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State v. Barden

June 24, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DIARA BARDEN, DEFENDANT-APPELLANT.



On certification to the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

(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).

The issue in this appeal is whether testimony that defendant sold drugs to the co-defendant over a six-month period prior to the robbery was improperly admitted by the trial court under either a theory of res gestae or N.J.R.E. 404(b).

The State presented the following evidence at trial. For six months prior to September 2003, Andrea Gendron bought crack cocaine from defendant about thirty times. On September 7, 2003, she asked him for some crack cocaine and promised to pay him later. He declined but suggested that they rob one of Gendron's clients. She agreed, selected Robert Brown as the victim, and called Robert about seeing him. Defendant then drove Gendron to Robert's house in a Mustang. On the way, they stopped at a house on Olden Avenue, where defendant retrieved a handgun. Before entering Robert's house on Homecrest Avenue, Gendron and defendant agreed to tell Robert that defendant was her bodyguard. Robert refused to allow defendant inside, so he returned to his car while Robert and Gendron went upstairs. Soon thereafter, Gendron heard defendant beeping the car horn. She went outside and returned with defendant, and they went inside. Robert asked defendant to leave. As he escorted defendant to the door, defendant drew a gun and told Robert to call his brother, Randall, who was also in the house. When Randall entered the room, defendant was distracted and Robert grabbed his wrist. Randall joined the struggle. Robert eventually forced defendant to drop the gun outside a window. Defendant broke free and fled from the house with Gendron. Defendant was eventually apprehended and charged with robbery.

Defense witnesses presented a different picture. According to defendant, he and some relatives were sitting outside of his grandmother's house in Trenton. They saw an unfamiliar, young white girl walking down the street, looking lost. The girl, later identified as Gendron, asked them for a ride. Defendant eventually agreed, and they left in a Mustang and drove to Homecrest Avenue. There, Gendron asked defendant to wait while she went inside. After ten minutes, defendant blew the horn. Gendron motioned for him to come inside. He did, and then Robert came downstairs and yelled at defendant. They exchanged insults. When defendant turned to leave, Robert hit him in the head. Defendant fought back but another man joined in the fight. According to defendant, Robert displayed the gun, which Robert dropped out a window. Defendant fled from the house and drove away with Gendron. He claimed he never saw Gendron before that day and denied having a gun. He also denied discussing with Gendron the idea of committing a robbery.

The State called Detective Holt to rebut much of defendant's testimony. Holt testified that defendant came to the police station on September 12, 2003. Holt asked defendant if he knew anything about a robbery on Homecrest Avenue involving Gendron. Defendant told Holt that he drove to a house with Gendron to see "some guy" and while inside, the man's brother came out of the kitchen with a gun; that a fight broke out and the gun fell out a window; and that he and Gendron then fled. The State also read a statement obtained from Tom Sliwinski, Robert's neighbor. Sliwinski had stated that he heard an argument at Robert's house, went outside to investigate, and through a window saw the two brothers fighting a black man. Sliwinski ran home, and while he was on the phone with police, he heard Robert or Randall yell, "He has a gun." Sliwinski saw a gun fall from the window. He picked up the gun and then saw a black male and a petite, white female run from Robert's home and drive away in a Mustang.

The jury found defendant guilty of robbery, attempted theft, aggravated assault, and weapons offenses. The trial court sentenced defendant to fifteen years in prison.

The trial court had allowed Gendron's testimony, that defendant had previously sold her drugs about thirty times, under a theory of res gestae. In an unpublished opinion, the Appellate Division affirmed on different grounds. The panel did not address whether the testimony was improperly admitted as res gestae. Rather, under State v. Cofield, 127 N.J. 328 (1992), the panel determined that the other-crimes evidence was admissible under N.J.R.E. 404(b) to demonstrate defendant's motives for participating in the robbery and how the scheme arose from his refusal to "loan" drugs to Gendron. The Supreme Court granted defendant's petition for certification "limited solely to the question of whether testimony that defendant sold drugs to the co-defendant over a six-month period prior to the robbery of September 7, 2003, was improperly admitted by the trial court under either a theory of res gestae or N.J.R.E. 404(b)." 192 N.J. 75 (2007).

HELD: The evidence that defendant sold drugs to the co-defendant over a six-month period prior to the robbery was evidence of other crimes that was unduly prejudicial and should have been excluded.

