New Jersey v. Prall

Annotate this Case

The Appellate Division reversed defendant Tormu Prall’s conviction, finding that: (1) his prior threat to kill his girlfriend, Jessie Harley, was admitted in error and without a limiting instruction; (2) the State improperly utilized prior bad act evidence in closing; and (3) statements by defendant’s brother John Prall to John’s girlfriend Kimberly Meadows were inadmissible hearsay and did not qualify as dying declarations or excited utterances. Defendant was convicted for the arson murder of his brother. The New Jersey Supreme Court granted the State’s petition for certification and reversed the Appellate Division and reinstated defendant’s convictions. The Supreme Court agreed with the appellate panel’s legal conclusions that the trial court erred by allowing evidence that defendant threatened to burn down Jessie’s homes and by admitting John’s hearsay statements to Kimberly that defendant was responsible for the arson. However, the Court found the errors were not capable of producing an unjust result because of the overwhelming weight and quality of the evidence against defendant.

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)

State v. Tormu E. Prall (A-28-16) (078169)

Argued October 23, 2017 -- Decided January 31, 2018

SOLOMON, J., writing for the Court.

The Court considers evidentiary rulings from the trial of defendant Tormu Prall for the arson murder of his
brother, John Prall (John), and the attempted murder of John’s girlfriend, Kimberly Meadows (Kimberly).

John moved into his late mother’s house in Trenton (the Trenton home), where defendant also lived. John
and defendant argued several times about bills. Having left the Trenton home after an argument, defendant asked
his girlfriend, Jessie Hartley (Jessie), to return him to the Trenton home. Jessie did so and, while waiting in the car,
heard yelling from inside. Defendant then returned to the car “with a gas can in his hand” and said, “I’m going to
set the mo**erfu**er on fire. Would you take me to the gas station so I can get some gas?” Jessie declined and,
while driving defendant to her house, defendant yelled, “f**k him, I’m going to kill him.” At Jessie’s house,
defendant stated that “Cain killed Abel and [I’m] going to kill [my] brother.” Two days later, defendant returned to
Jessie’s house in the afternoon and told her that he had just come from town, where he had argued again with his
brother and, in front of many people, said he was going to kill him. Defendant was wearing a yellow T-shirt.

Kimberly testified that she and John fell asleep that night. An unknown amount of time went by before she
“started feeling something . . . hot on [her] right side.” She asked John, “[W]hy do you feel so hot?” She then rolled
over to find John on fire from his waist up. Kimberly noticed that her own legs were also on fire. When Kimberly
awakened John, he began “hollering and screaming saying oh, my God. My Brother, my brother.” Kimberly and
John were able to exit the Trenton home. An ambulance transported them to a hospital. John died four days later.

During the search of the Trenton home, a red gas can was located. At trial, Jessie identified the red gas can
as the one defendant had retrieved from the Trenton home two days before the fatal fire. Paul Bethea, a City of
Trenton sanitation worker, testified that he personally witnessed the argument between John and defendant
downtown on the Saturday before the fire. Bethea also testified that he saw defendant standing “staring at the fire.”
Almost a year later, defendant was located in Connecticut. After returning defendant to New Jersey, a detective
noticed and photographed “severe burns to [defendant’s] hands.” Detectives also learned from Jessie and others that
approximately one month before the fire, defendant threatened to burn down both of Jessie’s houses when she
attempted to end their relationship. As a result, Jessie obtained a restraining order against defendant. Jessie also
admitted the following: after the fire, she found the yellow T-shirt defendant wore on the night of the fire; the T-
shirt had dried blood and skin on it; and she discarded the T-shirt out of fear of defendant.

Before trial, the court determined that Jessie’s testimony that defendant threatened to burn down her houses
was inadmissible. At trial, during direct examination by the State, Jessie testified that, two days after the fire, she
found the yellow T-shirt defendant wore the night of the fire with “dry blood and skin on it.” She further testified
that she “threw it in the trash” because officers had not found defendant and “[she] was scared.” Defense counsel
objected to Jessie’s further testimony regarding her fear of defendant, but the court allowed it.

On cross-examination, defense counsel questioned Jessie’s delay in reporting the yellow, blood-stained T-
shirt she had found, and challenged whether she was truly afraid of defendant. At the conclusion of Jessie’s cross-
examination, the prosecutor argued at sidebar that he should be permitted to question Jessie on re-direct examination
regarding the specific threats defendant made to her because defense counsel “opened the door.” The court ruled
that the prosecutor could explore the nature of the threats. On re-direct examination, the prosecutor questioned
Jessie about defendant’s threats to kill Jessie. During the State’s summation, the prosecutor repeated defendant’s
threats against Jessie: “I’m going to set your house on fire. . . . That’s how he thinks. That’s how he gets revenge
on people. That’s how he does it. He sets houses on fire.” Those statements did not elicit an objection.

