On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 05-05-592-I.
The opinion of the court was delivered by: Collester, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Collester, C.S. Fisher and C.L. Miniman.
Pursuant to leave granted, the State appeals from the February 8, 2007, order of the trial court denying its motion in limine for admission of certain evidence under the exception to N.J.R.E. 404(b) and as res gestae evidence, and from the March 23, 2007, order denying the State's motion for reconsideration. We affirm in part and reverse in part.
Based on the plenary hearing and the State's offer of proof, the salient facts are as follows. Defendant Philip Castagna was Chief of Police of the City of Bordentown when he married Joyce Leopold in 1998. Joyce testified that on June 8, 2003 when she returned from her daughter's dance recital, she discovered that defendant had packed a suitcase and left the home. She called his mobile telephone, but there was no response. Within a day or so she changed the locks on the doors. Defendant returned to the home on June 13, 2003, and confronted Joyce outside. They argued, he accused her of cheating on him, and Joyce went in the house and locked the door. Defendant demanded to come inside and told her it was illegal to lock him out. Joyce testified defendant pounded on the back sliding doors and yelled, "I'm going to get you and that goddamn little bitch of yours." The following day Joyce noticed the door knob on the door from the house to the garage was missing. That evening she went to the police department and filed a complaint under the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. A temporary restraining order (TRO) issued that night which prohibited defendant from returning to the marital home and from "making or causing anyone else to make an harassing communication" to his wife.
On the evening of July 2, 2003, defendant visited Joyce's uncle, Santo Celia, with whom defendant had a good relationship. At the hearing, Celia testified that defendant told him that he had to surrender his police weapon because of the TRO, and he was afraid he would lose his job unless Joyce withdrew the complaint. He said he worked hard all his life and that if Joyce "continued fucking with my rights and my pension, I'll lose everything." He said he still loved Joyce and needed Celia's help in conveying that to her. Later defendant became more agitated and said, "If you don't talk some sense into her you gonna see me on the front page of the Trenton Times." Celia responded, "Philip, I'm going to pretend I didn't hear that." Defendant at one point said, "[T]hey took my guns away, but I can get another one." Celia again told defendant, "I'm going to pretend I didn't hear that." Celia testified that while he knew defendant was agitated, he did not think defendant would do anything to Joyce or himself. At the end of the conversation Celia told defendant he would do what he could to help but could not promise anything. After talking to his wife, he decided not to get further involved.
On July 4, 2003, Joyce's home was slightly damaged by a fire, which was determined to be arson. A neighbor reported seeing an unidentified man with a gasoline can running from Joyce's yard and driving off in a van.
Four days later, on July 8, 2003, Celia's wife told Joyce that defendant came to her house and talked with her husband about their marital problems. The following day Joyce called Celia to learn more about his conversation with defendant. Perceiving some of defendant's comments to Celia as threats against her, Joyce signed a criminal complaint against defendant on July 12, 2003, alleging terroristic threats, N.J.S.A. 2C:12-3a, and fourth-degree contempt for violating the temporary restraining order, N.J.S.A. 2C:29-9b. Defendant was suspended as Bordentown police chief on July 30, 2003. A final restraining order was entered pursuant to Joyce's domestic violence complaint on August 5, 2003.
The prosecutor downgraded the charges in Joyce's criminal complaint to the disorderly persons offense of harassment, N.J.S.A. 2C:33-4a, and contempt by violating the TRO, N.J.S.A. 2C:29-9b, and the matter was assigned for trial to the Burlington County Family Court. After a bench trial, on May 7, 2004, defendant was found guilty of both charges. He was sentenced to a one-year probationary term, assessed a $1,000 fine in addition to a VCCB assessment, a SNSF assessment, and a penalty under the domestic violence statute. The sentencing judge further ordered a forfeiture of defendant's public office as Bordentown Chief of Police and a permanent debarment from future public office pursuant to N.J.S.A. 2C:51-2(a)(2) and (d). Defendant appealed his conviction and sentence.
While defendant's appeal was pending, Gary Hall, described as defendant's neighbor and friend, came forward to talk to the members of the Burlington County Prosecutor's Office. He told investigators he set the July 4, 2003 fire at defendant's request and that defendant later asked him to help him kill Joyce. Hall told investigators he did not want to be involved in a murder, and he agreed to cooperate and "wore a wire" to record conversations with defendant.
