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State v. Parker

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 16, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JEREMIAH PARKER, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, 01-09-0991-I.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 1, 2007

Before Judges Coburn, Axelrad and Gilroy.

Elijah Kelly died on May 12, 2001, from a massive brain hemorrhage caused by a blow to his head. During the month before he died, Jeremiah Parker and Tauleah Kelly beat and tortured him. Kelly was his mother and Parker was Kelly's boyfriend. When he died, Elijah was four years old.

A Passaic County Grand Jury returned an indictment charging Parker and Kelly with first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a); second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a), and fourth-degree cruelty and neglect, N.J.S.A. 9:6-1 and N.J.S.A. 9:6-3. In addition, Kelly was charged with second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1), and third degree-aggravated assault, N.J.S.A. 2C:12-1(b)(7). Kelly pled guilty to second-degree manslaughter and second-degree endangering the welfare of a child. The prosecutor agreed to a maximum prison sentence of seven years with an eighty-five percent parole disqualifier, and in return, Kelly agreed to testify against Parker. A jury found Parker not guilty of aggravated manslaughter and manslaughter, but guilty of second-degree endangering the welfare of a child, N.J.S.A. 24-4(a). The judge imposed a ten-year term of imprisonment with a five-year parole disqualifier, and Parker appealed.

The State concedes that resentencing is required by State v. Natale, 184 N.J. 458 (2005). That leaves three issues for us to resolve: (1) did the trial judge err by permitting the jury to hear other-crime evidence consisting of Parker's physical assaults on Kelly; (2) did the judge fail to provide adequate limiting instructions on that other-crime evidence; and (3) did the prosecutor deny defendant a fair trial by making inflammatory remarks during summation. Our answer is no.

I.

Because Parker does not contend that the jury's verdict was against the weight of the evidence and because of the nature of the issues presented, a brief overview of the facts will suffice.

In March 2001, Kelly, then nineteen, and her four-year old son, Elijah, left California to live with Parker in New Jersey. When Kelly discovered shortly after their arrival that Parker had another girlfriend staying in the hotel in which they were temporarily residing because of a fire at Parker's townhouse in Haledon, she picked up a knife and demanded that he buy airline tickets so that she and Elijah could return to California. He refused, punched her in the face several times, and kicked her. Although the evidence of that beating was not admissible under the judge's ruling, Parker did not object when Kelly so testified before the jury. We infer that there was no objection because Parker's attorney knew he would be presenting the testimony of Parker's other girlfriend, Laytoya McCall, who later testified that she saw Kelly try to stab Parker several times; that he did not strike Kelly; and that there were no marks on Kelly's face after the incident.

After a few days at the hotel, Parker, Kelly, Elijah, and some of Parker's friends and relatives moved to Parker's Haledon townhouse. By early April 2001, the houseguests had departed. Kelly testified that after the guests left, Parker began abusing her and Elijah almost daily until Elijah's death in May.

Kelly testified that Parker bit her on the breast, leaving teeth marks; punched her thigh with his fist; and struck her on the inner thigh with a belt around which he had wrapped an extension cord. Police photographs of the teeth marks and thigh injuries were exhibited to the jury. Once, while she was lying in bed, he stuck her in the back three times with a heated black pin with a little gold knob, causing puncture and burn wounds. These wounds were also photographed and shown to the jury.

Kelly also described Parker's treatment of Elijah during this one-month period. Parker repeatedly punched Elijah and struck him with the belt/extension cord. Parker often used the belt against Elijah in the boy's bedroom. Because Elijah would run around the bedroom trying to avoid the blows, while screaming for the beatings to stop, there were belt marks all over the walls of that room. Parker also repeatedly bit Elijah on the chest and face, on one occasion in retaliation for Elijah biting him on the chest. A police photograph of Parker's chest bite wound was shown to the jury. Although Kelly admitted that she bit Elijah twice, she said that Parker bit him on the face more than sixteen times. Kelly testified that Parker punished Elijah by making him stand in front of a fan, which caused the boy to wheeze and "shake real hard" because he had asthma. On one occasion, she saw Parker holding a pitcher of water and standing in front of a refrigerator in the garage. The freezer door was open, and Parker smiled and threw the water into the freezer. Elijah was "folded up" in the freezer, crying.

On April 20, 2001, Parker and Kelly brought Elijah to the emergency room at St. Joseph's Hospital in Wayne, and told the doctors that Elijah had hurt himself falling down the stairs and was not responding normally. Because of the seriousness of the injuries, the doctors transferred Elijah to St. Joseph's Hospital in Paterson. The doctors identified Elijah's injuries as including a left subdural hematoma and multiple bruises and marks. Dr. William DeBruin, the chief of the pediatric critical care unit, testified that although the hematoma was small and did not greatly concern him, he was troubled by the marks on the boy's body, which he described as "loop marks" of varying ages across his entire head, on his arms, his legs and his back. He told the jury that such marks are almost always inflicted on a child by a beating with a looped object, such as an extension cord or wire coat-hanger. He described Elijah's injuries as "textbook classic" indicators of recurrent abuse.

The bitemarks on Elijah's face were inflicted after this hospitalization.

