knowledge of dangers of driving while under the influence and whether that knowledge rose to the level of extreme indifference and/or recklessness." Defendant challenges that determination as an improper application of N.J.R.E. 404(b).

The fatal car accident at issue occurred on the afternoon of May 5, 2012. The victim was standing next to a pickup truck parked in the lot of an auto parts store, and defendant drove off the road and struck him. The accident is depicted on a video recording the State secured from the store's surveillance camera. In addition, the State secured a blood-alcohol test indicating a blood alcohol concentration of .133%.

Earlier on the day of the accident, two witnesses saw defendant driving. She drove a car onto a lawn while attempting to turn it around, and, as a consequence of that maneuver, the car bottomed out and the spoiler dropped down. Defendant then drove away with the spoiler dragging on the roadway. The judge ruled that the State could admit that evidence, and defendant does not challenge that determination.

At the scene and while accompanying defendant to the hospital in an ambulance, officers asked defendant what happened. Defendant initially said she did not know. Subsequently, referring to the victim, defendant said: "he hit me, he came out of nowhere"; and he "came out of nowhere." Considering N.J.R.E. 801(b) and N.J.R.E. 403, the judge determined that the State could admit defendant's denial of knowledge but not her statements about the victim's conduct. The State challenges the exclusion, and defendant does not challenge the admission.

A. Standard of review.

Appellate courts disturb rulings on the admission or exclusion of evidence pursuant to N.J.R.E. 403 and N.J.R.E. 404(b) only on a finding of abuse of discretion. State v. Rose, 206 N.J. 141, 157, 177-78 (2011); State v. Barden, 195 N.J. 375, 391 (2008) (stating "a clear error of judgment" is required to find an abuse of discretion in "the trial court's conclusion with respect to that balancing" of probative and prejudicial value of evidence admitted pursuant to N.J.R.E. 404(b)). Applying that standard, a reviewing court must uphold a judge's determination unless it is "'so wide of the mark' as to result in a manifest injustice." State v. J.D., 211 N.J. 344, 354 (2012) (quoting State v. Brown, 170 N.J. 138, 147 (2001)). Of course, if a judge has misapplied the law to the evidence in question, then such deference is not given. Rose, supra, 206 N.J. at 157-58; Barden, supra, 195 N.J. at 391.

B. The evidence rules at issue.

The evidence rules implicated by the State's request to admit the evidence at issue here are N.J.R.E. 401, 402, 403 and 404(b).

Evidence "having a tendency in reason to prove or disprove any fact of consequence to the determination" is relevant. N.J.R.E. 401. And relevant evidence is admissible unless another evidence rule provides for its exclusion. N.J.R.E. 402. The arguments on this appeal focus on two rules of exclusion. Pursuant to N.J.R.E. 403, where the probative value of relevant evidence "is substantially outweighed" by, among other things, a risk of "undue prejudice" or "needless presentation of cumulative evidence," it "may be excluded." In contrast, N.J.R.E. 404(b) requires exclusion of "evidence of other crimes, wrongs, or acts . . . to prove the disposition of a person in order to show that such person acted in conformity" with that disposition. That use of prior wrongful conduct is absolutely prohibited, because of the "underlying danger . . . that the jury may convict the defendant because he is a bad person in general." Rose, supra, 206 N.J. at 159 (quoting State v. Cofield, 127 N.J. 328, 336 (1992)).

Although N.J.R.E. 404(b)'s prohibition on use of evidence to show propensity is absolute, the rule permits use of bad acts evidence "for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute." N.J.R.E. 404(b). The rule's list of permissible uses of past conduct is illustrative, not exhaustive. Rose, supra, 206 N.J. at 181.

As the Court explained in Rose, where prior bad acts evidence is relevant to and offered for a limited, permissible purpose, the balance of probative and prejudicial value is considered under a "more exacting" standard than the one stated in Rule 403. 206 N.J. at 160-61. Under the fourth and final prong of the test for admissibility of evidence subject to Rule 404(b) provided in Cofield and explained in Barden, the question is "whether the probative worth of the evidence is outweighed by its potential for undue prejudice," Rose, supra, 206 N.J. at 160 (quoting Barden, supra, 195 N.J. at 389) (citation and internal quotations omitted) (emphasis added). Under Rule 403, the question is whether the "probative value is substantially outweighed by the risk of undue prejudice." 206 N.J. at 161 (emphasis in original).

