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State v. Gillispie

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 18, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DWAYNE GILLISPIE, DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
GREGORY BUTTLER, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 04-07-1211.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued (A-0799-05T4) December 2, 2008

Submitted (A-2318-05T4) December 2, 2008

Before Judges Fuentes, Gilroy and Chambers.

In these back to back appeals, defendants Dwayne Gillispie and Gregory Buttler, appeal their convictions for offenses arising out of a double homicide that occurred in Barnegat, New Jersey. Both defendants were indicted for two capital murders, among other charges. Their cases were severed for trial. The jury found Gillispie guilty of all charges, but in the penalty phase, the jury did not impose the death penalty. The capital counts against Buttler were dismissed, and he was convicted by a jury of the remaining charges, including two counts of purposeful murder.

On appeal, defendants raise numerous issues, including the claim that the trial court erred in admitting into evidence certain other-crimes evidence regarding an earlier armed robbery involving defendants in a barbershop in the Bronx. Since ballistic evidence established that the same gun was used in both the Bronx barbershop robbery and the Barnegat killings, evidence of defendants' involvement in the Bronx barbershop robbery was properly admitted on the issue of identity. However because the evidence was not properly sanitized pursuant to State v. Barden, 195 N.J. 375, 390 (2008), and State v. Collier, 316 N.J. Super. 181 (App. Div. 1998), aff'd, 162 N.J. 27 (1999), unnecessary and highly prejudicial evidence was presented to the jury. Accordingly, we reverse and remand.

I.

On November 29, 2000, when Christine Staton did not appear for work, three co-workers went to her home in Barnegat and found the front door ajar, her condominium unit ransacked, and in an upstairs bedroom the bodies of Staton and her son, Lonell Michael. The bodies were bound and tied to each other, each with a bullet hole in the back of the head, and Staton's throat slashed.

The main narrative testimony at the trials tying defendants to these events was provided by their accomplice, Keith Mercer, who testified against them pursuant to a plea arrangement. According to Mercer, Buttler had contacted him a number of times with a plan to rob drug dealers. Mercer first participated with Gillispie and Buttler in a robbery of the barbershop in the Bronx. That robbery resulted in the shooting of three people and is the controversial other-crimes evidence in this case.

Mercer went on to explain that a few weeks later, on November 28, 2000, Gillispie, Buttler, and he drove to Barnegat, New Jersey in Buttler's black Lexus which had Virginia license plates. They had arranged to sell some guns to a drug dealer there known to Gillispie, and planned to later rob the dealer of the money. The drug dealer was Lonell Michael, who met the three at a Country Farms store in Barnegat. After seeing the guns, Michael directed the defendants and Mercer to his mother's home to pick up the money.

When Michael went inside to obtain the money, defendants decided that there was no reason to wait to rob him later because he had brought them to the location where he kept his money. When Michael exited the house, the three forced him back into the house where they encountered Michael's mother, Staton. Defendants tied up Michael and his mother and searched the house for money. Believing that more money was hidden in the house, Gillispie began to slice Staton's throat while Buttler forced Michael to watch in an attempt to induce Michael to divulge the whereabouts of more cash. When this proved unsuccessful and after further searches of the house, they were about to leave when, according to Mercer, Gillispie indicated that the two had to be killed. Buttler handed Gillispie pillows, and Gillispie shot Michael and then Staton in the head.

Michael's girlfriend testified that on the evening of the killings, November 28, 2000, Michael spoke to someone on his cell phone. He then requested her to drive him to the Country Farms in Barnegat. She did so and saw Michael meet a black man standing by a dark colored car with Virginia license plates. She left and never saw Michael alive again.

The police traced the last call on Michael's cell phone to a phone owned by Shawnta Watkins in the Bronx, who in turn indicated that she had purchased the phone for her sister Janyce Watkins. As a result, Janyce Watkins was requested to come to the police station in the Bronx to be interviewed by the New Jersey detectives. She arrived there in a black Lexus with Virginia license plates driven by defendant Buttler. She was wearing one of Staton's rings.

According to Watkins, in mid-November, defendants discussed robbing a drug dealer Gillispie knew in New Jersey, and agreed that the person would have to be killed because the person could identify Gillispie. She testified that when Buttler gave her the ring, he indicated that he and Gillispie had obtained it in a robbery in New Jersey where they had tied up and killed some people.

The telephone number of Michael Kreybig also appeared in Michael's cell phone. In his testimony, Kreybig stated that he sold drugs for Gillispie and that on November 28, 2000, he met Gillispie in the vicinity of Barnegat and paid him $800. At the time, Gillispie was in a black Lexus with two other males.

