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State v. Marrero

March 20, 1997

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ADAM MARRERO, DEFENDANT-APPELLANT.



On appeal from the Superior Court, Appellate Division.

The opinion of the Court was delivered by Coleman, J. Chief Justice Poritz and Justices Pollock, Garibaldi and Stein join in Justice COLEMAN's opinion. Justice O'hern filed a separate Concurring opinion. Justice Handler filed a separate Dissenting opinion.

The opinion of the court was delivered by: Coleman

(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 interests of brevity, portions of any opinion may not have been summarized).

State of New Jersey v. Adam Marrero (A-23-96)

Argued October 8, 1996 -- Decided March 20, 1997

COLEMAN, J., writing for a majority of the Court.

This appeal involves convictions for purposeful or knowing murder, kidnaping, aggravated sexual assault and sexual assault. In this case, the Court addresses the issue of whether it was reversible error for the Appellate Division to overrule the decision of the trial court precluding the State from introducing evidence that defendant was awaiting sentencing on a charge of sexual assault at the time of the murder and, further, whether the trial court's instructions concerning the other-crime evidence were so deficient that they constituted plain error.

A Cumberland County grand jury indicted Adam Marrero for murder, felony murder, first-degree kidnaping, first-degree aggravated sexual assault, and second-degree sexual assault of F.C. In May 1990, the case was tried before a jury in Salem County. At the time of F.C.'s death, Marrero was awaiting sentencing for a sexual assault on another victim. He had been charged with raping and sodomizing both K.N. and I.F. at different times approximately five months before F.C.'s death. The trial court denied the State's motion to introduce the other-crime evidence respecting the K.N. and I.F. sexual assaults, or, in the alternative, to introduce the fact that Marrero had pled guilty to one of the prior sexual assaults, for which he was awaiting sentencing. The State argued that that fact suggested a motive to kill F.C. and that evidence would assist the jury in determining the type of homicide committed.

The Appellate Division granted the State's motion for leave to appeal and, over the Dissent of one Judge, summarily reversed the trial court, ordering that the trial court admit the fact that Marrero was awaiting sentencing for a sexual assault at the time of the offenses against F.C. were committed. The trial court was directed to give a limiting instruction allowing the jury to consider the other-crime evidence only after it had concluded, beyond a reasonable doubt, that Marrero was in fact responsible for F.C.'s death. The Dissenting member of the panel would have affirmed the trial court's ruling based on the balancing test of Evidence Rule 4, which excludes consideration of otherwise relevant evidence if its probative value is outweighed by its potential for prejudice. The Supreme Court denied Marrero's motion for leave to appeal.

At trial, the Judge gave a jury instruction, which did not specifically inform the jury that it could not use the other-crime evidence to conclude that Marrero had the propensity to commit the alleged acts. At the Conclusion of the State's case, the trial court dismissed the charge of second-degree sexual assault and the jury convicted Marrero on all the other charges. He was sentenced to prison for terms aggregating life plus twenty years with forty years of parole ineligibility.

The Appellate Division affirmed the judgment of conviction in an unpublished opinion, with one Judge Dissenting. The majority of the Appellate Division panel regarded the prior Appellate Division decision to be the law of the case, and, therefore, the issue whether the other-crime evidence should have been admitted was not before the court. The Dissenting Judge found the law-of-the-case doctrine to be a discretionary rule and concluded that the conviction should be overturned because the probative value of the other-crime evidence was substantially outweighed by the risk of undue prejudice.

This appeal is before the Supreme Court as of right based on the two Dissents.

HELD: The Appellate Division's erroneous admission of other-crime evidence over the trial court's discretionary decision to exclude it was harmless error; the trial court's jury instructions, considered as a whole, do not rise to the level of being clearly capable of producing an unjust result.