Moreover, the fourth prong of the Cofield test requires consideration of less prejudicial evidence. Where evidence having a tendency to prove a fact of consequence has the capacity to create that inference of criminal propensity prohibited by Rule 404(b), the State's access to less prejudicial evidence proving the same fact favors exclusion under the fourth prong. See Rose, supra, 206 N.J. at 161; State v. P.S., 202 N.J. 232, 256 (2010); Barden, supra, 195 N.J. at 392.

Where relevant evidence that is prejudicial is at issue, consideration of other available and less inflammatory evidence or stipulations to the existence of the fact of consequence is pertinent to Rule 403's balancing test. See, e.g., State v. L.P., 352 N.J. Super. 369, 377-78 (App. Div.) (noting the absence of a stipulation that would have diminished the probative value of the photographs defendant deemed prejudicial), certif. denied, 174 N.J. 546 (2002). Discussing Rule 403, the Court has explained:

Probative value is enhanced by the absence of any other evidence that can prove the same point. See State v. Stevens, [ 115 N.J. 289, 303 (1989)]. Conversely, relevant evidence lo[s]ses some of its probative value if there is other non-inflammatory evidence available to prove that point. See State v. Johnson, 120 N.J. 263, 298 (1990); State v. Davis, 116 N.J. 341, 366 (1989).

[State v. Covell, 157 N.J. 554, 569 (1999).]

We address the challenge raised by the State and then the challenge raised by defendant.

C. The State's challenge to the exclusion of defendant's

statements about the victim.

The State challenges the judge's exclusion of the statements defendant made about the victim's role in the accident that the victim hit her and that he came from nowhere. In the trial court and here, the State's claim is that defendant's statements about the victim have a tendency to prove two points of consequence: recklessness, which is an element of aggravated manslaughter and of vehicular homicide, N.J.S.A. 2C:11-4a(1) and N.J.S.A. 2C:11-5a; and defendant's consciousness of guilt.

With respect to recklessness, the State submits that these statements tend to show that defendant's perception was impaired and that her conduct, driving in that condition, involved a gross deviation from the standard of care a reasonable person would exercise. See N.J.S.A. 2C:2-2b(3) (defining recklessness). The defense contends that any probative value those statements have is substantially outweighed by their capacity to unfairly prejudice defendant specifically, an inflammatory capacity suggesting defendant was "trying to deflect blame to an innocent victim."

The judge concluded that defendant's statements about the victim have "no probative value" and, for the reason urged by defendant, had a "substantial likelihood of being highly prejudicial." Accordingly, he excluded them pursuant to N.J.R.E. 403.

In an effort to establish legal error, the State contends that the judge overlooked the probative value on the question of recklessness. In our view, the State's suggestion that the judge failed to appreciate the probative value is based on an unjustifiably narrow reading of the written opinion on this point.

The judge said that defendant's statements about the victim's action have "no probative value" on defendant's recklessness, but did so noting that defendant would concede and stipulate that the victim was not responsible for the accident in any way and that the State would be permitted to use defendant's admission of having no knowledge about what happened to demonstrate her condition and inattentiveness. In short, we take the judge to have concluded that these statements about the victim had no additional probative value on the question of recklessness. Viewing the judge's reasoning on this point as a whole, we discern no legal error warranting plenary review. Rose, supra, 206 N.J. at 158.

The State's reliance on State v. Worrick, 131 P.3d 97, 100-01 (N.M. Ct. App. 2006), cert. denied, 166 P.3d 1090 (2007) is misplaced. This defendant's concession that her victim had no responsibility for the accident and her admission to not knowing what happened distinguish the cases. To the extent defendant's explanation, when viewed in light of the video recording of the accident, would tend to show she must have been grossly inattentive, her explanation adds little of value to proof of recklessness beyond her saying she did not know what happened.