1
During the trial, Kimberly testified—without objection—that when John awoke in flames he shouted
repeatedly, “my brother, my brother.” During a break, the court expressed concern that those statements were
impermissible hearsay. The prosecutor argued that two hearsay exceptions applied—excited utterance under
N.J.R.E. 803(c)(2), and dying declaration under N.J.R.E. 804(b)(2). The court found it was error to admit the
testimony but concluded that an appropriate instruction would cure the error. The curative instruction was given
twelve days later, immediately before summations and after the defense presented its only witness. The court
instructed the jury to disregard Kimberly’s testimony about John’s references to defendant and said the following:
“The reason I am instructing you to disregard the testimony is that it is hearsay. I wrestled with that and did
research and so forth. I heard it as did you, but it has no probative value in this case, and it has the potential really to
incite, to inflame, things of that nature, and it should not be used.” The jury returned a guilty verdict on all counts.

The Appellate Division reversed defendant’s convictions, concluding that evidence of “the dangerously
prejudicial fact that defendant had threatened to use the same means for [Jessie’s] demise a month earlier” should
not have been admitted. The panel also noted that the State’s improper use of the evidence in summation
compounded the trial court’s failure to promptly instruct the jurors on how to use the information. The appellate
panel also found that John’s cries blaming defendant for the fire should have been excluded because John would not
have been competent to testify to an opinion not rationally based on his perception. Therefore, Kimberly was not
permitted to do so, either. The State petitioned for certification, which the Court granted.
228 N.J. 501 (2017).

HELD: The court erred by allowing evidence that defendant threatened to burn down his girlfriend’s homes and by
admitting John’s hearsay statements that defendant was responsible for the arson. However, the errors were not capable
of producing an unjust result because of the overwhelming weight and quality of the evidence against defendant.

1. N.J.R.E. 404(b) excludes “evidence of other crimes, wrongs or acts . . . to prove the disposition of a person in order
to show that such person acted in conformity therewith.” To be admissible, such evidence must be relevant to a
material issue, and its probative value must not be outweighed by its apparent prejudice. The “opening the door”
doctrine is a rule of expanded relevancy and authorizes admitting evidence which otherwise would have been irrelevant
or inadmissible in order to respond to (1) admissible evidence that generates an issue, or (2) inadmissible evidence
admitted by the court over objection. Here, defense counsel challenged Jessie’s representation that she feared
defendant. On re-direct examination, however, the prosecutor impermissibly expanded that subject by eliciting
testimony about the specific nature of defendant’s threat and its similarity to what occurred in this case. It was an abuse
of discretion for the trial court to permit Jessie’s testimony that defendant threatened to kill her by burning down her
houses. The error was magnified by the failure to instruct the jury on the limited use of the evidence. (pp. 16-21)

2. The State contends that John’s statements to Kimberly—“my brother, my brother”—made while John was engulfed
in flames, are excited utterances and dying declarations. Nevertheless, they are not allowable as hearsay exceptions
unless they would be admissible if testified to at trial by the declarant. The fire started while John and Kimberly were
asleep, and John did not awaken until he was engulfed in flames. Thus, John’s statements were inadmissible hearsay
because they were not based on actual knowledge. Although the trial court allowed Kimberly to testify about John’s
statements, the court ultimately disallowed the testimony and gave a curative instruction. Here, the curative instruction
was given before summations, twelve days after the improper testimony; it was not given immediately. In giving the
instruction, the trial judge discussed, among other things, the excited utterance hearsay exception and the fact that he
had “wrestled with” the statements’ admissibility and barred them after conducting “research and so forth.” Therefore,
although the judge properly informed the jury of the specific evidence they were to disregard, he did so neither soon
enough nor sufficiently firmly, clearly, and effectively to remedy the improper testimony. (pp. 21-25)

3. To warrant reversal of defendant’s conviction, those errors, singly or collectively, must “raise a reasonable doubt” as
to whether they affected the result reached by the jury. Here, there was overwhelming fact and expert evidence
properly offered against defendant. This is a rare case in which significant errors by the trial court are harmless
because, when evaluated in light of the vast evidence against defendant, those errors were not sufficient to raise a
reasonable doubt as to whether they led the jury to a result it otherwise might not have reached. (pp. 25-27)

The judgment of the Appellate Division is REVERSED, and defendant’s convictions are REINSTATED.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-
VINA, and TIMPONE join in JUSTICE SOLOMON’s opinion.

2
SUPREME COURT OF NEW JERSEY
A-
28 September Term 2016
078169
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
TORMU E. PRALL, a/k/a JUDDS
EMMANUEL, BUTLER JAMES and
PRALL MANUEL,
Defendant-Respondent.

Argued October 23, 2017 – Decided January 31, 2018
On certification to the Superior Court,
Appellate Division.
Jennifer E. Kmieciak, Deputy Attorney
General, argued the cause for appellant
(Christopher S. Porrino, Attorney General,
attorney; Jennifer E. Kmieciak, of counsel
and on the briefs).
Stephen W. Kirsch, Assistant Deputy Public
Defender, argued the cause for respondent
(Joseph E. Krakora, Public Defender,
attorney; Stephen W. Kirsch, of counsel and
on the briefs).

JUSTICE SOLOMON delivered the opinion of the Court.