1. Under N.J.R.E. 404(b), evidence of other crimes is excluded if it is offered solely to prove criminal disposition. If it is offered to prove other facts in issue, such as motive or intent, it may be admissible if it satisfies the Cofield test. Under that four-part test, the evidence of the other crime must be relevant to a material issue, similar in kind to the offense charged, and clear and convincing; and the probative value of the evidence must not be outweighed by its apparent prejudice. The "similar in kind" prong may be eliminated when it serves no beneficial purpose, such as when the other-crimes evidence is relevant only to the defendant's state of mind. (pp. 10-12)

2. Under the fourth prong of the Cofield test, the trial court must carefully evaluate the evidence to determine whether its probative worth is outweighed by its potential for undue prejudice. In the weighing process, the court should consider whether other evidence is available to prove the same point. (pp. 12-13)

3. If other-crimes evidence is admitted, to reduce its inherent prejudice the trial court must sanitize it by confining its admissibility to those facts reasonably necessary for the probative purpose for which it is admitted. The court also must carefully explain to the jury, with sufficient reference to the facts, the permitted and prohibited purposes of the evidence. (pp. 13-14)

4. The trial court allowed Gendron's testimony that she bought crack cocaine from defendant about thirty times; that defendant knew she was addicted to crack cocaine; that their relationship was based solely on buying drugs; and that they had agreed to rob Robert to get money for Gendron to buy drugs from defendant. The trial court found that the other-crimes evidence was not similar in kind to the crimes charged and therefore did not satisfy the second Cofield prong. Thus, the trial court decided not to admit the evidence under Rule 404(b), but found it admissible under a theory of res gestae. The Court agrees with the Appellate Division that under the circumstances of this case, the second prong of the Cofield test served no beneficial purpose and should not have been considered. (pp. 15-16)

5. The fourth Cofield prong, whether the prejudicial effect outweighs its probative value, requires a careful weighing of competing interests. If less prejudicial evidence can establish the same issue, the other-crimes evidence should be excluded. Here, the evidence that defendant and Gendron planned the robbery and that Gendron and defendant had known one another for some time was relevant and admissible. However, the testimony of six months of drug transactions was not needed to show the motive and intent for the robbery. That could have been shown by testimony regarding Gendron's drug addiction; that she sought drugs on the day of the robbery; and that she and defendant planned the robbery to obtain money to buy drugs. The evidence that defendant sold drugs to Gendron thirty times prior to the offense was unduly prejudicial and should have been excluded. (pp. 16-17)

6. Despite the trial court's diligence in giving limiting instructions to the jury on the admission of the other-crimes evidence, the instructions were incomplete. The charge failed to focus the jury precisely on the permissible uses of the other-crime evidence in the context of the facts of this case and the disputed issues. The jury should have been instructed that the evidence was limited solely to establish defendant's motive and intent. In combination with the error in the admission of the other-crimes evidence and the shortcomings in the jury charge, there is a reasonable doubt whether the error led the jury to a result it otherwise might not have reached. (pp. 17-21)

7. The Court does not decide whether res gestae should remain a viable concept. Even if res gestae remains viable, it should not have formed the basis for the admission of evidence that Gendron bought drugs from defendant for six months. That highly prejudicial evidence was not needed to establish defendant's motive and intent. (pp. 21-22)

The judgment of the Appellate Division is REVERSED and the matter is REMANDED for a new trial.

JUSTICE ALBIN filed a separate CONCURRING opinion, in which JUSTICE LONG joins, expressing the view that, as stated in State v. Kemp, __ N.J. __ (2008) (Albin, J. concurring), the Court should abandon the discredited doctrine of res gestae as an independent basis for the admission of evidence.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, RIVERA-SOTO and HOENS join in JUSTICE WALLACE's opinion. JUSTICE ALBIN filed a separate concurring opinion in which JUSTICE LONG joins.

The opinion of the court was delivered by: Justice Wallace, Jr.

Argued February 19, 2008

In this case, the trial court admitted evidence that defendant sold drugs to co-defendant over a six-month period prior to the robbery under a theory of res gestae. On appeal, the Appellate Division affirmed, but held that the other-crimes evidence was properly admitted under N.J.R.E. 404(b) to show defendant's motive with respect to the crimes charged and that the corresponding limiting instruction was appropriate. We granted certification "limited solely to the question of whether testimony that defendant sold drugs to the co-defendant over a six-month period prior to the robbery of September 7, 2003, was improperly admitted by the trial court under either a theory of res gestae or N.J.R.E. 404(b)." We now reverse. We conclude that the evidence that defendant sold drugs to the co-defendant over a six-month period was evidence of other crimes that was unduly prejudicial and should have been excluded.

I.

A.

The State presented the following evidence at trial. Sixteen-year-old Andrea Gendron was addicted to crack cocaine since mid-2003. She supported her drug habit by means of prostitution, theft, and burglary. Gendron purchased crack cocaine from defendant Diara Barden on approximately thirty occasions for six months prior to September 2003.

On Sunday, September 7, 2003, Gendron asked defendant to give her some crack cocaine and promised to pay him later because she had no money. Defendant declined but suggested that they rob one of Gendron's clients. Gendron agreed and selected Robert Brown as the victim because he kept money in a safe in his bedroom. She ...


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