The Division of Youth and Family Services ("DYFS") was called to the hospital. Kelly told the DYFS representative that she never hit Elijah and that his injuries were caused by a fall down the stairs and a go-cart accident. Parker, on the other hand, told the DYFS representative that Kelly did beat Elijah as punishment. Elijah, however, supported his mother's story, and he was released from the hospital a few days later. A DYFS representative visited the Haledon townhouse several times over the next two weeks, but decided to close the case after Kelly said she and Elijah were returning to California. Parker later admitted to the police that when he learned that a DYFS representative would be coming to the townhouse, he painted over the marks made by the belt on the walls of Elijah's bedroom, switched Elijah's bedroom to a different room down the hall, and threw the belt away.

Kelly testified that on May 12, 2001, she punched Elijah on the back of his head. Although the blow made him dizzy, when she left the townhouse shortly thereafter, he was lying fully clothed on his bed, conscious and dry. She returned a half hour later, found the shirt Elijah had been wearing, which was now soaking wet, in the kitchen, and Parker and Elijah in the boy's bedroom. When Elijah did not respond to her, she asked Parker what had happened, but he did not answer. As they started to go to St. Joseph's Hospital in Wayne, blood poured from Elijah's nose and mouth. When they arrived, Elijah, whose clothes were soaking wet, was unresponsive and limp. After restoring Elijah's pulse and respiration, the staff decided to transport him to St. Joseph's Hospital in Paterson, where he was examined by Dr. DeBruin.

Although Elijah had been resuscitated after suffering cardiac arrest, his brain did not recover, and he was declared dead shortly after Dr. DeBruin's examination. Dr. DeBruin found many new wounds on Elijah's body, including multiple adult, human bite marks; new abrasions; bruising throughout his body; and additional loop marks. A CAT scan revealed cerebral herniation, meaning that Elijah's brain had swollen and bled so much that it had actually moved out of his skull and into his spinal canal. Dr. DeBruin testified that "it takes a lot to cause the type of injury that Elijah had," adding that "he had to [have been] beaten and beaten bad."

Dr. David Kroning, Director of Pediatric Emergency Services and Child Protective Services at the hospital, testified that the "most remarkable" findings of his examination were the crusted bite marks on Elijah's forehead and chest. He also noted the "multiple marks on the hands [and] extremities, the back, and the lower extremities and, again, they were looped in shape and also kind of two linear lines, side by side." He said that the differing ages of the injuries showed that they were the result of an "ongoing process" and not of an isolated event.

Dr. Kenneth D. Hutchins performed the autopsy. In addition to confirming the injuries and the cause of death noted above, he found a rib fracture, and "some pinpoint or punctate, crusted to scab-like lesions over the back of [Elijah's] hands and on his left palm." He compared photographs of Elijah's pinpoint wounds with a photograph of Kelly's pinpoint wounds, and he testified that their characteristics were consistent.

At the hospital, Parker admitted to a prosecutor's investigator that he had "popped" Elijah on the back of his head a couple of times. He demonstrated what he meant by striking his open hand with his fist, generating a loud popping sound. The investigator described Parker as strong and muscular, 6'5" tall, and weighing about 285 pounds. At the time, Parker was playing football for the New York Giants.

A search of the Haledon townhouse revealed, among other things, the walls of Elijah's old bedroom, which now contained no furniture, covered with so many paint-covered belt marks that they could not be counted; a belt in Parker's closet that matched a belt mark found on top of the stairway banister; and a stand-alone fan. It also revealed an operating refrigerator containing a pitcher of water and no shelves. Inside the refrigerator, the investigators found a small handprint on the lower back wall.

II.

We turn to the first issue, whether Judge Subryan erred by permitting the jury to hear the other-crime evidence. After a pre-trial hearing, Judge Subryan found that Kelly was a credible witness. He based that determination, and his further conclusion that the State had met its burden of producing clear and convincing evidence of the prior bad acts, on Kelly's demeanor, buttressed by the photographs; the other physical evidence; and expert testimony. Although there was evidence of numerous other bad acts committed by Parker, Judge Subryan only admitted evidence of these injuries suffered by Kelly: the pinpoint needle wounds on her back; the bite mark on her breast; and the punch and belt marks on her thighs, reasoning as follows:

[T]he burning of Tauleah Kelly's back and shoulder with a heated pin or needle is consistent with the punctate marks present on the hands and palm of Elijah. These punctate lesions are very unusual and distinctive and give rise to a level of signature. These wounds in combination with the bite marks and wounds to the thighs demonstrate a pattern of distinctive abuse.

Judge Subryan admitted this evidence as bearing on identity and intent.

The admission of the evidence in question is governed by N.J.R.E. 404(b), which provides as follows:

Evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person 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.

For other-crime evidence to be admissible, it must possess the following characteristics:

1. The evidence of the other crime must be admissible as relevant to a material issue;

2. It must be similar in kind and reasonably close in time to the offense charged;

3. The evidence of the other crime must be clear and convincing; and

4. The probative value of the evidence must not be outweighed by its apparent prejudice. [State v. Cofield, 127 N.J. 328, 338 (1992)].

"Evidence of prior bad acts must be relevant not merely to a material issue, but to a material issue that is genuinely disputed." State v. Fortin, 162 N.J. 517, 529 (2000). "For example, if identity is not really in issue . . . it would be improper to justify the use of other-crime evidence on that basis." State v. Cofield, supra, 127 N.J. at 338-39. "The true test [of relevancy] is the logical connection between the proffered evidence and a fact in issue, i.e., whether the thing sought to be established is more logical with the evidence than without it." State v. Hutchins, 241 N.J. Super. 353, 358 (App. Div. 1990).