Defendant Tormu Prall was charged with and convicted of the

arson murder of his brother, John Prall (John), and the

attempted murder of John’s girlfriend, Kimberly Meadows

(Kimberly).

1
The Appellate Division reversed defendant’s conviction

finding that: his prior threat to kill his girlfriend, Jessie

Harley (Jessie), was admitted in error and without a limiting

instruction; the State improperly utilized prior bad act

evidence in closing; and statements by John to Kimberly were

inadmissible hearsay and did not qualify as dying declarations

or excited utterances.

We granted the State’s petition for certification and now

reverse the judgment of the Appellate Division and reinstate

defendant’s convictions. We agree with the appellate panel’s

legal conclusions that the trial court erred by allowing

evidence that defendant threatened to burn down Jessie’s homes

and by admitting John’s hearsay statements to Kimberly that

defendant was responsible for the arson. However, we find the

errors were not capable of producing an unjust result because of

the overwhelming weight and quality of the evidence against

defendant.

We rely upon the trial transcript and the appellate record

for the following facts and procedural history.

John moved into his late mother’s house in Trenton (the

Trenton home), where defendant also lived and where defendant’s

girlfriend, Jessie, stayed four to five times per week. At that

2
time, the utilities were turned off at the Trenton home for

nonpayment; they were restored when John satisfied the

outstanding utility bills.

About two weeks after John moved in with defendant and one

week before the fire, John and defendant argued about

defendant’s failure to contribute to the bills and engaged in a

physical altercation.1 The Friday before the fire, John

prevented Jessie and defendant from entering the Trenton home,

and defendant and John argued again about the bills. Jessie

persuaded defendant to leave with her and stay at her house that

night.

The following morning, Jessie drove defendant back to the

Trenton home. Kimberly was there visiting John. Kimberly

testified that she heard the two argue again about the bills,

and heard defendant tell John, “you food, you food,” before a

physical altercation2 broke out between the brothers.3 During

the argument, Jessie was waiting in the car in front of the

Trenton home. She testified that as defendant exited the home

1 Jessie testified at trial that John “grabbed him and they
began to tussle” and “they was fighting a little bit.”

2 Kimberly testified that she was downstairs when the
altercation began, but stated she heard “a lot of scuffling like
bumping around and stuff like that.”

3 According to Kimberly’s testimony at trial, “food” means
“dead” in street slang.
3
he yelled to John, “you’re going to die, you’re going to die,

you’re going to die.” Jessie then took defendant back to her

house.

That night, at around 7:30 p.m., defendant asked Jessie to

return him to the Trenton home. Jessie did so and, while

waiting in the car, heard yelling from inside. Defendant then

returned to the car “with a gas can in his hand” and said, “I’m

going to set the mo**erfu**er on fire. Would you take me to the

gas station so I can get some gas?” Jessie declined and, while

driving defendant to her house, defendant yelled, “f**k him, I’m

going to kill him.” At Jessie’s house, defendant continued to

talk about John, stating that “Cain killed Abel and [I’m] going

to kill [my] brother.”

Two days later, in the morning, defendant was at Jessie’s

house when she left for work as a school bus driver; defendant

was not there when Jessie completed her route and returned home.

Jessie testified that defendant returned to her house around one

o’clock in the afternoon and told her that he had just come from

town, where he had argued again with his brother and, in front

of many people, said he was going to kill him.

That incident was corroborated by Kimberly, who testified

that John had taken her to a bank in downtown Trenton that

morning and “h[ad] words” there with his brother. Kimberly

heard defendant tell John, “you’s a dead man, you dead, you

4
food, you food” and “you are going to die tonight.” As John and

Kimberly walked away, defendant followed, still trying to argue

and calling John a “dead man.”

Later that same day, Jessie took defendant into town again

and returned to work to complete her afternoon bus route. After

completing her afternoon route, Jessie located defendant in

North Trenton. When she found him, defendant was “still kind of

upset.” Shortly after returning to Jessie’s house, defendant

fell asleep. Jessie then left to pick up her children from a

movie and took them to another house she owned, where she stayed

that evening. When Jessie left defendant, he was wearing a

yellow T-shirt.

Kimberly testified that she and John fell asleep that

night. An unknown amount of time went by before she “started

feeling something . . . hot on [her] right side.” Laying on her

side she asked John, “[W]hy do you feel so hot?” She then

rolled over to find John on fire from his waist up. Kimberly

noticed that her own legs were also on fire. When Kimberly

awakened John, he began “hollering and screaming saying oh, my

God. My Brother, my brother.” Kimberly and John were able to

exit the Trenton home. An ambulance arrived shortly thereafter

and transported them to a hospital. Both were later transferred

to the burn unit at Temple University Hospital. John died four

days later.

5
B.

The investigation of the fire by the Trenton Police

Department and Mercer County Prosecutor’s Office revealed the

following evidence, which was admitted at trial.

