On appeal from the Superior Court, Law Division, Monmouth County.
(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).
COLEMAN, J., writing for a majority of the Court.
The issue in this appeal is whether statements made by defendant prior to the commission of a murder, possibly implicating defendant in another murder for which the defendant has not been charged and which has not yet been classified as a homicide, are hearsay and, if so, whether that hearsay can be used to prove motive under any exception to the hearsay rule.
Defendant lived with her mother, Mabel Long, in Avon, New Jersey. Her friend Tracey Roche lived with her mother, Irene, in Hillsborough. On August 27, 1998, defendant called Tracey to cancel a lunch date. At that time, Irene overheard Tracey exclaim, "Oh my God" and "Was she hurt?" After hanging up, Tracey told Irene that defendant called to cancel their lunch date because Mabel had fallen down the stairs. The next day, August 28, Tracey called defendant to inform her that Mabel had died. Again, Irene was in the vicinity, overheard the conversation, and was told by Tracey that Mabel had died.
On Saturday, August 29, Tracey and defendant made plans to have lunch the following day. On August 30, at 8:28 a.m., Avon police responded to a 911 call from defendant's residence requesting an ambulance for an elderly woman who had fallen down the stairs. Upon arrival, police found Mabel alive but injured. Mabel was taken to the hospital where she died later that day. Later that morning, defendant telephoned Tracey to advise her that she would be late for their lunch date, but did not say anything about that morning's events. Tracey left her house for the lunch date at about 12:45 p.m. and Irene never heard from her daughter again.
On September 9, 1998, Tracey's car was found in Ocean Grove by Neptune Township Police and in the car police found Tracey's badly decomposed body. Tracey's death was determined to be a homicide. Stains found on defendant's driveway tested positive for blood. With search warrant in hand, police discovered additional bloodstains in defendant's residence and DNA tests revealed that the blood came from Tracey.
On January 10, 2000, defendant was indicted for the death of Tracey Roche. The State filed a motion in limine seeking to use at trial the statements made by Tracey to Irene, pursuant to N.J.R.E. 803(c)(3). The State sought to use these statements to establish defendant's motive for killing Tracey; to eliminate the chance that Tracey would implicate defendant in Mabel's death. The State argued that, though hearsay, the statements were admissible under the state of mind exception to the hearsay rule, N.J.R.E. 803(c)(3). Defendant argued that the statements were not admissible because they were evidence of other crimes or wrongs that tended to show disposition to commit the charged offense and should be excluded under N.J.R.E. 404(b).
The trial court held, in part, that Tracey's statements to Irene that Mabel had fallen on August 27, 1998, and that she died on August 28, 1998, were other crimes evidence and inadmissible under N.J.R.E. 404(b). Relying in part on State v. Cofield, 127 N.J. 328 (1992), the court held that the prejudice far outweighed the probative value of the proffered evidence.
The Appellate Division denied the State's motion for leave to appeal. This Court granted the State's motion for leave to appeal and summarily remanded the matter to the Appellate Division to hear the appeal on the merits. On remand, the Appellate Division affirmed the Law Division's order in an unpublished opinion, agreeing that the prejudice to defendant outweighed its "uncertain" probative value.
The Supreme Court granted the State's petition for certification.
HELD: Tracey's statements to Irene concerning what defendant had told Tracey are part of the res gestae of Tracey's murder; they satisfy the state of mind exception, are not other-crime evidence, and are admissible under N.J.R.E. 803(c)(3). In addition, the statements are admissible under the excited utterance exception to the hearsay rule, N.J.R.E. 803(c)(2), and satisfy the probative value - prejudicial impact analysis under Cofield.
