Before Judges Pressler, Brochin and Steinberg.
The opinion of the court was delivered by: Steinberg, J.A.D.
 Submitted: October 6, 1998
On appeal from the Superior Court of New Jersey, Law Division, Mercer County.
The important issue raised by this case is whether a trial Judge, in admitting other-crimes evidence pursuant to N.J.R.E. 404(b), has the obligation, in order to avoid undue prejudice to the defendant, to limit the scope of that evidence to those facts necessary to prove the proposition for which it is offered. We hold that where the other-crimes evidence is otherwise admissible but involves inflammatory and other unduly prejudicial facts, the Judge is obliged to require the evidence to be sanitized to the extent necessary to accommodate both the State's right to establish a fact in issue and the defendant's right to a fair trial. The context in which the issue arises here is a prosecution for robbery and attempted murder in which the State sought to prove that defendant's motive was retaliation for the victim's having implicated him in the burning death of a dog belonging to the victim's cousin. We are satisfied that while some evidence of the episode was admissible to prove motive, the gruesome details surrounding the dog's death should not have been admitted since they were unnecessary to establish motive and were unduly prejudicial to defendant in terms of the crimes for which he was standing trial. Accordingly, we reverse and remand for a new trial.
Following a trial by jury defendant Paul Collier was found guilty of first-degree robbery of Keeon Burke(N.J.S.A. 2C:15-1) (count 1); third-degree attempted theft from Keeon Burke(N.J.S.A. 2C:20-3(a) and N.J.S.A. 2C:5-1) (count 2); first-degree attempted murder of Keeon Burke(N.J.S.A. 2C:11-3 and N.J.S.A. 2C:5-1) (count 3); second-degree aggravated assault (N.J.S.A. 2C:12-1(b)(1)) (count 4); fourth-degree aggravated assault by knowingly under circumstances manifesting extreme indifference to the value of human life pointing a firearm, a handgun, at or in the direction of Keeon Burke (N.J.S.A. 2C:12-1(b)(4)) (count 5); and second-degree possession of a handgun for an unlawful purpose (N.J.S.A. 2C:39-4(a)) (count 7). *fn1
At sentence the trial Judge merged count 4 into count 1 and counts 2, 5, and 7 into count 3 and imposed two concurrent twenty-year terms of imprisonment with ten years to be served without parole. *fn2
In this appeal defendant raises the following issues:
POINT I DEFENDANT WAS DENIED A FAIR TRIAL WHEN THE TRIAL JUDGE ALLOWED THE PROSECUTOR TO ADDUCE EVIDENCE AND THEN COMMENT IN SUMMATION ON IRRELEVANT AND PREJUDICIAL INFORMATION THAT KEEON AND KEVIN BURKE "LAID LOW" AFTER THE DOG BURNING EPISODE BECAUSE "WORD ON THE STREET WAS THAT" DEFENDANT AND LANE WERE "LOOKING FOR THEM." (Partially Raised Below).
POINT II THE TRIAL JUDGE ERRED IN ALLOWING THE STATE TO INTRODUCE EVIDENCE OF DEFENDANT'S ALLEGED INVOLVEMENT IN THE BURNING OF A PIT BULL ON A PRIOR OCCASION IN VIOLATION OF N.J.R.E. 404(b) AND 403 AND IN GIVING AN INADEQUATE LIMITING INSTRUCTION REGARDING THIS EVIDENCE. (Partially Raised Below).
POINT III DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE AND UNDULY PUNITIVE.
We agree with the argument raised by defendant in Point I and also conclude that the evidence admitted under N.J.S.A. 404(b) should have been sanitized. We reverse and remand for a new trial. Accordingly, we do not address defendant's sentence in this appeal.
