STATE OF NEW JERSEY v. DURON J. WILLIAMS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-02604-12T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DURON J. WILLIAMS,

Defendant-Appellant.

__________________________________________________

September 25, 2014

Submitted September 9, 2014 Decided

Before Judges Koblitz and Haas.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 11-05-1272.

Joseph E. Krakora, Public Defender, attorney for appellant (Jason A. Coe, Assistant Deputy Public Defender, of counsel and on the brief).

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Natalie A. Schmid Drummond, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

After a jury was unable to reach a unanimous verdict, the second jury convicted defendant Duron J. Williams of second-degree reckless manslaughter, N.J.S.A. 2C:11-4(b); second-degree unlawful possession of a gun, N.J.S.A. 2C:39-5(b); and second-degree certain persons not to have a weapon, N.J.S.A. 2C:39-7(b). The jury acquitted defendant of murder, N.J.S.A. 2C:11-3(a)(1) and (2), and second-degree possession of a gun for an unlawful purpose, N.J.S.A. 2C:39-4(a). Defendant was sentenced to an aggregate term of eighteen years in prison. The judge sentenced defendant to a consecutive term on the certain persons crime. We reverse, because the trial judge's determination to admit evidence of defendant's possession of a gun on two prior occasions represents a clear error in judgment pursuant to N.J.R.E. 404(b) (Rule 404(b)).

The State's theory at trial was that defendant and his cousin, Jamal Brown, approached the victim, Brandon Robinson, on the street. Defendant had a gun, which discharged, hitting the victim in the right hip. Defendant and Brown fled and were driven away by Ms. Burns, defendant's girlfriend. Two eyewitnesses testified at trial. Their testimony varied somewhat, as one said defendant approached the victim first and the two men struggled before the gun discharged. The other eyewitness said Brown "mugged" the victim before defendant shot him. One said the gun was silver and the other that it was black. No gun or forensic evidence was introduced into evidence. The State theorized that defendant shot the victim because the victim had insulted Brown's girlfriend.

Brown testified at defendant's trial, indicating neither of them had a gun and that Brown was not angry, but merely approached the victim to find out what was happening between the victim and Brown's girlfriend. Brown testified that when he and defendant approached the victim another party shot the victim. The prosecutor argued to the jury that Brown was lying and that in fact he did have a grudge against the victim.

The State called another witness, Hammond, and the following colloquy ensued

PROSECUTOR: Do you know if the defendant's cousin [Brown] was having problems with anyone?

HAMMOND: Yes.

PROSECUTOR: What do you know about that?

HAMMOND: Umm, it was a confrontation.

DEFENDANT: Objection, foundation.

After the defendant objected to the lack of foundation, the prosecutor was allowed to develop a basis for the question and asked

PROSECUTOR: How did you learn of that information? Were you present for . . . any problems that the defendant's cousin was having with anyone on Fourth Street?

HAMMOND: No.

The prosecutor then proceeded to leave this area of questioning. This truncated testimony was the only evidence of defendant's motive other than Brown's denial that animosity existed between the victim and Brown.

Defendant raises the following issues on appeal

POINT I: [] HAMMOND'S TESTIMONY AS TO WILLIAMS' ALLEGED MOTIVE WAS IMPROPERLY ADMITTED BECAUSE THE STATE FAILED TO ESTABLISH A FOUNDATION.

POINT II: EVIDENCE OF DEFENDANT'S PRIOR BAD ACTS SHOULD NOT HAVE BEEN ADMITTED BECAUSE THEY DID NOT RELATE TO A FACTUAL ISSUE THAT WAS ACTUALLY DISPUTED AT TRIAL.

POINT III: THE TRIAL COURT IMPOSED CONSECUTIVE SENTENCES WITHOUT UNDERTAKING ANY ANALYSIS UNDER STATE V. YARBOUGH. ADDITIONALLY, THE FACTORS SET FORTH IN YARBOUGH COUNSEL AGAINST THE IMPOSITION OF CONSECUTIVE SENTENCES.

As our Supreme Court said in State v. Rose, 206 N.J. 141, 157-58 (2011)

A trial court s ruling on the admissibility of evidence is reviewed on appeal for abuse of discretion. . . . When specifically reviewing the sensitive admissibility rulings made pursuant to the weighing process demanded by Rule 404(b), which deals with evidence of other crimes or bad acts, we have further said that only where there is a clear error of judgment should the trial court s conclusion with respect to that balancing test be disturbed.

[citations and internal quotation marks omitted.]

After a N.J.R.E. 104 (Rule 104) pretrial hearing as to admissibility, the trial judge allowed the State to introduce testimony at trial that approximately a month before the killing, defendant was in possession of a gun. Defendant's girlfriend at the time of the incident testified that she had seen defendant carrying a black gun with a wheel on it. She said they had an argument because he brought the gun into her home where she had children. She said the next morning she saw the same gun again when defendant was joking around threatening a friend with it.

The judge found that defendant's prior possession of a gun was relevant because the pending charges constituted possession of a gun, use of a gun, and murder allegedly committed by the discharge of a gun, characterizing the issue as whether defendant "had access to a weapon."