1. The hearsay rule applies when a declaration is offered to prove the truth of the statement attributed to the declarant. Hearsay evidence can be admitted only pursuant to one of the exceptions to the hearsay rule. Whether either or both of Tracey's statements are hearsay depend on the State's intended use of them and who will present that testimony at the trial. Although the statements are not being presented to prove the truth of the matter, since it is undisputed that Mabel did not die until August 30, the State must still rely on hearsay to prove that defendant actually made the two reputed statements to Tracey. The statements must therefore be treated as hearsay. Although the statements do not fit neatly into any one exception to the hearsay rule, we conclude that they are part of the res gestae of Tracey's murder, N.J.R.E. 803(c)(3), that is, evidence of her state of mind, and that the "excited utterance" nature of the two statements help to corroborate their trustworthiness, N.J.R.E. 803(c)(2). (Pp. 16-27)
2. The excited utterance exception to the hearsay rule, N.J.R.E. 803(c)(2), requires that (1) there was a startling event, (2) the statement was made while the declarant was under the stress of excitement from that event, and (3) the statement related to that event. Viewing defendant as the declarant when she made the statements to Tracey, the record does not satisfy the standard established under N.J.R.E. 803(c)(2). Since defendant deliberately fabricated both statements, they were not in fact made under any stress related to the occurrence of a startling event. However, to the extent that the admissibility of those statements turns on Tracey's mental state at the time she told Irene what defendant had said to her about Mabel's fall and death, N.J.R.E. 803(c)(2) has been satisfied. (Pp. 27-31)
3 Defendant's statements are admissible to establish defendant's motive for murdering Tracey. Because the motive evidence is not being admitted as other-crime evidence, there is no need to conduct a Rule 404(b) analysis. However, both res gestae evidence and evidence admis sible pursuant to the excited utterance exception to the hearsay rule are subject to Rule 403 balancing, the purpose of which is to determine whether the risk of prejudice to defendant in admitting the motive evidence outweighs its probative worth. State v. Cofield, 127 N.J. 328 (1992), established a four-prong test to determine when other-crime and civil-wrong evidence is inadmissible. The fourth prong incorporates the traditional probative/prejudicial balancing test of Rule 403 and although the emphasis will not be on defendant's criminal responsibility for Mabel's death, that evidence will likely raise a suggestion or an inference in the minds of jurors regarding defendant's culpability for her mother's death. For that reason, the probative value-prejudicial impact analysis under Rule 403 and Rule 404(b) are the same. Although this Court has imposed a stringent standard for the admission of other-crime evidence, our courts have not frequently excluded highly prejudicial evidence under the fourth prong of Cofield, in particular when the probative value of the evidence is enhanced by the absence of other less inflammatory evidence, as is the case here. The fourth prong of the Cofield test is satisfied. (Pp. 31-39)
4. Generally no limiting instruction is necessary insofar as res gestae evidence is concerned. In this case, however, a limiting instruction is appropriate because both the res gestae and the excited utterance exception to the hearsay rule are applicable. A limiting instruction would also ensure that the prosecutor does not use the motive evidence improperly during summation. (P. 39)
The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the Law Division for trial.
CHIEF JUSTICE PORITZ concurring, in which JUSTICE LONG joins, is of the opinion that the res gestae principle remains a useful interpretive tool when tethered to specific Evidence Rules.
JUSTICE STEIN, concurring in part and dissenting in part, disagrees with the majority's use of the phrase res gestae, characterizing it as archaic, and is not persuaded that the victim's reaction to defendant's phone calls appropriately can be characterized as an excited utterance.
JUSTICES VERNIERO, LaVECCHIA, and ZAZZALI join in JUSTICE COLEMAN's opinion. CHIEF JUSTICE PORITZ filed a separate concurring opinion in which JUSTICE LONG joins. JUSTICE STEIN filed a separate opinion concurring in part and dissenting in part.
The opinion of the court was delivered by: Coleman, J.
The critical issue in this appeal is whether extra- judicial declarations made by an accused prior to the commission of a murder are hearsay, and if so, whether they are admissible under any exception to the hearsay rule to prove defendant's motive for killing the victim where the declarations imply that defendant was involved in another death that the medical examiner has not classified as a homicide and for which defendant has not been charged. In an unpublished opinion, the Appellate Division analyzed the probative value and prejudicial effect of the evidence and concluded that it was not admissible because "its use carried a risk of prejudice and confusion that outweigh[ed] its uncertain probative value." We reverse.
This is a homicide case in which the trial is still pending. Our statement of facts has been gathered from testimony presented to a Monmouth County Grand Jury and facts revealed at a probable cause hearing. That Grand Jury has indicted defendant Carole Long for the murder of her friend, Teresa Roche, also known as Tracey. In August 1998, defendant lived with her ninety-one year old mother, Mabel Long, in a garage apartment in Avon, New Jersey. Like defendant, Tracey Roche shared her home with her own mother, Irene Roche, in Hillsborough. Tracey and defendant had been friends since 1992. Although they had not visited each other in the period before Tracey was murdered, they spoke at length on the telephone and e-mailed each other regularly.
Defendant and Tracey arranged to meet for lunch on Thursday, August 27, at Ruby Tuesday's restaurant in the Monmouth Mall. At that time, defendant was planning to attend her daughter's September 11, 1998 wedding in San Diego, California. Tracey had been invited to attend the wedding but she declined.
According to Irene Roche, defendant called Tracey on August 27 to cancel their lunch date. Irene overheard Tracey exclaim, "Oh my God." Irene went to the door of Tracey's bedroom and heard Tracey ask, "Was she hurt?" Irene remained in the doorway of Tracey's bedroom until Tracey hung up the telephone. Tracey then told Irene that defendant had cancelled their lunch plans because defendant's mother, Mabel Long, had fallen down the stairs.