The admissibility of other-crime evidence is left to the sound discretion of the trial court. State v. Covell, 157 N.J. 554, 564 (1999). "The trial court, because of its intimate knowledge of the case, is in the best position to engage in this balancing process. Its decisions are entitled to deference and are to be reviewed under an abuse of discretion standard." State v. Ramseur, 106 N.J. 123, 266 (1987).

To be admissible on the question of identity, evidence of prior bad acts must satisfy a stiffer standard than is required to prove other issues. State v. Reldan, 185 N.J. Super. 494, 502 (App. Div.), certif. denied, 91 N.J. 543 (1982). The proffer must consist of more than testimony of repeated crimes of the same class; "[t]he conduct in question . . . 'must be so unusual and distinctive as to be like a signature.'" State v. Inman, 140 N.J. Super. 510, 516 (App. Div. 1976) (quoting McCormick on Evidence § 190 (2d ed. 1972)).

The admissibility of such evidence is generally limited to those situations where a crime has been committed by some novel or extraordinary means or in a peculiar or unusual manner, and there is proof of recent similar acts or crimes by the accused committed by the same means or in the same manner. [Id. at 517 (quotation omitted).]

In cases involving "signature" crimes,

"the prior criminal activity with which defendant is identified must be so nearly identical in method as to earmark the crime as defendant's handiwork. The conduct in question must be unusual and distinctive so as to be like a signature, and there must be proof of sufficient facts in both crimes to establish an unusual pattern." [State v. Fortin, supra, 162 N.J. at 532 (quoting State v. Reldan, supra, 185 N.J. Super. at 502).]

The most unusual aspect of defendant's prior bad acts were the puncture/burn wounds inflicted on the back of Kelly's right shoulder. She testified that these injuries were caused when defendant stuck a heated pin in her back. Dr. Hutchins testified that Elijah also had unusual "pinpoint or punctate" lesions on the back of his hands and his left palm. He identified a photograph of the punctate wounds on Elijah's palm and hands and compared it to a photograph of the punctate abrasions on Kelly's back. He stated that, with a fair degree of medical certainty, the characteristics of Elijah's and Kelly's wounds were consistent.

The puncture/burn wounds were inflicted within the same time frame and were nearly identical as to method. The use of a pin as both a puncturing and burning weapon is unusual and distinctive. Moreover, when combined with the belt marks, contusions, and bites, they became part of a distinctive pattern of abuse. Evidence of Kelly's punctate abrasions, bite wounds and thigh injuries therefore satisfied the test set forth in Fortin and Reldan for admission of prior bad acts as proof of identity.

Evidence of Kelly's abuse was also relevant to Parker's intent and the absence of mistake in disciplining Elijah. On appeal, defendant claims that the theory of the defense was that he never inflicted any injuries on the child. This theory was not apparent at trial, however, as the State introduced Parker's statement that in order to discipline Elijah, he spanked him, "popped" him in the head and hand, twice hit him with a belt, and placed him in front of a fan until he shivered. Thus, the question of whether Parker inflicted injuries on Elijah inadvertently, while disciplining him, was material to the issues in dispute. See N.J.S.A. 2C:24-4(a) and N.J.S.A. 9:6-1 (setting forth elements of endangering welfare of child).

"Where the proof of similar acts by a defendant tends to establish that the offense for which defendant presently is on trial was not inadvertent, accidental, unintentional, or without guilty knowledge, such evidence is almost universally admitted." State v. M.L., 253 N.J. Super. 13, 22 (App. Div. 1991), certif. denied, 127 N.J. 560 (1992). Further, the admissibility of such evidence is enhanced when the other acts are "so intertwined in time, place and circumstance with the present charges as to evidence a continuous state of mind." Id. at 22-23 (citation omitted).

Parker's acts of abuse toward Kelly took place during the same six-week period and at the same location as the acts perpetrated against Kelly. Kelly testified that Parker struck her in anger, with the intention of inflicting pain. In fact, she stated that she sustained the belt wound at the same time and under the same circumstance as Elijah. With regard to the pin puncture/burn wounds, Kelly stated that she told Parker that "something was wrong with him," but defendant only laughed like it was funny.

This testimony by Kelly clearly showed that Parker's infliction of injuries on Elijah was not inadvertent, accidental, unintentional, or without guilty knowledge. For that reason, even if the evidence was not relevant to the issue of identity, it was relevant to the issues of intent and absence of mistake.

The second prong of the Cofield test requires that the other-crime evidence be similar in kind and reasonably close in time. State v. Cofield, supra, 127 N.J. at 338. Both of these requirements are clearly satisfied here.

Parker argues that evidence that he abused Kelly was not similar in kind to the crimes charged because it involved his relationship with his girlfriend, not his relationship with the four-year-old child. In support of this argument, he relies on State v. Sanders, 320 N.J. Super. 574, 581 (App. Div. 1999), aff'd, 163 N.J. 2 (2000), where the court held that evidence of the defendant's prior assaults on his girlfriend could not be admitted to prove that the defendant knowingly and purposely killed his daughter. The matter at hand, however, is distinguishable from Sanders.