During the search of the Trenton home, a trained dog

alerted officers to the presence of ignitable liquids in the

second-floor front bedroom, where John and Kimberly had been

sleeping. A red gas can, a BIC lighter, matches, and a can of

WD-40 oil were located in the second-floor rear bedroom. At

trial, Jessie identified the red gas can as the one defendant

had retrieved from the Trenton home two days before the fatal

fire. A qualified expert in K-9 handling, fire investigation,

and accelerant detection testified at trial that the fire was

incendiary, intentionally set, and fueled by an accelerant. He

further determined that the fire had two points of origin: the

second-floor doorway leading into the front bedroom and the

mattress in the same bedroom.

Paul Bethea, a City of Trenton sanitation worker, testified

that he personally witnessed the argument between John and

defendant in front of the downtown bank on the Saturday before

the fire. Bethea also testified that, on the morning of the

fire, he drove by the scene on his way to work and saw defendant

standing on a nearby corner “staring at the fire.” Bethea

stated that he then went into the work-yard to prepare his truck

6
for the day, which took approximately twenty minutes; after he

left the work-yard, defendant was still “staring at the fire.”

Based on the information gathered during the investigation,

detectives filed charges against defendant and issued a warrant

for his arrest. Almost a year later, defendant was located in

Connecticut. After returning defendant to New Jersey, a

detective noticed and photographed “severe burns to

[defendant’s] hands.” Detectives also learned from Jessie and

others that approximately one month before the fire, defendant

threatened to burn down both of Jessie’s houses when she

attempted to end their relationship. As a result, Jessie

obtained a restraining order against defendant. Jessie also

admitted the following: after the fire, she found the yellow T-

shirt defendant wore on the night of the fire; the T-shirt had

dried blood and skin on it; and she discarded the T-shirt out of

fear of defendant.

An indictment was returned by a Mercer County grand jury

charging defendant with first-degree felony murder,
N.J.S.A.

2C:11-3(a)(3) (count one); first-degree murder,
N.J.S.A. 2C:11-

3(a)(2) (count two); second-degree aggravated arson,
N.J.S.A.

2C:17-1(a)(1) (count three); and first-degree attempted murder,

N.J.S.A. 2C:11-3 and
N.J.S.A. 2C:5-1 (count four).

Before trial, the State sought a preliminary determination

of the admissibility of Jessie’s testimony that defendant

7
threatened to burn down her houses. In response, the court

scheduled a Cofield4 hearing pursuant to N.J.R.E. 404(b) to

address the admissibility of that evidence of prior bad acts.

After the hearing, the court determined that the evidence was

inadmissible because the “apparent prejudice” outweighed any

probative value. The court concluded that “[t]his is exactly

the type of [propensity] evidence that N.J.R.E. 404(b) seeks to

exclude.”

At trial, during direct examination by the State, Jessie

testified that, two days after the fire, she found the yellow T-

shirt defendant wore the night of the fire with “dry blood and

skin on it.” She further testified that she “threw it in the

trash” because officers had not found defendant and “[she] was

scared.” Defense counsel objected to Jessie’s further testimony

regarding her fear of defendant, but the court allowed it,

instructing the prosecutor to ask “[l]eading questions . . . so

we don’t get too far off the chart.” The prosecutor asked

Jessie, “and specifically he threatened to kill you,” drawing

another objection. The court sustained the objection and

instructed the jury to disregard the question.

4 State v. Cofield,
127 N.J. 328, 338 (1992).
8
On cross-examination, defense counsel questioned Jessie’s

delay in reporting the yellow, blood-stained T-shirt she had

found, and challenged whether she was truly afraid of defendant:

Q: Have you reported -- you ever reported to
anyone that you were scared of Mr. Prall?

A: Just when we was in a relationship, yes.
When he threatened me, I reported it to the
police, yes.

Q: But you never filed charges in that case,
correct?

A: No.

Q: You filed a restraining order?

A: Yes, just a restraining order.

Q: That you later dismissed, right?

A: Yes.

Q: But for that one instance, you never
reported to anyone that you were scared of
him, correct?

A: No, I haven’t.

At the conclusion of Jessie’s cross-examination, the

prosecutor argued at sidebar that he should be permitted to

question Jessie on re-direct examination regarding the specific

threats defendant made to her because defense counsel “opened

the door.” Finding a distinction between direct evidence and

rebuttal evidence, the court ruled that the prosecutor could

explore the nature of the threats. On re-direct examination,

9
the prosecutor questioned Jessie about defendant’s threats to

kill Jessie:

Q: He threatened to kill you over the next
few days, did he not?

A: Yes, he did.

Q: He threatened to burn your house down,
both houses in Burlington and the one in
Trenton; did he not?

A: Yes, he did.

Q: He told you all I need is a gallon of gas
to do it? Didn’t he tell you that?

A: Yes.

Q: And didn’t he also call your employer and
told your supervisor he was going to kidnap
you and your school bus and then kill you?

A: Yes.

On re-cross-examination, Jessie testified that she did not

report to law enforcement that she found and discarded the

yellow T-shirt because she was afraid of defendant.