Sol Cepero testified at Gillispie's trial only. She lived in the same apartment as defendant Gillispie, and testified that around 1:30 a.m. on the night of the murders, Gillispie and two others went into Gillispie's room. After the two left, Gillispie showed her some rings; one of those rings she identified as Staton's ring later recovered from Gillispie's girlfriend. According to Cepero, when Gillispie awoke in the morning, he accused her of stealing the rings, and said to her "I had to put bullet holes in motherfuckers . . . for the rings."

The other-crimes evidence consisted of testimony that defendants, along with Mercer, had decided to rob the Bronx barbershop on November 8, 2000, three weeks before the killings in New Jersey. Believing that a shipment of marijuana was in the basement of the barbershop, Gillispie and Mercer entered the shop with guns, while defendant Buttler and Watkins waited in the black Lexus. Due to the unexpected movement of a man in the barbershop, Gillispie fired his gun a number of times, injuring three people, one seriously. Defendants fled, obtaining no money or drugs from this incident.

When interviewed by Officer Kevin Mojica of the New York City Police Department, Gillispie gave a statement admitting to his role in the Bronx robbery and indicating that he had fired the gun. He did not identify the others involved and hence did not implicate Buttler in this crime. When Mojica finished questioning Gillispie about the Bronx barbershop robbery, he told Gillispie that detectives from New Jersey were there to speak to him. Gillispie then said "probably the same gun was used." When Mojica told him to talk to the detectives from New Jersey, Gillispie said: "Tell Jersey the guy you locked up is the guy who shot the people in New Jersey," pointing at Mojica and himself.

For the Barnegat crimes, defendants were each charged with first-degree conspiracy to commit murder, N.J.S.A. 2C:5-2 (count one); second-degree conspiracy to commit armed robbery, N.J.S.A. 2C:5-2 (count two); two counts of capital murder, N.J.S.A. 2C:11-3(a)(1) and (2) (counts three and four for Buttler, counts five and six for Gillispie); two counts of first-degree felony murder, N.J.S.A. 2C:11-3(a)(3) (counts seven and eight); two counts of first-degree robbery, N.J.S.A. 2C:15-1 and N.J.S.A. 2C:2-6 (counts nine and ten); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count eleven for Buttler and count twelve for Gillispie); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count thirteen for Buttler and count fourteen for Gillispie); two counts of second-degree burglary, N.J.S.A. 2C:18-2 and N.J.S.A. 2C:2-6 (counts fifteen and sixteen); and third-degree theft, N.J.S.A. 2C:20-3 and N.J.S.A. 2C:2-6 (count seventeen).*fn1

After the court conducted certain pretrial proceedings jointly, it severed the cases against defendants. The capital counts against Buttler only were dismissed. Gillispie who was tried first, was found guilty of all charges, but in the penalty phase, the jury could not unanimously agree. Buttler was found guilty of all remaining charges against him, including two counts of purposeful murder.

Gillispie received an aggregate sentence of two consecutive terms of life imprisonment without parole for the capital murders of Staton and Michael (counts five and six). He was sentenced to five years of imprisonment for unlawful possession of a weapon (count fourteen), and ten years on the two burglary counts (counts fifteen and sixteen); the sentences on counts fourteen, fifteen, and sixteen run concurrent with one another, but consecutive to the second life sentence.

Buttler received an aggregate sentence of two consecutive terms of life imprisonment for the murders of Staton and Michael (counts three and four) with thirty years of parole ineligibility on each count. He was sentenced to a term of five years imprisonment for unlawful possession of a weapon (count thirteen), and to a term of ten years on each count for burglary (counts fifteen and sixteen). The sentences on counts thirteen, fifteen, and sixteen run concurrent to each other, but consecutive to counts three and four.

On appeal defendant Gillispie raises the following points:

POINT I ADMITTING EVIDENCE OF THE NOVEMBER 9, 2000, BRONX, NEW YORK BARBERSHOP ARMED ROBBERY CONSTITUTED AN ABUSE OF JUDICIAL DISCRETION BECAUSE THE STATE FAILED TO PROVE THE FOUR PRONGS OF THE STATE V. COFIELD*fn2 TEST.

POINT II THE TRIAL COURT ABUSED ITS JUDICIAL DISCRETION AND VIOLATED THE DEFENDANT'S SIXTH AMENDMENT RIGHTS TO A TRIAL BY AN IMPARTIAL JURY AND TO EFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO COMPLY WITH THE JURY'S REQUEST FOR A READBACK OF DEFENSE COUNSEL'S OPENING STATEMENT AND SUMMATION.