In Sanders, the trial court admitted evidence that the defendant had assaulted his girlfriend by punching her in the stomach and face on several occasions prior to his daughter's death from severe abdominal injuries. Id. at 578-79. The Appellate Division reversed, finding that there was no logical connection between the evidence that the defendant assaulted his paramour and the fact in issue of whether he purposefully or knowingly killed his daughter. Id. at 581. We observed that the State's purpose in offering evidence of the defendant's assaults upon his girlfriend was obviously to demonstrate that he had an assaultive disposition and was thus likely to have committed the murder. Id. at 582.

Identity was not an issue in Sanders. The defendant admitted that the child was hurt while he was "play boxing" with her. Id. at 577. The only question was whether the defendant intended to inflict life-threatening injuries on his daughter. In this appeal, however, identity is a critical issue. Thus, the evidence that Parker abused Kelly was not proffered simply to show that he had an assaultive personality; it was introduced to show that some of the injuries inflicted on Elijah bore his unique signature.

Of course, intent and absence of mistake were also at issue here. But unlike Sanders, the evidence of abuse in this case is peculiar. While punching a girlfriend in the face or stomach may be evidence of general abuse, repeatedly stabbing a girlfriend with a hot pin or biting her hard enough to break the skin demonstrates an unusual methodology. Thus, even though evidence of general assaultive behavior towards a girlfriend might not establish a defendant's malice in assaulting a child, evidence of assaultive behavior that is so unique as to constitute an end in-and-of-itself may be sufficient to establish such intent.

Finally, the defendant in Sanders was convicted of first-degree aggravated manslaughter, id. at 575; the defendant in this case was acquitted of that charge. Therefore, even if Sanders stands for the proposition that assault against a girlfriend cannot be used to infer the reckless indifference to human life necessary to support first-degree aggravated manslaughter, it does not preclude the use of that evidence to establish the intent necessary to support a conviction for child endangerment.

The final prong of the Cofield test, which requires that evidence of prior bad conduct be excluded if its probative value is outweighed by the risk of undue prejudice, incorporates the traditional balancing test of N.J.R.E. 403. State v. Long, 173 N.J. 138, 162 (2002); State v. Cofield, supra, 127 N.J. at 338. Whether the proffered evidence is "'outweighed by its prejudicial effect on defendant must be pragmatically evaluated in the context in which that evidence [will be] offered.'" State v. Long, supra, 173 N.J. at 162 (quoting State v. Marrero, supra, 148 N.J. at 491).

"Although [the] 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." State v. Long, supra, 173 N.J. at 162. "[E]vidence claimed to be unduly prejudicial can be excluded only where its probative value 'is so significantly outweighed by its inherently inflammatory potential as to have a probable capacity to divert the minds of the jurors from a reasonable and fair evaluation' of the basic issues of the case." State v. Covell, supra, 157 N.J. at 568 (quoting State v. Thompson, 59 N.J. 396, 421 (1971)).

Factors to consider in evaluating the admissibility of other-crime evidence under N.J.R.E. 403 include the remoteness of the evidence and the availability of other evidence that can prove the same point. State v. Long, supra, 173 N.J. at 164; State v. Covell, supra, 157 N.J. at 569. Remoteness contemplates not only the passage of time, but also the nature of the evidence as well. Ibid. The more attenuated and less probative the evidence, the more appropriate it is for exclusion. Ibid. Likewise, "relevant evidence loses some of its probative value if there is other less inflammatory evidence available to prove [the same] point." State v. Long, supra, 173 N.J. at 164.

In the matter at hand, the distinctive pattern of defendant's assaultive conduct toward Kelly was extremely probative of his identity as Elijah's abuser. There was no other evidence available of his treatment of Elijah. Moreover, the evidence was not at all remote. Not only did the abuse of Kelly occur contemporaneously with the abuse of Elijah, the nature of the abuse was essentially identical. Finally, when viewed pragmatically, in the context of the trial, the evidence was not remarkably inflammatory. Kelly's testimony concerning defendant's abusive behavior towards her was relatively brief and unembellished. She did not describe the beatings in detail, nor did she dwell on her suffering. Further, following the medical testimony regarding Kelly's injuries and the results of his autopsy, and in the midst of Kelly's description of the brutal beatings the child endured, the testimony about her bruises was not especially shocking.

III.

We turn next to Parker's claim that the limiting instructions on the other-crime evidence was inadequate. He contends that the judge's "abbreviated" instruction fell "woefully short" of offsetting the prejudicial effect of the other-crime evidence because it did not explain how the evidence might be relevant to any material issue at trial.

Judge Subryan issued a limiting instruction concerning the use of the other-crime evidence at three different stages of the trial: before opening statements; immediately following elicitation of the evidence; and as part of the final jury charge. The three instructions were substantially similar. One example follows:

Ladies and gentlemen of the jury, you have just heard the State introduce evidence that the Defendant Jeremiah Parker allegedly committed certain acts of abuse against Tauleah Kelly.

Miss Kelly's testimony regarding the Defendant's alleged acts of burning her shoulder area with a heated pin or needle, biting her in the left chest area, punching her upper right thigh, and hitting her right thigh with a belt is allowed only as it might bear on the issue of identity of the perpetrator of the abuse committed against the victim Elijah Kelly or to demonstrate the state of mind of the Defendant or his intent, motive, knowledge or absence of any mistake or accident in regards to his treatment of the victim Elijah Kelly.