During the State’s summation, the prosecutor repeated

defendant’s threats against Jessie:

Jessie says promise me -- talking to the
defendant -- you won’t do anything to your
brother. Defendant says, “I can’t promise you
that.” Why did Jessie ask him that? Well,
there’s only one explanation. Jessie must
have really thought he was going to do it
because why would she ask him to promise me
you won’t kill your brother? Why would she
say that if she didn’t think -- and she was
there with him -- that he was going to kill
his brother? Now, think about what she’s

10
thinking in her mind. He’s already --
defendant’s already threatened to kill Jessie
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).]

Those statements did not elicit an objection from defense

counsel.

During the trial, Kimberly testified -- without objection -

- that when John awoke in flames he shouted repeatedly, “my

brother, my brother” as he attempted to extinguish the fire and

flee from the Trenton home. During a break, the court expressed

concern that those statements were impermissible hearsay. The

prosecutor argued that two hearsay exceptions applied -- excited

utterance under N.J.R.E. 803(c)(2), and dying declaration under

N.J.R.E. 804(b)(2). Defense counsel did not respond, and the

court reserved its ruling until after both parties had the

opportunity to research the issue.

Ultimately, the court found that it was error to admit the

testimony but concluded that an appropriate instruction would

cure the error. The curative instruction was given to the jury

twelve days later, immediately before summations and after the

11
defense presented its only witness, Dr. Mark Taff, a forensic

pathologist who disputed the origin of scars on defendant’s

hands. The court instructed the jury to disregard Kimberly’s

testimony about John’s references to defendant and said the

following:

The reason I am instructing you to disregard
the testimony is that it is hearsay. I
wrestled with that and did research and so
forth. I heard it as did you, but it has no
probative value in this case, and it has the
potential really to incite, to inflame, things
of that nature, and it should not be used.

. . . .

One has to, therefore, evaluate what is the
basis for the statement, and there are many
exceptions in the law. Excited utterance,
somebody sees something happening and screams.
I see a face in the window and it’s so and so.
And it may have happened under extreme
circumstances. In this case if John Prall had
said, “My brother’s at the window” or
something like that or John Jones is at the
window, that might be acceptable under certain
rules, but that’s not the case . . . .

Before charging the jury, the trial judge placed on the

record a request from defense counsel that he specifically not

“mention again in the charge to the jury to disregard the

testimony of [Kimberly] concerning the alleged statements by

John Prall.” No other jury instructions regarding defendant’s

threats to Jessie or John’s “my brother, my brother” statements

were requested or given.

12
The jury returned a guilty verdict on all counts, and the

court sentenced defendant to an aggregate term of life plus

twenty years in prison -- life for John’s murder, plus twenty

years for defendant’s attempted murder of Kimberly -- with an

eighty-five percent period of parole ineligibility pursuant to

the No Early Release Act,
N.J.S.A. 2C:43-7.2. Defendant

appealed.

The Appellate Division reversed defendant’s convictions,

concluding that evidence of “the dangerously prejudicial fact

that defendant had threatened to use the same means for

[Jessie’s] demise a month earlier” should not have been

admitted. The panel also noted that the State’s improper use of

the evidence in summation compounded the trial court’s failure

to promptly instruct the jurors on how to use the information.

The appellate panel also found, relying on N.J.R.E. 701,

that John’s cries blaming defendant for the fire should have

been excluded because John would not have been competent to

testify to an opinion not rationally based on his perception.

Therefore, Kimberly was not permitted to do so, either.

The State petitioned for certification, which this Court

granted.
228 N.J. 501 (2017).

II.

13
First, the State argues that the trial court “properly

exercised its discretion in concluding that defense counsel’s

cross examination of . . . Jessie . . . opened the door for the

prosecution to elicit testimony regarding defendant’s specific

threats to kill her.” According to the State, the threats

against Jessie were of special significance because she believed

defendant had carried out the same threats against John.

The State also claims that the victim’s statements “my

brother, my brother,” as testified to by Kimberly, were

admissible dying declarations or excited utterances.

Finally, the State contends that, even if the challenged

testimony was admitted in error, it was not reversible error

because “the jury’s verdict is amply supported by overwhelming

evidence in the record.”

Defendant asserts that the prosecutor used evidence of

prior bad acts to show propensity, which is “exactly the type of

evidence that N.J.R.E. 404(b) seeks to exclude.” Defendant

concedes that defense counsel went too far in cross-examining

Jessie on her fear of defendant, but claims that counsel’s

transgression opened the door for re-direct examination only on

the purported death threat, not on its precise nature.

Defendant agrees with the Appellate Division that John’s

hearsay statements -- “my brother, my brother” -- constituted

14
improper lay-witness testimony under N.J.R.E. 701 and claims the

court compounded this error by its delay in issuing a curative

instruction. Defendant also avers that, even if the instruction

was timely, it was tainted by the court’s acknowledgment to the

jury that the question of admissibility was one that the court

had “wrestled with.”

III.