On June 26, 1995, the victim Keeon Burke, his cousin Kenneth Burke, and Darnell Thomas were walking their pit bull dogs. They entered an alleyway on Hermitage Avenue in Trenton. Kenneth and Darnell released their dogs from their leashes so that they could play. The victim did not release his dog. The two loose dogs ran up the alley and began growling at each other. Kenneth and Darnell ran to grab the dogs, but Darnell's dog, Satan, locked on to Kenneth's dog's face and then on to his testicles. Kenneth and Darnell grabbed sticks and separated the dogs. However, Kenneth's dog was injured and bloody from the fight. Kenneth decided he could not bring the dog home in that condition because his mother would not approve of what had taken place. Kenneth asked a number of persons to take the dog but they all declined. Kenneth and Darnell then walked the dog back to Stuyvesant Avenue and stayed there for approximately five minutes. The victim had gone to tie his dog up. Kenneth continued to ask people to take his dog. Defendant and his brother Tabika Dawson approached Kenneth and asked for the dog. Kenneth gave them the dog because he felt that defendant would care for it since defendant had pit bulls of his own. Defendant and Dawson took the dog and walked up Christopher Avenue in the direction of the train tracks.
About ten minutes later, while Kenneth was sitting on his porch on Hermitage Avenue, a young boy came up to him and said that there was a dog burning on the tracks. Kenneth thought that it might be his dog since defendant and Dawson were walking towards the tracks with the dog when he last saw them. Kenneth went to the railroad tracks but did not see the dog. He subsequently found out that it was his dog that was burned. The police responded to a 911 emergency call and found the dog badly burned and mortally wounded. Neither the victim nor Kenneth were at the scene when the dog died and had no personal knowledge of who actually set fire to it.
Approximately one week later Kenneth heard from family members that the police were looking for him and the victim to speak to them regarding the dog-burning. Kenneth and the victim went to the police station and spoke separately with the detectives. Kenneth told the police that he gave the dog to defendant and Dawson, and provided a written statement to the police regarding the incident. While Kenneth was giving his statement to the police the victim was being held in a separate jail cell due to an outstanding traffic warrant. After Kenneth gave his statement the victim was moved upstairs to another cell which was next to a cell holding Dawson. Dawson asked the victim questions about what happened during the police interview. Dawson appeared concerned about what Kenneth was telling the police, and the victim attempted to reassure Dawson that Kenneth had said nothing. Ultimately Kenneth, the victim, defendant, Dawson, and Andre Lane were charged with the dog-burning incident. *fn3
About three weeks later on the evening of July 18, 1995, the victim was walking with his girlfriend Coffee Watkins. Watkins thought she heard a noise coming from a cluster of bushes near the sidewalk. The couple stopped momentarily but the victim heard nothing and continued to walk. After the victim had taken several steps ahead of Watkins, two men wearing hooded sweatshirts and jeans came out of the bushes carrying handguns. According to the victim, one assailant wore a brown sweatshirt and black jeans and the other wore a black sweatshirt and blue jeans. The assailant with the brown sweatshirt had a chrome colored handgun which he placed to the back of the victim's head and demanded the victim's money. Although the assailant made some effort to disguise his voice, the victim recognized his voice as that of defendant whom he had known since he was nine years old and had had contact with on an almost daily basis since that time. The victim thought the assailant was joking and pushed the gun away from his head several times, tried to continue walking, and told the assailants to stop joking.
The other assailant had a black handgun which he also placed to the victim's head. When the victim told each to stop playing with him, the second assailant told the victim that they were not playing and began patting the victim's pockets pulling something out of the victim's pocket. When the victim turned to look at this assailant defendant shot the victim in the right side of the head. The police who were dispatched to the scene, immediately called for emergency medical assistance. The victim was transported to Cadwalader Park for air-lifting to Cooper Medical Center in Camden for treatment. While he was waiting to be air-lifted, he told the police that defendant and Andre Lane were the persons who had robbed and shot him. The next day, in the hospital, the victim made a photographic identification of defendant and Lane. At the time of trial parts of the bullet still remained in the victim's head, he suffered from occasional seizures, convulsions, and severe migraine headaches, and the vision in his left eye was impaired.