You may recall that I instructed you at the beginning of this trial that normally such evidence like the testimony that I've just outlined is inadmissible under our Rules of Court. This is so because our Rules of Evidence specifically state that evidence a person committed a crime or wrong on one occasion is inadmissible to prove a disposition to commit a crime on a different occasion.

Therefore, you may not take this evidence and conclude from it that the Defendant Jeremiah Parker is a bad person and thus has a disposition which demonstrates he's likely to have done the acts with which he is now charged or to show a general disposition to commit bad acts. This is not the purpose of allowing you to hear this evidence, and it should not be considered by you as such. The Rules of Evidence, however, do permit such testimony where such evidence relates to some other fact in issue.

Let me reiterate once again. The testimony here is allowed only as it might bear on the issue of identity of the perpetrator of the abuse committed against the victim Elijah Kelly or to demonstrate the Defendant's state of mind, motive, intent, knowledge or absence of any mistake or accident in regards to his treatment of the victim Elijah Kelly.

However, before you can give any weight to this evidence, you must be satisfied that the Defendant committed the alleged acts of abuse against Miss Kelly. If you are not satisfied, you may not consider it for any purpose. If you are satisfied that the Defendant did commit these acts of abuse against Miss Kelly, then you must decide whether or not this evidence demonstrates the Defendant's state of mind, motive, intent, knowledge, absence of mistake or accident regarding his treatment of the victim Elijah Kelly.

Whereas in order for you to use this evidence to establish the identity of the perpetrator, you must find that the Defendant not only committed these acts of abuse against Miss Kelly, but that these acts of abuse by the Defendant on the crime charged are so similar and unique as to infer that the same person committed both of them. You are not to draw this inference unless you conclude that a prior alleged abuse with which the Defendant is identified is so clearly identical in method as to earmark the crime as Defendant's handiwork.

Therefore, the conduct in question must be so unusual and distinctive as to be like a signature, and there must be proof of sufficient facts in both the prior alleged conduct and the crimes charged to establish an unusual pattern. Whether this evidence does, in fact, demonstrate any of these purposes is for you to decide.

However, you may not use this evidence to decide that just because the Defendant may have committed these acts against Miss Kelly, he must be guilty of the present crimes. I have admitted this evidence only to help you decide the specific question of the identity of the perpetrator of the crime charged or to demonstrate the Defendant's state of mind, motive, intent, knowledge or absence of mistake or accident regarding his treatment of the victim Elijah Kelly.

You may not consider it for any other purpose, and you may not find the Defendant guilty simply because the State has offered evidence that he allegedly committed other crime, wrongs or acts. I will charge you this charge again once more at the end of the case.

"When dealing with other-crimes evidence, a court must precisely instruct the jury that the proper use of such evidence is to prove a relevant issue in dispute and not to impugn the character of the defendant." State v. Blakney, 189 N.J. 88, 92 (2006). The inherently prejudicial nature of other-crime evidence "'casts doubt on a jury's ability to follow even the most precise limiting instruction.'" Id. at 93 (quoting State v. Stevens, 115 N.J. 289, 309 (1989). For that reason, the court must take pains to instruct juries carefully and comprehensively, with ample reference to the specific issues in dispute. Ibid. "In setting forth the prohibited and permitted purposes of the evidence the trial court must include within the instruction '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.'" State v. Hernandez, 170 N.J. 106, 131 (2001) (quoting State v. Fortin, supra, 162 N.J. at 534). Mere reference to the generalities of the rule is not sufficient. Ibid.; State v. Cofield, supra, 127 N.J. at 341.

Reviewing courts have not hesitated to reverse convictions when trial courts failed to adequately instruct the jury as to the limited nature and use of other-crime evidence. For example, in State v. Blakney, supra, 189 N.J. at 93-94, the Court concluded that a limiting instruction was inadequate because it was not given contemporaneously with the admission of other-crime evidence; it was not given in one uninterrupted reading; and its ambiguous phrasing implied that there were some circumstances under which the evidence could be considered to prove the defendant's predisposition to commit murder.

The limiting instruction in the matter at hand, however, shares none of the infirmities cited in Blakney. The instruction was given immediately following admission of the other-crime evidence and was repeated during the final jury charge. It was presented in a clear, uninterrupted fashion, and its phrasing left no doubt that the jury was not to consider defendant's abuse of Kelly as evidence of a criminal disposition. Thus, Parker's arguments challenging the instruction's alleged vagueness do not invoke Blakney, but rather rely on a line of cases where limiting instructions were found to lack the requisite specificity.

In State v. Cofield, supra, 127 N.J. at 331-32, the prosecution introduced other-crime evidence of the defendant's drug-related activities in order to establish his possession of cocaine with intent to distribute on the date in question. The trial court had instructed the jury that the other-crime evidence could not be considered for the purpose of showing the defendant's predisposition to commit the crime charged and could only be used for the "limited purpose of proving some other fact in issue." Id. at 333. The Court determined that this instruction was insufficient, because it merely restated the general provisions of N.J.R.E. 404(b) without focusing the jury's attention on finding constructive possession based on the evidence of the prior incident. Id. at 341-42.

In State v. Oliver, 133 N.J. 141, 148 (1993), the prosecution presented evidence that the defendant had assaulted three women, in addition to the two women who were the victims of the crime charged, in order to establish a common scheme or plan that was relevant to the defendant's intent. At the close of the State's case, the trial court carefully instructed the jury about how the evidence could not be used. Id. at 157. As to how the evidence could be used, however, the court stated merely that it was permitted where it "relates to some other fact in issue such as intent or plan." Ibid. The Court concluded that this instruction was deficient because it failed to state in contextual detail the permissible use of the evidence. Id. at 158-59.

