On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 97-08-01730-C.
Before Judges Skillman, Conley and Lesemann.
The opinion of the court was delivered by: Lesemann, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 12, 2000
Defendant Michael Mazowski appeals from his conviction and sentence for third degree burglary and third degree theft. In addition to a number of claims which we find lack merit, defendant argues that the trial court erred in permitting the State to present evidence of his drug addiction and argue to the jury that the addiction constituted a motive for the offenses charged. We agree that reference to defendant's drug use violated the prohibition of N.J.R.E. 404(b) against using evidence of "other crimes" to demonstrate a propensity to commit further crime, and that the evidence was not admissible as "proof of motive." Thus, we reverse.
The burglary and theft in question occurred at the home of Denise and Warren Brandenberger in Mays Landing, where two stereo components, a pair of sunglasses and $700 in cash, were taken from the house. By checking local pawn shops, police were able to track the stolen articles, and they ultimately concluded it was defendant who had pawned them. Defendant was thereupon arrested and questioned. He was given his Miranda warnings and, according to the police, ultimately admitted to burglarizing the Brandenberger house. He was subsequently indicted and pleaded not guilty.
At trial, the prosecutor offered testimony that, during questioning, defendant had spoken of his "drug and alcohol problem" and said he had committed the burglaries "because he needed money." The prosecutor said that comment went to "motive," and thus was admissible under Evidence Rule 404(b). Defense counsel objected, claiming that any relevance from such evidence was outweighed by the prejudice which would redound to defendant. The court ruled, however, that "this shows his motive and it may be prejudicial, but I'm not convinced that it outweighs any other value that the statement may make."
Detective Paul Hoffman of the State Police was then asked whether there came a time "when you spoke to the defendant about drug and alcohol issues"? Detective Hoffman answered, "Yes." He said it was defendant who "brought it up" and he then said the following:
Well, the reason our conversation ran for hours, the reason – – he said things were, you know, occurring. That he had a drug problem and he used cocaine and heroin, and at time he wouldn't sleep for days, then would start drinking alcohol and vodka would totally make his hands and fingers and arms cut and bleed. He just didn't believe he did everything that was being said by him and everything and it was a situation where he just said, I have a drug problem. I need help.
Defense counsel then moved for a mistrial, which was denied. The court said it would give the jury a limiting instruction, which it did as follows:
All right, ladies and gentlemen of the jury, I am going to permit this testimony concerning drug and alcohol problems that the defendant alleges that he had, not to show this defendant is a bad person. I am permitting it for your consideration for a very limited purpose. That is with respect to the motive, the statement alleged by the police witness, that the defendant, Michael Mazowski, suffered from both alcohol and drug abuse and I'm going to instruct you, that you are not to consider that for any other purpose other than, it was said by the defendant, and as to the issue of motive.
Now motive is not required to be proved by the State, however, if the State proves a motive and proves all of the essential elements of the offense beyond a reasonable doubt, then you may look to the defendant's motive. However, to consider this motive, you are only to consider it as it gives meaning to the surrounding circumstances. You are not to consider the motive that the defendant committed this offense. That's something you should not do.
They are not being introduced because – – to show that he has a predisposition to commit the offense, only – – but only as to the issue of motive. Motive again, don't consider the issue of drugs and alcohol, that this defendant committed this offense. It is only being introduced for the very limited purpose, to the issue of whether or not there was a motive.
Later, during the testimony of Police Officer Tappeiner, who had also participated in defendant's questioning, the following took place:
Q. Speaking to the defendant, did he ever make any statement as to his motivation for committing the burglary and the theft at the Brandenberger's house?
A. He stated that he had a drug problem.
The court then repeated, in a shortened form, the essence of the limiting ...