Tracey telephoned defendant the following day, Friday, August 28, to inquire about Mabel. Again, Irene overheard Tracey's side of the conversation as Tracey exclaimed, "Oh I'm so sorry," and then asked "Is there anything I can do?"
Irene waited in the open doorway of Tracey's bedroom until the telephone conversation ended. After Tracey hung up the telephone she told Irene that defendant's mother had died. Tracey said that defendant was not planning a funeral and that a memorial service would be held on December 10, the anniversary of the day defendant's mother and father had met. Tracey added that it was a good thing that the luncheon had been cancelled, because otherwise she would have been with defendant when Mabel Long died.
On Saturday, August 29, Tracey again called defendant and the two women made plans to have lunch the following day at the Brielle Yacht Club. Tracey planned to stay overnight and return on Monday, August 31, and asked Irene to telephone her at defendant's home on Monday to give her an excuse to leave.
On Sunday, August 30, at 8:28 a.m. the Avon police responded to a 911 call from defendant's residence requesting an ambulance for an elderly woman who had fallen down the stairs. When they responded to the call, police found defendant's mother alive but injured. Mabel Long was transported to the hospital and died later that day. Defendant also was taken to the hospital because of a panic attack. Irene Roche recounted that later the same morning Tracey called defendant to advise that she was running late, and would not be there for lunch at 2:00 p.m. as originally planned. At about 12:45 p.m. that Sunday, Tracey left her home in Hillsborough driving her red Mazda without saying anything to reveal whether defendant had informed her about that morning's events. When Tracey did not follow her usual practice of calling her mother upon arriving at her destination, Irene Roche telephoned defendant at about 3:30 p.m. to see if Tracey had arrived. There was no answer. Irene left a message on the answering machine, but did not receive a return call.
The following day, Monday, August 31, Patrolman Greg Torchia of the Avon Police Department received a call from an investigator in the county medical examiner's office questioning how Mabel Long could have sustained a four-inch gash on her head when the stairs on which she had fallen were carpeted. In order to make arrangements for the investigator to speak to defendant and to examine the area where the fall allegedly occurred, Patrolman Torchia drove to defendant's residence to schedule an appointment. No one answered his knock on the door. However, Torchia noticed a red Mazda parked on the concrete apron of defendant's driveway. When he looked inside the car, he saw what he described as a "lumpy mass" covered by a garment bag. Torchia wrote down the license number and called headquarters for a "look-up" on the car. He was informed that the car was registered to Tracey Roche of Hillsborough, New Jersey. Torchia left a note in defendant's mailbox asking her to call the Avon police to schedule an interview.
At about 1:00 p.m. that Monday, Irene Roche telephoned Tracey at defendant's residence as previously arranged to provide Tracey with the desired excuse to leave. When no one answered the phone, Irene left a message. Again, no return call was received. That evening at about 8:00 p.m. Irene called again. This time defendant answered the telephone and told Irene that Tracey was not there. She added that perhaps Tracey had met some friends and gone to Long Beach. Defendant told Irene not to bother her anymore and abruptly ended the call.
With still no word from Tracey, Irene called defendant again on Tuesday, September 1, at about 9:30 a.m. Defendant was abrupt and said that she was calling the mortician and promised to call Irene back. After hearing nothing from defendant for one and one-half hours, Irene again called defendant. Sounding more agitated than ever defendant complained of high blood pressure and panic attacks, and expressed concern about attending her daughter's impending wedding in California. She reiterated that she did not know where Tracey was and again suggested that she may have met with friends and gone to Long Beach Island.
That same Tuesday, the investigator for the county medical examiner called the Avon police to inquire whether an appointment had been made to inspect defendant's apartment. Because defendant had not responded to his note, Patrolman Torchia visited defendant's residence. When defendant was told that the medical examiner wanted to inspect the residence, defendant said it was not a good time and that the officer should return the next day. Patrolman Torchia observed that the red Mazda was gone and asked defendant about it. She explained that the car belonged to a friend from North Jersey who was visiting to help with the arrangements pertaining to her mother's death.
Meanwhile, Irene Roche had reported to the Hillsborough Police Department that her daughter was missing. She was told that not enough time had passed to consider the matter a missing persons case, but an officer called the Avon police and then told Irene that Tracey's car had been reported in defendant's driveway two days earlier.
On Wednesday, September 2, Patrolman Torchia returned to defendant's residence for the third time, accompanied by the investigator from the county medical examiner's office. Patrolman Torchia stayed outside while the investigator examined the premises and, while he waited, he noticed what appeared to be a large bloodstain in the driveway where the Mazda had been parked. The stain was wet and it appeared to Torchia as though someone had tried to clean it. At that time, the cause of Mabel Long's death was described as "accidental." The cause of ...