In State v. G.S., 145 N.J. 460, 462-66 (1996), evidence was introduced that the defendant, who was convicted of sexually molesting his stepdaughter, had previously faced similar accusations by the stepdaughter in a different venue. The trial court instructed the jury that although the evidence could not be used to prove the defendant's predisposition to commit the crime charged, it was admissible to prove another fact in issue including "a motive, an intent, a plan, a knowledge, [identity], or absence of mistake or accident." Id. at 466. The Court found the instruction deficient because the trial court had failed to narrowly focus the jury's attention on the specific use of the other-crime evidence. Id. at 472.

In State v. Stevens, 115 N.J. 289, 293-97 (1989), the prosecution presented evidence that a police officer, charged with official misconduct and criminal coercion in connection with sexually motivated searches of several arrested women, had on previous occasions required female arrestees to undress or provide sexual favors. The State's purpose in presenting this evidence was to show that the defendant conducted the searches to gratify his sexual desire, which was an element of the crime charged. Id. at 305. The trial court instructed the jury that it could not use this evidence to deduce that the defendant was a bad person, but that the evidence could be used to show the defendant's intent toward the victims or his plan regarding young women coming under his control or his attitude toward the women or his state of mind toward the women with respect to his own sexual desires. Id. at 297. The Court found that the instruction was not adequate to clarify the narrow distinction between the permissible and impermissible uses of the other-crime evidence. Id. at 308-09.

In contrast, in State v. Cusick, 219 N.J. Super. 452, 467 (App. Div.), certif. denied, 109 N.J. 54 (1987), the court concluded that the limiting instruction given by the trial court was sufficiently detailed to apprise the jury of the proper use of other-crime evidence. The defendant was charged with sexually assaulting a child and the other-crime evidence involved the testimony of victims of a previous unrelated sexual assault. Id. at 464. The trial court instructed the jury:

[Y]ou may not take this evidence from [the witness] and conclude from it that the defendant . . . is a bad person, and thus has a disposition which shows that he is likely to have done the act which he is charged with, or to show a general predisposition of the defendant to commit bad acts . . . .

The rules of evidence do however, permit such testimony where such evidence relates to some other fact in issue here, including motive, including intent, including absence of mistake, or accident, or some other such issue. Here the evidence was admitted as it may bear on the issue of whether the alleged touching of [the victims] was accidental or it was a mistake. Likewise, it might also bear on the defendant's motive for allegedly touching the victims here. This is to obtain some sort of sexual gratification, or on the issue of his intention to touch the children, victims here. [Id. at 466.]

The judge's instruction in the matter at hand was more specific than the instructions found to be inadequate in Cofield, G.S., and Oliver. Unlike Cofield, the judge did not vaguely refer to the use of the evidence to prove "some other fact in issue," 127 N.J. at 333; unlike Oliver, the judge did not simply state that the evidence is permitted as it relates to "intent or plan," 133 N.J. at 157; and unlike G.S., the judge did not merely make reference to the generalities of N.J.R.E. 404(b), 145 N.J. at 466. Rather, the judge set forth the four specific incidents of abuse alleged by Kelly and explained that they could only be used as they related to the identity of Elijah's abuser or to demonstrate defendant's intent, motive, knowledge, or absence of mistake in regards to his treatment of Elijah.

With regard to identity, the judge set forth the requirement that the acts of abuse must be so unique and clearly identical as to earmark the crime as defendant's handiwork. Thus, the judge's explanation of how the evidence could be used to deduce identity was specific, clear and legally sound, and plainly went beyond the confines of N.J.S.A. 404(b).

The judge's instruction that the evidence could be used to demonstrate defendant's state of mind or "his intent, motive, knowledge or absence of any mistake or accident in regards to his treatment of the victim" was also more specific than the instructions in Cofield, G.S., and Oliver because it explained that defendant's actions must be related to his treatment of Kelly. It is less specific than the instruction approved in Cusick, however, because the Cusick court actually placed the evidence in a factual context. 219 N.J. Super. at 466-67. Here, the judge might have instructed the jury that evidence of defendant's abuse of Kelly could be used to determine whether his treatment of Kelly was a good-faith attempt at discipline. Perhaps the judge should have made this connection. Nevertheless, the judge did explain that the evidence could be used to determine intent in Parker's treatment of the victim.

The instruction here is perhaps most like the instruction in Stevens. The Stevens Court found that simply instructing that other-crime evidence could be used to show a defendant's intent towards his victims, as the court did in this case, was inadequate to clarify the narrow distinction between the permissible and impermissible uses of the evidence. 115 N.J. at 308-09. However, in Stevens the other-crime evidence was introduced solely to show intent, state of mind or plan. Here, the primary purpose of the other-crime evidence was to show identity. The instruction with regard to the use of the evidence to establish identity was specific and legally sound. Thus, this is not a situation where the jury was given no clear guidance as to how to use other-crime evidence. For that reason, Stevens does not provide a basis to find the limiting instructions in this case to be inadequate.

The instructions in the matter at hand are more like those in Cusick than those in Cofield, G.S., and Oliver. The judge clearly informed the jury that it could not use the other-crime evidence to deduce that Parker was a bad person or that he was likely to have committed the crime charged and specifically explained how the evidence could be used to establish identity.