Our Supreme Court in State v. Skinner, 218 N.J. 496, 514 (2014), stated

It has oft been recognized that the underlying danger of admitting other-crime or bad-act evidence is that the jury may convict the defendant because he is a "bad"person in general. For that reason, any evidence that is in the nature of prior bad acts, wrongs, or, worse, crimes by a defendant is examined cautiously because it has a unique tendency to prejudice a jury. Put simply, a defendant must be convicted on the basis of his acts in connection with the offense for which he is charged. A defendant may not be convicted simply because the jury believes that he is a bad person. Because N.J.R.E. 404(b) guards against the wholly unacceptable prospect that a jury might become prejudiced against a defendant based on earlier reprehensible conduct, the rule is often described as one of exclusion.

[citations and internal quotation marks omitted.]

A four-part test was approved more than twenty years ago to determine whether such evidence should be admitted.

Those case-by-case analyses may be distilled into a rule of general application in order to avoid the over-use of extrinsic evidence of other crimes or wrongs

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.

[State v. Cofield, 127 N.J. 328, 338 (1992) (quoting Abraham P. Ordover, Balancing The Presumptions Of Guilt And Innocence: Rules404(b), 608(b) and 609(a), 38 Emory L.J. 135, 160 (1989) (footnote omitted)).]

Recently our Court expounded on what "relevant to a material issue" means in the first Cofield prong.

The analysis can include all evidentiary circumstances that tend to shed light on a defendant s motive and intent or which tend fairly to explain his actions, even though they may have occurred before the commission of the offense. However, the evidence must relate to a material issue that is in dispute, and the State's need for the evidence is a consideration when weighing relevance under prong one. A court must consider whether the matter was projected by the defense as arguable before trial, raised by the defense at trial, or was one that the defense refused to concede.

[Skinner, supra, 218 N.J. at 515.]

The black gun with a wheel seen by Hammond in defendant's possession a month before the killing was not connected in any way to the gun used to shoot the victim. It had no unusual characteristics tied to the weapon used in the shooting. Defendant was charged with possession of a gun, and certainly the fact that he had a gun a month before could help to persuade the jury that he had a gun on the crime date. However, the use of a prior bad act to prove the later commission of a similar crime is exactly what is not permitted by Rule 404(b). "[E]vidence of other crimes, wrongs or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith." Rule 404(b).

Our Supreme Court in State v. Hamilton, 193 N.J. 255, 267-68 (2008), when discussing the reason for sanitizing convictions introduced to affect the defendant's credibility after the defendant testifies, stated

[T]rial courts nevertheless retain their ability to ameliorate the highly prejudicial effects of certain convictions that are otherwise fair game for the State's impeachment purposes. When a jury hears of a conviction of a crime that is substantially the same or similar to the crime charged, there is great risk that the prior crime will be used by the jury for the forbidden purpose of imputing guilt to the defendant. In that setting, we created Brunson's[1] mandatory sanitization rule that advances the truth-seeking objective of criminal trials. We required sanitization because it greatly benefits the defendant and works only a slight detriment to the State. . . . [T]rial courts must recognize the risk of undue prejudice from prior-conviction evidence. The further point was that courts have the authority to take steps to neutralize the highly prejudicial effect of particular prior-conviction evidence by eliminating reference to the specifics of the earlier crime.

[citations and internal quotation marks omitted.]

Defendant did not testify here and therefore his credibility was not in question. He did not maintain that he had any particularized difficulty in obtaining or handling a gun. The evidence of defendant's prior possession of a gun did not serve to rebut a defense. The prior bad act did not offer "proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident . . . ." Rule 404(b). The State presented two witnesses who saw defendant shoot the victim. Brown testified that defendant was not the shooter. The victim was not killed by an unusual weapon that is hard to obtain, such as a biological agent or an antique sword.

The probative value of defendant's prior possession of a gun is cumulative and greatly outweighed by its prejudice. As our Supreme Court said in State v. Rose, supra, 206 N.J. at 160-61

The fourth prong of the Cofield test is typically considered the most difficult to overcome. Because of the damaging nature of such evidence, the trial court must engage in a careful and pragmatic evaluation of the evidence to determine whether the probative worth of the evidence is outweighed by its potential for undue prejudice. That standard is more exacting than Rule 403, which provides that relevant evidence is admissible unless its probative value is substantially outweighed by the risk of undue prejudice. And, if other less prejudicial evidence may be presented to establish the same issue, the balance in the weighing process will tip in favor of exclusion.

[citations and internal quotation marks omitted.]

We thus reverse defendant's convictions because of the judge's mistaken exercise of discretion in allowing the State to submit evidence of defendant's prior possession of a gun. We find merit as well in defendant's other issues, but discuss them only briefly as defendant will receive a new trial.

The State concedes that allowing Hammond to testify to animosity between defendant and the victim without a foundation for her knowledge was erroneous. The State argues that Hammond's brief comments constitute harmless error. R. 2:10-2; State v. Macon, 57 N.J. 325, 337 (1971). The State also concedes that the judge did not place her reasons for consecutive sentencing on the record as required by State v. Yarbough, 100 N.J. 627, 643 (1985) and State v. Miller, 205 N.J. 109, 129-30 (2011). The State argues that this error is also harmless and does not require resentencing. We need not determine whether or not these errors were harmless in light of our reversal for other reasons.

Reversed.

1 State v. Brunson, 132 N.J. 377 (1993).