This appeal requires our review of the trial court’s

evidentiary rulings regarding prior bad acts and hearsay. The

trial court’s evidentiary rulings “are reviewed under the abuse

of discretion standard because, from its genesis, the decision

to admit or exclude evidence is one firmly entrusted to the

trial court’s discretion.” Estate of Hanges v. Metro. Prop. &

Cas. Ins. Co.,
202 N.J. 369, 383-84 (2010). As the appellate

panel recognized here, 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)). Said differently, we must be

convinced that “the trial court’s ruling is so wide of the mark

that a manifest denial of justice resulted.” Ibid. (quoting

Brown,
170 N.J. at 147 (internal quotation marks omitted)).

Our review of the evidentiary determinations cannot end our

analysis when we find an abuse of discretion; rather, we must

then determine whether any error found is harmless or requires

15
reversal. The State offered evidence of prior bad acts on a

number of occasions -- by pretrial motion, during Jessie’s

direct and redirect examination, and in summation. On some

occasions the evidence elicited an objection; on others it did

not. Issues regarding the repetition of John’s hearsay

statements “my brother, my brother” were raised sua sponte by

the trial judge. Under those circumstances, we will disregard

any error or omission “unless it is of such a nature as to have

been clearly capable of producing an unjust result.” R. 2:10-2;

see also State v. Macon,
57 N.J. 325, 337-38 (1971).

Accordingly, we must determine whether either claimed “error

[was] 'sufficient to raise a reasonable doubt as to whether [it]

led the jury to a result it otherwise might not have reached.’”

State v. Daniels,
182 N.J. 80, 95 (2004) (second alteration in

original) (quoting Macon,
57 N.J. at 336).

To apply those principles, we review both disputed

evidentiary rulings and then consider their potential impact on

defendant’s convictions.

IV.

We first consider the determination that prior bad acts

evidence was admissible here because defense counsel challenged

Jessie’s purported fear of defendant. We review the

admissibility of defendant’s threats in the context of N.J.R.E.

16
404(b), which excludes “evidence of other crimes, wrongs or acts

. . . to prove the disposition of a person in order to show that

such person acted in conformity therewith.”

Because of the “underlying danger” that a “jury may convict

the defendant because he is a 'bad’ person in general,” State v.

Skinner,
218 N.J. 496, 514 (2014) (quoting State v. Cofield,
127 N.J. 328, 336 (1992)), “to be admissible, such evidence must be

'relevant to a material issue,’ and its probative value 'must

not be outweighed by its apparent prejudice,’” State v. Sanchez-

Medina, ___ N.J. ___, ___ (2018) (slip op. at 17) (quoting

Cofield,
127 N.J. at 338 (factors one and four of multi-factor

test)).5 The mere bolstering of a witness’s credibility does not

satisfy the relevancy element of the Cofield test. Skinner,
218 N.J. at 520; State v. Darby,
174 N.J. 509, 520-21 (2002). Also,

if the evidence withstands a Cofield analysis, before its

admission the trial “court must instruct the jury on the limited

use of the evidence” and “explain precisely the permitted and

prohibited purposes of the evidence.” Cofield,
127 N.J. at 341.

5 There is no dispute that the second element of the Cofield
analysis, requiring that the prior act be “similar in kind and
reasonably close in time to the offense charged,” Cofield,
127 N.J. at 338, is satisfied. Likewise, the clear-and-convincing
element of the Cofield test is not in dispute because the
testimony concerning the threat came directly from the victim of
the threat, whom the trial judge found to be credible.
17
After a Cofield hearing, the trial court here determined

that evidence about defendant’s threats against Jessie was

inadmissible because the “apparent prejudice” outweighed any

probative value. The court concluded that “[t]his is exactly

the type of [propensity] evidence that N.J.R.E. 404(b) seeks to

exclude.” Later, however, the judge found that defense counsel

“opened the door” to evidence of defendant’s threats to burn

down Jessie’s houses.

The “opening the door” doctrine is “a rule of expanded

relevancy and authorizes admitting evidence which otherwise

would have been irrelevant or inadmissible in order to respond

to (1) admissible evidence that generates an issue, or (2)

inadmissible evidence admitted by the court over objection.”

State v. James,
144 N.J. 538, 554 (1996) (emphases omitted). In

other words, it permits “a party to elicit otherwise

inadmissible evidence when the opposing party has made unfair

prejudicial use of related evidence.” Ibid. (citation omitted).

The “doctrine operates to prevent a defendant from successfully

excluding from the prosecution’s case-in-chief inadmissible

evidence and then selectively introducing pieces of this

evidence for the defendant’s own advantage, without allowing the

prosecution to place the evidence in its proper context.” Ibid.

The doctrine is limited, however, by weighing the probative

18
value against the prejudicial nature of the evidence under

N.J.R.E. 403. Ibid.

To the extent that evidence of the threats was intended to

bolster Jessie’s credibility as a witness, we emphasize that

such use of prior bad acts evidence does not satisfy the

relevancy element of the Cofield test. Skinner,
218 N.J. at
520. Furthermore, even if defense counsel did “open the door”

to testimony about defendant’s threat, rendering it relevant,

the probative value of that testimony would nevertheless need to

outweigh its apparent prejudice to be admissible. See James,

144 N.J. at 554 (subjecting “opening the door” argument to

probative/prejudice balancing test).