The judge also explained that the evidence could be used to determine Parker's intent in his treatment of Elijah. For those reasons, Judge Subryan's instructions were sufficient to apprise the jury of the distinction between the permissible and impermissible uses of other-crime evidence.

Parker did not object to the adequacy of the judge's limiting instruction. Thus, assuming error, Parker must show that the error was "clearly capable of producing an unjust result." R. 2:10-2.

Plain error in the context of a jury charge is "[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." [State v. Torres, 183 N.J. 554, 564 (2005) (quoting State v. Jordan, 147 N.J. 409, 422, (1997)).]

In determining whether an error in an other-crime limiting instruction constitutes plain error, courts have considered such factors as: whether the trial court adequately cautioned the jury that the evidence could not be used to show criminal disposition; whether the prosecution or co-defendants relied heavily on the evidence; whether there is a real possibility the jury would have found the defendant not guilty absent the evidence; whether defendant had a fair opportunity to challenge the credibility of the evidence; and whether defendant was able to use the evidence to his advantage. State v. G.S., supra, 145 N.J. at 474-75; State v. Cofield, supra, 127 N.J. at 342; State v. Stevens, supra, 115 N.J. at 309.

In the matter at hand, on each of the three occasions that the judge repeated the limiting instruction, he clearly emphasized that the other-crime evidence could not be used to show Parker's predisposition to commit the crimes charged. Further, the prosecution did not rely heavily on this evidence. Kelly's description of defendant's abusive conduct toward her comprised only a small portion of her testimony and the prosecutor referred to this evidence only briefly in his closing statement. Moreover, defendant had an ample opportunity to cross-examine Kelly about this evidence. In fact, he used her other-crime testimony to impeach her credibility by producing affectionate notes in a greeting card that contradicted her claim that she was suffering constant abuse from defendant, and by producing testimony from Latoya McCall, Parker's other girlfriend, that contradicted Kelly's claim that she was beaten at the hotel when she first arrived in New Jersey.

Most importantly, there is no real possibility that the other-crime evidence caused the jury to reach a verdict it otherwise would not have reached.

The jury was charged with the elements of second-degree endangering the welfare of a child and with the elements of accomplice liability. It was informed that to find defendant guilty of second-degree endangering, the State must prove that 1) Elijah was a child; 2) defendant knowingly caused Elijah harm that would make him abused; 3) defendant knew that such conduct would cause Elijah harm that would make him abused; and 4) defendant had a legal duty for the care of Elijah or had assumed responsibility for the care of Elijah.*fn1 It was then given the definition of "abused child" as set forth in N.J.S.A. 9:6-1. The jury was also informed that defendant could be found responsible for Elijah's death both by his own conduct or as an accomplice to Kelly. It was instructed that to be accountable as an accomplice of another person the State must prove that defendant, with the purpose of promoting or facilitating the commission of the offense, 1) solicited the person to commit it; 2) aided, or attempted to aid the person in planning or committing it; or 3) having a legal duty to prevent the commission of the offense, failed to make proper efforts to do so.*fn2

There is no question that Parker assumed a responsibility for Elijah's care. He provided for the child's food and shelter, took him to the hospital when he was injured, and held him out to others as his son. The boy called Parker "daddy."

Thus, this element of second-degree endangering was clearly satisfied.

Parker told police investigators that he "whooped" Elijah with a belt, "popped" him in the back of the head, and made him stand in front of a fan until he shivered. These admissions, combined with Parker's responsibility for Elijah's care, are sufficient to support a finding of second-degree child endangerment, absent any of Kelly's testimony.

Moreover, Parker told investigators that he knew Kelly was beating Elijah because of the belt marks on the child's bedroom walls. Rather than stop the beatings or report Kelly to DYFS, however, Parker threw away the belt and painted over the marks. Thus, despite having a legal duty to prevent Elijah's abuse, Parker failed to make an effort to do so. These facts, which were uncontested by Parker, are clearly sufficient to support a finding of accomplice liability on the second-degree endangering charge.

Given the overwhelming evidence of defendant's guilt, any error in the judge's limiting instruction was not clearly capable of producing an unjust result. Since the instruction did not constitute plain error, it does not provide a basis to reverse defendant's conviction on the second-degree endangering charge.

IV.

Parker argues that the prosecutor "exceeded the bounds of propriety by inviting the jury to convict based on a general duty to society rather than on proof beyond a reasonable doubt." He complains that the prosecutor's exhortation to the jury to "protect the truth" was inappropriate and inflammatory, and tainted the jury's decision-making process. He maintains that the prosecutor's conduct was so egregious that it denied him his right to a fair trial.

The portions of the prosecution's summation to which Parker objects are as follow:

I think one of the tasks that you're going to have to undertake when you get back in that room and deliberate, you have to ask yourselves the very fundamental question of where do we begin, how do we start this process about bringing justice in this courtroom. And it is justice for a four year old little boy. It is justice for each and every one of us, because what happened here to this little boy should happen to no one, should happen to no one.

The prosecutor then went on to say:

Protect the truth. Protect the truth about what happened here. Do your job.

When you are done doing your job, when you are done protecting the truth, this case will forever be remembered by you. Ten years from now you'll remember about this month of your life, listening to what happened to this little boy.