Prior to trial the State made known its intention to seek to introduce evidence regarding the dog-burning incident in an effort to establish revenge or "street Justice" as the motive for the robbery and shooting of the victim. The State argued that an inference could be drawn that defendant thought Kenneth and the victim had implicated him in the dog-burning incident because defendant knew that Kenneth and the victim had gone to the police station together and given statements, and that shortly thereafter they, along with defendant and Dawson, were charged with offenses arising out of the incident. Accordingly, immediately prior to trial the Judge conducted a hearing pursuant to N.J.R.E. 104(a) to determine if the evidence was admissible under N.J.R.E. 404(b) and, if it was admissible, whether it should nevertheless be excluded under N.J.R.E. 403. The trial Judge determined that the evidence was admissible to prove a motive for defendant to have shot and robbed the victim. The Judge recognized the extreme prejudice to defendant in light of the nature of the dog-burning incident but found that its probative value was not outweighed by its potential prejudice. The trial Judge, therefore, ruled the evidence to be admissible, particularly since there was no other evidence of motive that would be less prejudicial.
As evidence of the dog-burning incident, the State offered the testimony of Patrolman Anthony Pasqua, who testified that he responded to a radio call given to the canine officer of the Trenton Police Department regarding a report of a group of males setting fire to a dog. Since the canine officer acts as a one-man unit, Pasqua proceeded to the location to assist him since the call indicated more than one person was involved. Pasqua searched the area and found a pit bull dog lying on its left side that appeared to be burned on its right side from about its rib cage down to its tail. He further testified that it was bleeding from several areas and had lacerations to its anal and genital areas. Pasqua said the dog's tongue was hanging out of its mouth and it was partly severed and bleeding. He further testified that the anal area was "torn up." He further asserted that the dog was smoking as if the fire had "just went out." The dog was still alive. The dog was also bleeding from the facial area and had other little scratches and cuts. The dog died while Pasqua was waiting for the animal control officer. Pasqua was able to locate the 911 caller, and he testified that the caller told him that the persons surrounding the dog had poured lighter fluid on it and had thrown a match setting the dog on fire. Finally, he testified that the 911 caller turned away because she was unable to watch the incident.
After Pasqua was excused, a short recess was taken. Immediately thereafter the trial Judge gave the following limiting instruction to the jury:
Ok. Before we get started again, there is a brief, what is called a limiting instruction. That just means that you heard a bit of evidence, and I'm going to tell you under what circumstances you can use that evidence.
You just heard testimony concerning the cruelty to animals that we had talked about, the dog burning. Defendant is not charged with the incident. It's necessary at this time that I remind you of that.
I need, just for clarification purposes, to say the defendant is not charged here with that incident. That is not of your concern. Whether he's charged with that or not in another court is of no concern to you. He is not charged here with that incident.
There is a court rule that governs under any circumstances other prior wrongs or acts may be considered by a jury. It states as follows: Other crimes, wrongs or acts. Evidence of other crimes, wrongs or acts is not admissible to prove the Disposition of a person in order to show that he acted in conformity therewith. Such evidence may be admitted 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.
The evidence of the dog incident was introduced for the sole purpose here of establishing a motive on defendant's part. Motive evidence is defined as that which discloses why a person may have committed a criminal offense. So that is the sole purpose for which it is being admitted, not to show that he did this, or may have done this, so he probably did something else. It is not to be considered for that purpose.
You may not conclude that simply because he may have committed a wrong on another occasion, that he committed the offenses that are charged in this indictment. You may, however, consider this evidence solely for the purpose, motive which I have explained in conjunction with all the other evidence as to defendant's guilt or innocence.
It's necessary under the Rules of Court that I explain that to you now, and that will be relevant case law, [sic] and I will explain it again, remind you at the end of the trial. and with ...