Here, defense counsel challenged Jessie’s representation

that she feared defendant, which did -- as defendant concedes --

render potential rebuttal evidence relevant. On re-direct

examination, however, the prosecution did not limit itself to

the subject of Jessie’s fear. Rather, the prosecutor

impermissibly expanded that subject by eliciting testimony about

the specific nature of defendant’s threat and its similarity to

what occurred in this case. The prosecutor then fatally

undermined any claim by the State that it was seeking merely to

rebut defense counsel’s cross-examination by improperly arguing

propensity in closing:

19
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.

[(emphases added).]

Defendant correctly argues that the State could have

directed the jury’s attention to defendant’s death threats

without relaying the specific nature of the threats; such

testimony would be admissible to rebut any implication that

Jessie and defendant “were involved in minor domestic squabbles”

only and that she was overstating her fear of him. The specific

nature of the threats, however, is highly prejudicial propensity

evidence without justifying relevance, which N.J.R.E. 404(b)

explicitly prohibits. See, e.g., State v. P.S.,
202 N.J. 232,

259 (2010) (holding evidence of unrelated sex crime tending to

show propensity inadmissible because “unmoored from the

principles informing N.J.R.E. 404(b)”). Essentially, even if

defense counsel “opened the door,” counsel did not open it so

wide as to allow in inadmissible evidence of prior bad acts.

We hold, therefore, that it was a “clear error of judgment”

and an abuse of discretion for the trial court to permit

Jessie’s testimony on redirect examination that defendant

threatened to kill her by burning down her houses. That

evidence was not “relevant to a material issue,” and its

20
probative value was “outweighed by its apparent prejudice.”

Sanchez-Medina, ___ N.J. at ___ (slip op. at 17) (quoting

Cofield,
127 N.J. at 338). The error was magnified by the trial

court’s failure to “instruct the jury on the limited use of the

evidence” before its admission. Cofield,
127 N.J. at 341.

We next consider whether the admission of Kimberly’s

hearsay testimony that, after waking up engulfed in flames, John

hollered “my brother, my brother,” was also error and, if so,

whether the error was remedied by the court’s curative

instruction. In deciding the admissibility of the hearsay

statements, we must review the applicable exceptions to the rule

against hearsay.

To begin, N.J.R.E. 801(c) defines hearsay as “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.” Hearsay is generally inadmissible “except as

provided by [the Rules of Evidence] or by other law.” N.J.R.E.

802. In the present appeal, the State relies on two exceptions

to the hearsay rule to support admissibility -- the excited-

utterance exception and the dying-declaration exception.

N.J.R.E. 803(c)(2) defines an excited utterance as “[a]

statement relating to a startling event or condition made while

21
the declarant was under the stress of excitement caused by the

event or condition and without opportunity to deliberate or

fabricate.” A dying declaration, which is a “[s]tatement under

belief of imminent death,” is also “admissible if it was made

voluntarily and in good faith and while the declarant believed

in the imminence of declarant’s impending death.” N.J.R.E.

804(b)(2). Although there is no controlling New Jersey

authority explaining “belief of imminent death,” the United

States Supreme Court has held that “[d]espair of recovery may

indeed be gathered from the circumstances if the facts support

the inference.” Shepard v. United States,
290 U.S. 96, 100

(1933).

The State contends that John’s statements to Kimberly – “my

brother, my brother” – made while John was engulfed in flames,

are excited utterances and dying declarations. Nevertheless,

they are not allowable as hearsay exceptions unless they would

be admissible if testified to at trial by the declarant. 6

McCormick on Evidence § 18 (2006); see also N.J.R.E. 701;

McCormick at § 272, 313. An excited utterance or dying

declaration may be excluded if the declarant did not have direct

personal knowledge of the statement’s basis. Ibid. Thus, to be

admissible, John’s statements to Kimberly must have been based

upon John’s “firsthand” observations. Ibid.

22
The fire started while John and Kimberly were asleep, and

John did not awaken until he was engulfed in flames. The record

does not contain evidence that John made any observations or had

direct knowledge that defendant started the fire. Thus, whether

offered as dying declarations or excited utterances, John’s

statements, “my brother, my brother,” were inadmissible hearsay

because they were not based on actual knowledge. The statements

should not have been admitted.

Although the trial court allowed Kimberly to testify about

John’s statements blaming his brother for the arson, the court

ultimately disallowed the testimony and gave a curative

instruction. Therefore, we consider whether the trial court’s

curative jury instruction sufficiently mitigated any prejudice

caused by the admission of the hearsay.