Keep a couple of things in mind. Ten years from now Elijah deserved to be 16. He deserved to look forward to that moment when he gets his driver's license, when he graduates from high school, when he pursues what he wants to do for the rest of his life. He did not deserve this.

After you have protected the truth, after you move on from your verdict, think of Elijah this way. You're going to have these photographs, S-13A and S-13I. After you've done your job, think of him this way.

Think of him standing there with those little monkey and banana slippers he liked to wear. Think of him with that smile on his face. He deserves that. He deserves you to protect the truth.

Parker's counsel did not object to these remarks when they were made; the question of their propriety is raised for the first time on appeal.

"'It is well-established that prosecuting attorneys, within reasonable limitations, are afforded considerable leeway in making opening statements and summations.'" State v. DiFrisco, 137 N.J. 434, 474 (1994) (quoting State v. Williams, 113 N.J. 393, 447 (1988)). "So long as he stays within the evidence and the legitimate inferences therefrom the Prosecutor is entitled to wide latitude in his summation." State v. Mayberry, 52 N.J. 413, 437 (1968), cert. denied, 393 U.S. 1043, 89 S.Ct. 673, 21 L.Ed. 2d 593 (1969). "Indeed, prosecutors in criminal cases are expected to make vigorous and forceful closing arguments to juries." State v. Frost, 158 N.J. 76, 82 (1999).

A prosecutor's wide latitude, however, is not unfettered. Williams, supra, 113 N.J. at 447. "A prosecutor's remarks and actions must at all times be consistent with his or her duty to ensure that justice is achieved." Id. at 447-48. Thus, it as much a prosecutor's duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one. State v. Ramseur, supra, 106 N.J. at 320. For example, it has long been established that a prosecutor may not declare a personal belief in a defendant's guilt in such a manner as to lead the jury to believe that his or her opinion is based on something other than the evidence adduced at trial. Id. at 321. It is also inappropriate for a prosecutor to encourage a jury to "send a message" to the defendant or the community, because such arguments focus the jury's attention on matters extraneous to the facts of the case. State v. Rose, 112 N.J. 454, 519-21 (1988); State v. Hawk, 327 N.J. Super. 276, 282 (App. Div. 2000).

When reviewing a prosecutor's conduct, it is important to remember that criminal trials create a charged atmosphere that often makes it difficult for the prosecuting attorney to stay within the orbit of strict propriety. State v. Ramseur, supra, 106 N.J. at 320. "Prosecutorial misconduct is not ground for reversal of a criminal conviction unless the conduct was so egregious that it deprived defendant of a fair trial." Id. at 322.

"In determining whether prosecutorial misconduct is prejudicial and denied defendant a fair trial, we consider whether defense counsel made a timely and proper objection . . . ." Id. at 322-23. "If no objection is made, the remarks usually will not be deemed prejudicial." Id. at 323; accord State v. Wilson, 57 N.J. 39, 50 (1970).

In addition to giving the trial judge an opportunity to take corrective action, a timely objection signifies that the defense believes itself to have been prejudiced by the prosecutor's remarks. Conversely, a failure to object . . . indicates that in the atmosphere of the trial the defense did not believe that the prosecutor's remarks were prejudicial. [State v. Wilson, supra, at 50-51; accord Frost, supra, 158 N.J. at 84.]

Because defense counsel here failed to object to the summation, the prosecutor's remarks would only provide grounds for reversal if the court's failure to issue sua sponte corrective instructions constituted plain error. Ramseur, supra, 106 N.J. at 323.

The prosecutor's remarks in this case did not amount to plain error. The statements of which Parker complains did not misrepresent or distort the evidence; did not imply that the prosecutor's belief in defendant's guilt was based on facts not in the record; did not encourage the jury to send a message to society; and, when read in context, was not egregious or inflammatory. Rather, the prosecutor's summation amounted to fair comment on the defense counsel's closing argument.

Parker's attorney's summation was strident and vitriolic. He made Kelly's credibility the centerpiece of his argument, repeatedly calling her a "devil" and a "liar." He told the jury that it had a "very specific job" to do:

You are not here as the arbiters of justice for Elijah Kelly; that's not your job. I submit to you that boy had no justice in his life. I submit to you that boy had no justice from the moment he was born from the woman of that devil [sic]; a devil that could take the stand, testify for days and days and not even shed a tear, not even change the affectation in her voice. There is no other conclusion to draw but that.

He closed his summation by telling the jury:

When you get up after the Judge charges you and you walk into that room, you close that door on the outside and you close the door on the inside, don't look around for justice for this child; it's not in there. Do your job. Tell the State they did not do theirs. . . . Do your job.

In light of these statements by Parker's counsel, the prosecutor's response was reasonable. He alluded to the defense themes of "do your job" and "justice" in reminding the jury that the issue in this case involved the abuse of a young child. He defended the credibility of his witness by telling the jurors that they were the ultimate arbiters of the truth.

"Generally, remarks by a prosecutor, made in response to remarks by opposing counsel, are harmless." State v. C.H., 264 N.J. Super. 112, 135 (App. Div.), certif. denied, 134 N.J. 479 (1993). Because the remarks to which defendant objects were brief, within the bounds of the evidence, and responsive to the Parker's counsel's summation, they did not deny Parker his right to a fair trial and do not warrant a reversal of his conviction.

Affirmed as to the verdict; remanded for resentencing.


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