Defendant was indicted on May 2, 2005, for conspiracy to commit murder, N.J.S.A. 2C:5-2a(1) and N.J.S.A. 2C:11-3a(1); aggravated arson, N.J.S.A. 2C:17-1a(2); and two counts of contempt, N.J.S.A. 2C:29-9.*fn1 Over a year later, on August 21, 2006, while the trial on the indictment was still pending, we issued an opinion reversing defendant's disorderly persons convictions on grounds that the evidence was insufficient for a finding of guilt beyond a reasonable doubt. State v. Castagna, 387 N.J. Super. 598, 608-09 (App. Div.), cert. denied, 188 N.J. 577 (2006).
The State theorizes that defendant conspired to commit arson and kill his wife because she filed a domestic violence complaint which resulted in a TRO and later filed criminal charges which led to his suspension, conviction, sentence, and forfeiture of his public office. The State's motion in limine was for a determination that the following evidence was admissible under N.J.R.E. 404(b) to prove defendant's motive and, alternatively, as res gestae evidence of the crimes charged: (1) the incident of alleged domestic violence on June 13, 2003; (2) the TRO issued on June 15, 2003; (3) the July 2, 2003 conversation between defendant and Celia; (4) the criminal complaint signed by Joyce on July 12, 2003; (5) defendant's suspension from his job as chief of police on July 30, 2003; (6) the final restraining order issued on August 5, 2003; (7) defendant's disorderly persons conviction on May 7, 2004; and (8) the sentence mandating forfeiture of his job as police chief and prohibition of future public employment. The trial judge held that none of the proffered evidence was admissible because in each instance the probative value was outweighed by its apparent prejudice and, furthermore, other less prejudicial evidence was available to the State through the testimony of the co-conspirator Gary Hall. We granted leave to appeal on these evidential issues and stayed the trial pending our resolution.
It is a cardinal principle that evidence with probative value to a material issue is relevant. N.J.R.E. 401; State v. Hutchins, 241 N.J. Super. 353, 358 (App. Div. 1990). And all relevant evidence is admissible unless excluded by another evidential rule or statute. N.J.R.E. 402; State v. Muhammad, 359 N.J. Super. 361, 368 (App. Div.), certif. denied, 178 N.J. 36 (2003). N.J.R.E. 403 and N.J.R.E. 404(b) are related evidential rules that may exclude relevant evidence. Rule 403 is a residual rule to be considered after all other exclusionary principles have been resolved in favor of admissibility. It reads as follows:
Except as otherwise provided by these rules or other law, relevant evidence may be excluded if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence.
Rule 403(a) requires the balancing or weighing of probative value against undue prejudice and places the burden on a party urging exclusion to show that the prejudice substantially outweighs the probative value to justify exclusion of the evidence. See State v. Long, 173 N.J. 138, 163-65 (2002); State v. Morton, 155 N.J. 383, 453 (1998), cert. denied, 532 U.S. 931, 121 S.Ct. 1380, 149 L.Ed. 2d 306 (2001).
Rule 404 generally proscribes admission of evidence of a person's character or a trait of character. Subsection (b) specifically excludes evidence of an accused's "other crimes, wrongs or acts" to prove that the defendant is in general disposed toward criminal acts or wrongful behavior or that he or she is a "bad person" who must be guilty of the crime charged. See generally State v. Reddish, 181 N.J. 553, 608 (2004); State v. Nance, 148 N.J. 376, 386 (1997). However, so-called "other crimes" are admissible for certain specified purposes. The Rule reads as follows:
[E]vidence 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.
Even when the evidential proffer relates to a permissible purpose under Rule 404(b) and is both relevant and material to a fact in issue, the trial judge must nonetheless engage in "a careful and pragmatic evaluation" focusing on "the specific context in which the evidence is offered" by weighing its probative value against its apparent or undue prejudice. State v. Stevens, 115 N.J. 289, 300 (1989); State v. Harris, 105 N.J. Super. 319 (App. Div. 1969), certif. denied, 59 N.J. 361 (1971). Rule 404(b) is more restrictive and requires more of a "searching inquiry" than Rule 403, which precludes relevant evidence only if the risk of undue prejudice "substantially" outweighs the probative value. Furthermore, unlike Rule 403, it is the party seeking to admit other-crimes evidence who bears the burden under Rule 404(b) of establishing that the probative value of other-crimes evidence is not outweighed by its apparent prejudice. Reddish, supra, 181 N.J. at 608.
To assist trial judges in considering admission or exclusion of Rule 404(b) evidence our Supreme Court developed and promulgated a four-pronged test for admissibility in ...