1. The Court's denial of the motion for leave to appeal preserved the issue of whether the other-crime evidence was too prejudicial to be amenable to a limiting jury instruction. (pp. 9-11)

2. Where the other-crime evidence tends to make the existence of a material fact reasonably likely, it is admissible subject to the "probativeness/prejudice" balancing under Evidence Rule 4. (pp. 12-14)

3. In determining when other-crime evidence is admissible, a four-part test designed to avoid the over-use of extrinsic evidence of other crimes or wrongs should be applied. (p. 14)

4. Determinations on the admissibility of other-crime evidence are left to the discretion of the trial court and its decisions are entitled to deference and are to be reviewed under an abuse of discretion standard. (pp. 14-15)

5. In the past, the Court has found other-crime evidence to be probative of intent and motive. (pp.17-23)

6. A decision to admit other-crime evidence should not be upset unless the danger of undue prejudice outweighs probative value so as to divert jurors from a reasonable and fair evaluation of the basic issue of guilt or innocence. (pp. 23-25)

7. The temporal remoteness of other-crime evidence affects both its probative worth and prejudicial effect on a defendant. (pp. 25-26)

8. When other-crime evidence is admitted, the court must instruct the jury on the limited use of the evidence and the court's instruction should be formulated carefully to explain precisely the permitted and prohibited purposes of the evidence, with sufficient reference to the factual context of the case to enable the jury to comprehend and appreciate the fine distinction to which it is required to adhere. (pp. 30-32)

9. The strength of the evidence against a defendant, independent of the other-crime evidence, is a factor to be considered in determining prejudice to a defendant. (pp. 32-33)

Judgment of the Appellate Division is AFFIRMED.

Justice O'HERN filed a separate Concurring opinion in which he agreed with the result for reasons different from those articulated by the majority. Specifically, Justice O'Hern would not have affirmed the conviction on harmless-error grounds. Rather, he would affirm the judgment of the Appellate Division in recognition that, under the rules governing interlocutory relief, the Appellate Division was in effect sitting as a trial court determining the admissibility of evidence.

JUSTICE HANDLER filed a separate Dissenting opinion, determining that the only inquiry the Court should have undertaken is whether the several conceded trial and appellate errors had the capacity to lead the jury to reach a result it otherwise might not have reached. Justice Handler would have concluded that the various trial and appellate errors, including the trial court's failure to give a sufficient limiting instruction, unquestionably denied defendant of his right to a fair trial.

CHIEF JUSTICE PORITZ and JUSTICES POLLOCK, GARIBALDI and STEIN join in JUSTICE COLEMAN's opinion. JUSTICE O'HERN filed a separate Concurring opinion. JUSTICE HANDLER filed a separate Dissenting opinion.

The opinion of the Court was delivered by

COLEMAN, J.

This appeal involves convictions for purposeful or knowing murder, kidnapping, aggravated sexual assault, and sexual assault. The appeal is of right based on a Dissenting vote in an interlocutory appeal and a Dissenting vote in a direct appeal. We must decide whether it was reversible error for the Appellate Division to overrule the trial court and order it to permit the State to introduce evidence that defendant was awaiting sentencing on a charge of sexual assault at the time of the murder and other offenses. We must also decide whether the trial court's jury instructions concerning the other-crime evidence were so deficient that they constituted plain error.

I

On Friday, August 26, 1988, F.C. and defendant Adam Marrero met for the first time at a social gathering at the home of F.C.'s aunt. Defendant and F.C. left the party at approximately 11:30 p.m. and went to a bar together. On Saturday morning at 8:20 a.m., F.C.'s daughter arose and noticed her mother's absence. Friends and family were called and a search was conducted for F.C. throughout the entire day. The Vineland police became involved in the case Saturday afternoon.

F.C.'s body was discovered on Monday morning in a remote area surrounding Central Park in Vineland. The body was nude, with legs apart and knees bent. Her arms were extended over her head, as if the body had been dragged. Her clothing was scattered around the area.

A Cumberland County grand jury indicted defendant for murder, felony murder, first-degree kidnapping, first-degree aggravated sexual assault, and second-degree sexual assault. As a result of a pretrial motion, trial of the case was conducted in Salem County in May 1990. The trial court denied the State's motion to introduce other-crime evidence.

