On certification to the Superior Court, Appellate Division.
The issue in this appeal is whether the admission of other-crime evidence deprived defendant of a fair trial.
On October 12, 1998, two masked men robbed The Rainbow Deli in Edison. An eyewitness described the men as one being taller and broader than the other and was apparently able to make out through the eye openings in the masks that they were "black." The eyewitness also described how one of the men wielded a gun while the other emptied the cash register.
Eleven days later, two masked men robbed a North Plainfield 7-11 store. A videotape system recorded the robbery. One of the 7-11 store perpetrators dropped his wallet, later identified as belonging to Basim Hobson. Following his arrest, Hobson gave the police a statement implicating himself and defendant in both the 7-11 store and Rainbow Deli robberies. Hobson pled guilty to both robberies and, as part of a plea agreement, agreed to testify against defendant, whom he identified as the gunman in each robbery.
At defendant's trial, the prosecutor moved to introduce the videotape recording of the 7-11 store robbery as other-crime evidence. Because there was no clear and convincing evidence that defendant had committed another armed robbery, the prosecutor and the trial court agreed that the videotape was admissible as "demonstrative evidence" to corroborate Hobson's testimony that defendant was the gunman in the 7-11 store robbery, as well as other aspects of his testimony. Defense counsel objected to the introduction of the videotape, arguing that it was "highly prejudicial" and was probative of no material fact in issue in respect of the Rainbow Deli robbery.
The videotape was played twice for the jury and Hobson identified defendant as the masked person holding a gun in the videotape. The jury found defendant guilty of the Rainbow Deli robbery and a number of weapons charges, including possession of a handgun by a previously convicted felon. The trial court sentenced defendant on the robbery to a mandatory extended term of life without parole eligibility.
In an unpublished opinion, the Appellate Division affirmed the trial court's opinion, although it agreed that defense counsel had objected to both Hobson's 7-11 store robbery testimony and introduction of the videotape.
The Supreme Court granted defendant's petition for certification, initia lly limiting the issue to whether the videotape was admissible under N.J.R.E. 404(b) and N.J.R.E. 403. The Court subsequently advised counsel that it would also address whether Hobson's 7-11 store robbery testimony was admissible.
HELD: Evidence of a subsequent robbery was not admissible as other-crime evidence and was prejudicial to defendant, requiring a new trial.
1. Hobson's 7-11 store robbery testimony and the videotape are clear examples of other-crime evidence. The trial court failed to recognize this and consequently failed to apply the four-part test for determining whether such evidence was admissible. The trial court's decision is thus not entitled to deference or review under the abuse of discretion standard. This Court must therefore conduct a de novo review of whether the other-crime evidence was admissible. (Pp. 8-9)
2. N.J.R.E. 404(b) circumscribes the use of other crimes, wrongs, or bad acts committed by an accused and, read in conjunction with N.J.R.E. 403, is a rule of exclusion rather than a rule of inclusion. Other-crime evidence is admissible when: 1) The evidence is relevant to a material issue genuinely in dispute; 2) The evidence is similar in kind and reasonably close in time to the offense charged; 3) The evidence is clear and convincing; and 4) The probative value of the evidence outweighs its apparent prejudice. State v. Cofield, 127 N.J. 328 (1992). (P. 9-12)
3. Ordinarily, other-crime evidence should not be admitted simply to bolster the credibility of a witness. Applying the four-prong test, Hobson's testimony in respect of the 7-11 store robbery was not relevant and therefore inadmissible. Similarly, the videotape was inadmissible other-crime evidence. The trial court inaccurately described the videotape evidence as "demonstrative" when in fact it did not demonstrate anything because the masked robbers were unrecognizable. The videotape was not relevant, had no probative value, and should have been excluded because the prejudicial effect far outweighed any probative value. In addition, introduction of the other-crime evidence was not harmless error. Without that evidence, the jury may well have disbelieved Hobson's testimony in respect of the Rainbow Deli robbery. (Pp. 12-15)
The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the Law Division for a new trial.
CHIEF JUSTICE PORITZ and JUSTICES LONG, VERNIERO, LaVECCHIA, ZAZZALI, and JUDGE PRESSLER, J.A.D., temporarily assigned, join in Justice COLEMAN's opinion.
The opinion of the court was delivered by: Coleman, J.
Defendant was convicted of first-degree robbery of a deli that occurred on October 12, 1998. During the course of that trial, the State was permitted to introduce other-crime evidence of a subsequent robbery for the sole purpose of bolstering the credibility of Basim Hobson, a critical prosecution witness. He testified that he and defendant committed both robberies. The critical issue presented in this appeal is whether the admission of that evidence deprived defendant of a fair trial. The trial court ruled against defendant and the Appellate Division affirmed. We reverse the ...