In sum, the judge's determination that any probative value of defendant's reported perception of the victim's contributory conduct is substantially outweighed by its inflammatory and prejudicial capacity to portray defendant as a person blaming her innocent victim is not clear error amounting to an abuse of discretion. The judge properly assessed the probative value in light of the State's access to less inflammatory evidence tending to prove recklessness, including the video recording from the surveillance camera, defendant's statement about not knowing what happened and her offer to stipulate that the victim bore no responsibility. Covell, supra, 157 N.J. at 569. We cannot conclude that the judge abused his discretion in striking the balance as he did.

The State also argues that defendant's statement about the victim coming out of nowhere and hitting her car is a misrepresentation that is admissible to demonstrateconsciousness of guilt. Thejudge did not address this argument, but the point lacks merit.

"Evidence of conduct of an accused subsequent to the offense charged is admissible only if probative of guilt."

State v. Mann, 132 N.J. 410, 418 (1993). Thus, a defendant's "[d]eclarations subsequent to the commission of the crime which indicate consciousness of guilt, or are inconsistent with innocence or tend to establish intent are relevant and admissible." State v. Rechtschaffer, 70 N.J. 395, 413 (1976).

In State v. Mann, 132 N.J. 410 (1993), the Court discussed the foundation necessary for a judge to admit evidence as probative of consciousness of guilt. The State's evidence of consciousness of guilt was the defendant's attempted suicide. Id. at 415-16. Looking to decisions involving evidence of flight as consciousness of guilt, the Court noted that they "reaffirm the imperative that 'each link in the chain of inferences leading to that conclusion is sturdily supported.'" Id. at 419 (quoting United States v. Beahm, 664 F.2d 414, 420 (4th Cir. 1981) (reversing in the absence of adequate evidence to support the inference)).

In this case, the State's admission of defendant's description to establish consciousness of guilt requires sturdy support for several links in the chain. Because an officer asked defendant for an explanation, her providing an answer that can be viewed as exculpatory is not probative of an effort to avoid accusation. Her providing a false or misleading answer, however, would be.

The necessary links in the chain to an inference of consciousness of guilt based on knowing misrepresentation would be that: defendant was in a location where she could see the victim standing next to the pick-up truck before she hit him; she was sufficiently aware to see him before, from her perspective, he appeared out of nowhere; and that she was aware that she was responsible for hitting him, as opposed to thinking that he walked into her moving car. Without that support, the judge would have erred if he concluded that the statements were probative of consciousness of guilt.

On this record, we cannot conclude that the judge abused his discretion. The transcript of the proceeding indicates that the State did not play the video recording at the hearing. Consequently, the essential foundation was not established at the preliminary hearing as required by Mann. 132 N.J. at 425. Our decision should not be understood to preclude the trial judge from reconsidering this interlocutory ruling if the State renews its request to admit defendant's statements about the victim's role as probative of consciousness of guilt on an adequate record. Of course, in the event that the evidence is admitted for that limited purpose, the judge will have to draft an appropriate limiting instruction honed to the facts and pointing out the essential links in the chain of inferences. Id. at 423.

D. Defendant's objection to the admission of her prior

conviction for driving while under the influence.

Given our standard of review, the question is not whether we agree with the judge's decision but whether the judge abused his discretion. The judge's written statement of reasons includes a reasoned explanation supported with an analysis of the facts, references to decisional law in other jurisdictions and the Court's reasoning in State v. Bakka, 176 N.J. 533 (2003); see also State v. Soney, 177 N.J. Super. 47, 59-60 (App. Div. 1980), certif. denied, 87 N.J. 313 (1981). Moreover, the judge's determination is based on a proper consideration of the relative probative and prejudicial value under the more exacting standard applicable to 404(b) evidence. In short, the determination is not arbitrary or clearly erroneous, and we affirm substantially for the reasons stated in the judge's written statement dated September 10, 2013.

Affirmed and remanded so that proceedings on the indictment can be completed.