During the trial, the State presented the following evidence. Before defendant went to the party at the home of F.C.'s aunt on August 26, 1988, he borrowed his uncle and housemate, Jorge Marrero's pickup truck for transportation. Defendant and F.C. left the party together at approximately 11:30 p.m. with a pizza that was intended to be delivered to F.C.'s daughter.

When Johnny Lazano, another uncle of defendant, learned on Saturday that F.C. had not returned home, he confronted defendant. When Lazano demanded information about F.C.'s whereabouts, defendant jumped up from the table, saying, "What am I going to do now? What am I going to do now?" Defendant later insisted that he had driven F.C. directly home. Lazano requested that defendant take him to F.C.'s home, but defendant claimed that he forgot where she lived.

Lazano reminded defendant where the victim lived, and the two drove to her home. Defendant told those present that he had dropped F.C. off three doors from her home as she requested. Defendant claimed that he had watched F.C. approach her door. On Saturday, August 27, 1988, Patrolman Frank Buscemi of the Vineland police questioned defendant about the events of the previous night. Defendant told Buscemi he had dropped off F.C. at about 11:00 p.m.

On Sunday, August 28, 1988, Detective Curley and Buscemi questioned defendant at his home. Defendant explained that he had taken F.C. home at about 11:30 p.m. and had then gone to the Peking Restaurant alone. He claimed that he left the restaurant at 1:30 a.m. and drove around Vineland before going home at 4:00 a.m.

Curley and Buscemi questioned Jorge, who told them that when he left for work at 6:30 a.m. on Saturday, neither the truck nor defendant was at the house. The officers obtained permission from Jorge to search the truck. Buscemi testified that defendant was "literally looking over our shoulders into the truck as we were going through [it]." When inconsistencies began to arise in defendant's alibi, Curley and Buscemi decided to interview defendant at headquarters. Curley noted bruises and swelling on defendant's hands. Defendant claimed the bruises were from working at a carnival, but he later admitted that he had last worked at the carnival more than eighteen months prior to the interview. Defendant stated that he had gone home at 6:00 a.m. on August 27, 1988, and then he changed the time to 7:00 a.m.

When confronted with evidence that F.C. had gone to the Peking Restaurant with him, defendant first denied that she had, but he eventually claimed that he had taken her home at 1:30 a.m. and driven around Vineland and Millville until 7:00 a.m. Defendant claimed that he had neither stopped for gas nor seen anyone during his drive. Defendant could not recall his route, so Curley and Sergeant Ballurio asked him to drive the route while they accompanied him. The trip took between one and one and one-half hours.

Near where F.C.'s body was found, the Vineland police discovered tire tracks running through a patch of vegetation. According to the State's expert, the tire tracks were made by tires similar to those of Jorge's pickup truck, and similar vegetation was stuck in the undercarriage of the pickup truck.

Dr. Lawrence Maypow, the Cumberland County Medical Examiner, conducted an autopsy and concluded that F.C. had died between twenty-four hours and several days before the corpse was discovered. Dr. Maypow concluded that F.C. had died from manual strangulation, based on several bruises on her neck and a fracture of the hyoid bone. A physical assault was evident from a piece of wood lodged in the victim's throat that matched the wood in the bed of Jorge's pickup truck. Semen found on F.C.'s sweater matched that of thirty-six percent of the White male population that included defendant's semen type.

Guy Bishop, another inmate housed in the Cumberland County Jail with defendant, testified that defendant, while in jail awaiting trial, confessed to killing F.C., saying first that she died during consensual intercourse. Bishop also testified that defendant told him that F.C. had slapped defendant and that he had "grabbed her by the throat and before he realized it she wasn't breathing."

At the time of F.C.'s death, defendant was awaiting sentencing for a sexual assault on another victim. Defendant was charged with raping and sodomizing K.N. in a wooded area of Vineland on March 12-13, 1988. Defendant was also charged with raping and sodomizing another victim, I.F., in a wooded area on March 19-20, 1988. Defendant pled guilty to reduced second-degree sexual assault charges in the K.N. case in exchange for the dismissal of the charges in the I.F. case.

