On appeal from the Superior Court, Appellate Division.
For reversal and remandment -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern and Stein. For affirmance -- None. The opinion of the Court was delivered by O'Hern, J. Stein, J., Concurring. Justice Stein Concurring in result.
This appeal concerns the admissibility of other-crime evidence under Evidence Rule 55 to prove a fact in issue other than the propensity of a defendant to commit crime. We hold that the trial court did not abuse its discretion in ruling evidence of a subsequent illegal drug incident to be relevant and admissible for establishing defendant's constructive possession of illegal drugs during an earlier incident that is the subject of this prosecution. We find sufficient similarity between the two incidents involving the same location to demonstrate relevance to prove an element of a crime, not a propensity to commit
crime. However, the trial Judge's limiting instruction under Evidence Rule 6 directed the jury's attention to the generalities of Evidence Rule 55 instead of the facts of this case. We therefore reverse the conviction below because we believe that the absence of a more tailored charge had the clear capacity to bring about an unjust result.
During the evening of August 14, 1985, a Newark police detective received a tip from an informant that narcotics were being sold on South 10th Street, outside The Copa Lounge (the Lounge). The detective investigated the area and saw fifteen people approach defendant or his brother as they stood on the sidewalk outside the Lounge. After the persons talked with defendant or his brother and gave them money, they were directed to a car, registered to defendant's mother, parked in a lot across the street from the Lounge. The people were then seen making "hand-to-hand" contact with the car's occupants and leaving the area.
Through the use of an undercover informant who had talked with defendant, given him money, and crossed the street to receive aluminum-foil packets from the car's two occupants, the detective discovered that the aluminum-foil packets contained cocaine. The following morning, on August 15th, Newark police arrested defendant, his brother, and the two men who had been sitting inside the car parked across the street from the Lounge the night before. When the police arrested defendant, he had $236 on his person and his brother had $144.
After arraignment, defendant was admitted to bail and returned to the streets of Newark to pursue his criminal activities. On September 4, 1985, the same detective who had received the earlier information learned that drugs were again being sold in front of the Lounge. This time, when investigating, the detective saw six people approach defendant and his brother as they stood on the sidewalk in front of the Lounge.
On receiving cash from each of the six people, defendant or his brother would enter the Lounge and then return to the sidewalk in front of the Lounge to make an "exchange" with the person. Following the exchange the person would then leave the area in front of the Lounge.
Again a police informant approached defendant and entered the Lounge with him. When the informant returned to the prearranged location to meet the detective, he said that defendant had given him aluminum-foil packets that defendant had received from two other persons in the Lounge. The packets contained cocaine. The police arrested defendant as well as his two cohorts in the Lounge who had given him the aluminum-foil packets. Following the arrests, detectives recovered 125 aluminum-foil packets containing cocaine, as well as three aluminum-foil packets that defendant had discarded outside the Lounge. Defendant's brother was not charged in the September incident.
Defendant and others were indicted for drug violations for the August 14th and September 4th activities. The second indictment was tried first and resulted in defendant's conviction of conspiracy to distribute drugs. (The jury inexplicably acquitted defendant of the substantive counts of possession for the September 4th activities, but convicted him of conspiracy to commit the same overt acts.)
At an Evidence Rule 8 hearing before trial of the August indictment, the State sought leave to introduce the evidence of defendant's September 4th activities. Over defendant's objections, the trial court ruled the other-crime evidence admissible against him under Evidence Rule 55, finding the evidence relevant to "other facts * * * in issue such as intent or plan, knowledge."
At trial, the State presented the September 4th other-crime evidence as well as the evidence of the August 14th incident. The court twice reminded the jury of the limited purpose of
other-crime evidence and instructed the jury in accordance with Evidence Rule 6:
Now, you also heard some testimony in this case concerning defendant James Cofield regarding the incident which occurred on September 4, 1985. You will recall that testimony and of course that with other persons on that September 5th who are not here before you. Now, this evidence cannot and should not be considered by you for the purpose of showing Mr. James Cofield's preDisposition to commit the crimes for which he is now charged and for which you are now going to consider his guilt or innocence. Is that clear, ladies and gentlemen? All right. Such evidence is admissible and can only be considered by you, ladies and gentlemen, and whether you deem it is credible and worthy of belief for the limited, and I do say limited purpose of proving some other fact in issue.
The jury convicted defendant of conspiracy to violate the drug laws, unlawful possession of a controlled dangerous substance, and unlawful possession with intent to distribute. The trial court merged the possession count with the distribution count and sentenced defendant to concurrent five-year terms of imprisonment for the conspiracy and distribution counts.
In an unreported decision, the Appellate Division merged the conspiracy with the distribution count but otherwise affirmed defendant's conviction. One Judge Dissented. He believed that the other-crime evidence was inadmissible because it tended to show "no more than defendant's preDisposition to sell drugs." He further believed that the trial Judge did not properly weigh the probative value of the other-crime evidence in accordance with Evidence Rule 4 nor "did he give the required Evid.R. 6 limiting instruction." Defendant appealed on the basis of the Dissent below. R. 2:2-1(a).
We have recently reviewed the principles applicable to other-crime evidence under Evidence Rule 55. See State v. Stevens, 115 N.J. 289, 558 A.2d 833 (1989). Evidence Rule 55 states:
Subject to Rule 47, evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his Disposition to commit crime or civil wrong as the basis for an inference that he committed a crime or civil
wrong on another specified occasion but, subject to Rule 48, such evidence is admissible to prove some other fact in issue including motive, intent, plan, knowledge, ...