When inadmissible evidence is admitted in error by the

trial court, a curative instruction may sometimes be a

sufficient remedy. See State v. Winter,
96 N.J. 640, 646

(1984). An effective curative instruction needs to be “firm,

clear, and accomplished without delay.” State v. Vallejo,
198 N.J. 122, 134 (2009); see also State v. Wakefield,
190 N.J. 397,

452 (2007) (noting trial court issued “immediate curative

instruction” to deal with issues raised by State’s comments

“promptly and effectively”); State v. Papasavvas,
163 N.J. 565,

23
614 (2000) (explaining that State expert’s testimony regarding

defendant’s guilt was improper but that “trial court’s curative

instructions given immediately after [the] statements . . . were

sufficient to remedy [the] improper testimony”); State v.

Harvey,
151 N.J. 117, 203-05 (1997) (concluding that trial

court’s curative instruction was sufficient to mitigate

prejudice to defendant caused by reference to unindicted

suspect’s polygraph results where instruction to disregard

evidence was immediate); Winter,
96 N.J. at 649 (holding

curative instruction sufficient because, “[b]efore defense

counsel even objected, the court struck the offending remark”

and, after brief recess, gave “sharp and complete curative

instruction”); State v. La Porte,
62 N.J. 312, 318 (1973) (“The

trial judge immediately instructed the jury in the strongest

terms to disregard the offending remark.”).

Moreover, in curing potentially prejudicial testimony, a

judge must not confuse a jury by disclosing the court’s own

reasons for denying or admitting evidence, which are extraneous

and potentially suggestive. Cf. State v. Ridout,
299 N.J.

Super. 233, 240-41 (App. Div. 1997) (finding reversible error in

trial judge’s potentially influential statements to jury which

“effectively took that issue out of its hands” and collecting

cases from other jurisdictions finding that trial courts’

references to reasoning behind their evidentiary decisions can

24
be so suggestive as to taint jurors’ consideration of admitted

evidence).

Here, the curative instruction was given before summations,

twelve days after the improper testimony; it was not given

immediately. In giving the instruction, the trial judge

discussed, among other things, the excited utterance hearsay

exception and the fact that he had “wrestled with” the

statements’ admissibility and barred them after conducting

“research and so forth.”

Therefore, although the judge properly informed the jury of

the specific evidence they were to disregard, he did so neither

soon enough nor sufficiently firmly, clearly, and effectively to

“remedy [the] improper testimony.” See Papasavvas,
163 N.J. at
614. We thus find an abuse of discretion in the admission of

the hearsay evidence and a failure to sufficiently remedy that

error via curative instruction.

We take this opportunity to remind our trial courts that

when delivering curative instructions, judges should limit their

comments to the ruling itself and not add commentary that could

cause confusion or dilute the instruction’s effect. Ridout,
299 N.J. Super. at 240.

Having found that the trial court abused its discretion

through the improper admission of both hearsay and prior bad

25
acts evidence and the failure to properly instruct the jury as

to either, we now consider whether those errors were “clearly

capable of producing an unjust result.” R. 2:10-2. We repeat

that, to warrant reversal of defendant’s conviction, those

errors, singly or collectively, must “raise a reasonable doubt”

as to whether they affected the result reached by the jury.

Macon,
57 N.J. at 336. Also, “[t]he error[s] must be evaluated

'in light of the overall strength of the State’s case.’”

Sanchez-Medina, ___ N.J. at ___ (slip op. at 21) (quoting State

v. Galicia,
210 N.J. 364, 388 (2012)).

Here, there was overwhelming fact and expert evidence

properly offered against defendant. On numerous occasions and

before many witnesses, defendant threatened to kill his brother.

On at least one occasion, two days before the fire, defendant

told Jessie he would burn his brother to death. Indeed, on that

occasion, defendant retrieved a gas can from his home and asked

Jessie to take him to fill it. That same gas can was later

recovered from the scene of the fire by investigators and

identified at trial by Jessie. Investigators determined that

the fire originated in the bedroom where John and Kimberly

slept. Jessie also provided testimony that she last saw

defendant in a yellow T-shirt and then found the same shirt

after the arson with dried blood and skin on it. Paul Bethea,

the City of Trenton sanitation worker, testified that he

26
witnessed defendant and John arguing in front of a Trenton bank

and that he saw defendant at the scene of the fire, standing on

the corner “staring at the fire” for a period of at least twenty

minutes. Defendant fled the state after the fire. Nearly a

year later, detectives located defendant and observed burn scars

on his hands.

This is a rare case in which we find significant errors by

the trial court to be harmless because, when evaluated in light

of the vast evidence against defendant, those errors were not

“sufficient to raise a reasonable doubt as to whether [they] led

the jury to a result it otherwise might not have reached.”

Daniels,
182 N.J. at 95 (quoting Macon,
57 N.J. at 336); see

also State v. Marrero,
148 N.J. 469, 497 (1997) (finding

insufficient instruction as to other crimes evidence harmless

because, in “consideration of the “near overwhelming evidence of

guilt,” instruction “did not tip the scales”). Here, there was

overwhelming admissible evidence on which to convict defendant,

and his convictions should therefore not have been disturbed.

VI.

For the reasons set forth above, we reverse the judgment of

the Appellate Division and reinstate defendant’s convictions.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
PATTERSON, FERNANDEZ-VINA, and TIMPONE join in JUSTICE SOLOMON’s
opinion.

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.