At the close of the State's case, it renewed its motion to introduce the other-crime evidence respecting the K.N. and I.F. sexual assaults, or in the alternative, to introduce the fact that defendant had pled guilty to one of the prior sexual assaults. The State argued that the fact that defendant had pled guilty to a sexual assault and was awaiting sentencing, suggested a motive to kill F.C. and that evidence would assist the jury in determining the type of homicide committed. The trial court denied the State's motion.

The Appellate Division granted the State's motion for leave to appeal on May 25, 1990. Over the Dissent of one Judge, the Appellate Division summarily reversed by order. The trial court was ordered to admit the fact that defendant was awaiting sentencing for a sexual assault at the time the offenses against F.C. were committed. The trial court was directed to give

an appropriate limiting instruction which shall include the direction that this evidence is not to be considered unless and until the jury finds independently from other evidence in the case, beyond a reasonable doubt, that defendant was in fact the perpetrator of the homicide. Once having so found, the jury may consider the evidence on the issue of defendant's motive and intent in committing the homicide in order to determine the type and degree of homicide involved.

The Dissenting member of the panel would have affirmed the trial court's ruling based on Evidence Rule 4 balancing test. This Court denied defendant's motion for leave to appeal on May 30, 1990.

The defense case essentially consisted of claiming that everyone connected with the case, including the police officers and Johnny Lazano, had lied in their testimony. Defendant testified in his own defense, and at one point claimed that he would not have committed the murder because he did not want "to do anything to get more time" and that, because "any [jail] time [is] not pleasant for anybody," he "wasn't going to get in any trouble" after being released on his own recognizance on August 25, 1988, after pleading guilty to the sexual assault on K.N.

The State introduced the other-crime evidence through defendant by agreement after the Appellate Division's ruling. Defendant testified that at the time of F.C.'s murder, he was waiting to be sentenced for the sexual assault on K.N. and that he was released from the Cumberland County Jail the day before the August 26, 1988, murder for which he was on trial.

The defense also presented two experts. The first of those, a dermatologist, testified that the bruises on defendant's hands were not bruises at all, but were rather the result of "acquired acromelanosis" or "hyperpigmentation," a darkening of the skin often seen in darker complexioned people. The expert conceded, however, that the "discoloration" shown in the photographs of defendant's hands could have been caused by punching or beating another person. The second expert testified that he did not find any of defendant's hair on the victim's body or clothing. He admitted on cross examination, however, that he found no hairs or other material originating from a third party either, explaining that a sample's prolonged exposure to the elements greatly reduces the likelihood of recovering any hairs or fibers that may have been transferred onto it.

The trial court dismissed the charge of second-degree sexual assault at the end of the State's case. The jury convicted defendant on all the other charges. He was sentenced to prison for terms aggregating life plus twenty years with forty years of parole ineligibility.

The Appellate Division affirmed the judgment of conviction in an unpublished opinion, with one Judge Dissenting. The majority of the Appellate Division panel regarded the prior Appellate Division decision to be the law of the case, and therefore, the issue whether the other-crime evidence should have been admitted was not before the court. The Dissenting Judge found the law-of-the-case doctrine to be a discretionary rule. He concluded that the conviction should be overturned because the probative value of the other-crime evidence was substantially outweighed by the risk of undue prejudice. Thus, the Dissents in both appeals were for the same reason: that under Evidence Rule 4 balancing test the evidence should have been excluded. This appeal is before the Court based on the two Dissents. R. 2:2-1(a)(2).

II

Before dealing with the other-crime-evidence issues, we address a procedural problem related to the two Dissents in the Appellate Division. The State relies on the law-of-the-case doctrine, explicated in State v. Reldan, 100 N.J. 187, 495 A.2d 76 (1985), and other cases, to argue that because it relied on the interlocutory decision of the Appellate Division and introduced the other-crime evidence, it would have been unfair to the State for the Appellate Division in ...


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