POINT III THE DEFENDANT'S ORAL STATEMENTS, "PROBABLY THE SAME GUN WAS USED," AND "TELL JERSEY THE GUY YOU LOCKED UP IS THE GUY WHO DID THE SHOOTING IN JERSEY," MADE TO NEW YORK CITY POLICE DETECTIVE MOJICA SHOULD HAVE BEEN SUPPRESSED BECAUSE THE POLICE ENGAGED IN "UNFAIR MEANS" AND BECAUSE THE DEFENDANT WAS NOT READVISED OF HIS MIRANDA RIGHTS WHEN THE TOPIC OF THE "INCIDENT" IN NEW JERSEY WAS BROUGHT UP (NOT RAISED BELOW).

POINT IV THE TRIAL COURT'S CONGRATULATORY COMMENTS MADE TO SERGEANT DUFFY IN THE PRESENCE OF THE JURY DEPRIVED THE DEFENDANT OF A FAIR TRIAL BECAUSE IT AMOUNTED TO A JUDICIAL ENDORSEMENT OF THE OFFICER'S CREDIBILITY (NOT RAISED BELOW).

POINT V THE TRIAL COURT COMMITTED PLAIN ERROR IN IT'S [sic] JURY CHARGE (NOT RAISED BELOW).

(A) THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO SPECIFICALLY INSTRUCT THE JURY THAT IN ASSESSING THE CREDIBILITY OF KEITH MERCER IT MUST TAKE INTO ACCOUNT THE PLEA AGREEMENT THAT HE ENTERED INTO WITH THE PROSECUTOR'S OFFICE (NOT RAISED BELOW).

(B) THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO SPECIFICALLY INSTRUCT THE JURY THAT KEITH MERCER'S GUILTY PLEA CANNOT BE USED AS SUBSTANTIVE EVIDENCE OF THE DEFENDANT'S GUILT (NOT RAISED BELOW).

(C) THE TRIAL COURT COMMITTED PLAIN ERROR BY INSTRUCTING THE JURY TO CONSIDER THE "INNOCENCE OR GUILT" OF THE DEFENDANT (NOT RAISED BELOW).

(D) THE TRIAL COURT ERRONEOUSLY INSTRUCTED THE JURY TO CONSIDER A CAPITAL OFFENSE AGGRAVATING FACTOR IN ITS CHARGE ON NON-CAPITAL MURDER.

(E) THE CUMULATIVE EFFECT OF THE ERRORS IN THE TRIAL COURT'S JURY INSTRUCTIONS WARRANT REVERSAL OF THE DEFENDANT'S CONVICTIONS (NOT RAISED BELOW).

POINT VI THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BY THE PROSECUTOR'S KNOWING VIOLATION OF DISCOVERY.

POINT VII THE AGGREGATE CUSTODIAL SENTENCE OF TWO LIFE SENTENCES WITHOUT PAROLE PLUS TEN YEARS SUBJECT TO THE NERA*fn3 PERIOD OF PAROLE INELIGIBILITY WAS MANIFESTLY EXCESSIVE AND VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER BLAKELY V. WASHINGTON*fn4 AND STATE*fn5 V. NATALE.

(A) IMPOSITION OF BASE SENTENCES ON THE DEFENDANT'S CONVICTIONS FOR UNLAWFUL POSSESSION OF A WEAPON ON COUNT FOURTEEN AND FOR BURGLARY ON COUNTS FIFTEEN AND SIXTEEN THAT EXCEEDED THE STATUTORILY AUTHORIZED TERMS FOR CRIMES OF THE SECOND AND THIRD DEGREE WERE MANIFESTLY EXCESSIVE.

(B) THE SENTENCES IMPOSED ON THE DEFENDANT'S CONVICTIONS ON COUNTS FOURTEEN, FIFTEEN, AND SIXTEEN VIOLATED BLAKELY V. WASHINGTON AND STATE V. NATALE.

(C) THE TRIAL COURT ABUSED ITS DISCRETION IN RUNNING THE SENTENCES IMPOSED ON COUNTS FIVE, SIX, FOURTEEN, FIFTEEN, AND SIXTEEN CONSECUTIVELY.

On appeal defendant Buttler raises the following points:

Point 1 Permitting the jury to hear that defendant was involved in a Bronx barbershop robbery violated Evidence Rule 404(b) and deprived defendant of his right to a fair trial on the charges below.

Point 2 Even if the other-crimes evidence was admissible, the jury instruction on how to use the evidence was insufficient and prejudicial (plain error).

Point 3 The accomplice liability charge was insufficient because it failed to tell the jury how the concept related to the lesser-included offenses of aggravated and reckless manslaughter (plain error).

Point 4 The trial court erred and violated defendant's state and federal confrontation rights in foreclosing defense counsel from impeaching Keith Mercer, the alleged accomplice and primary State witness, about his involvement with drugs at the time of the Barnegat shootings.

Point 5 Defendant's sentence is excessive.

II

Defendants contend that the trial court erred in allowing the State to introduce evidence of the Bronx barbershop robbery. The State maintains that evidence of the Bronx barbershop robbery was admissible on the issues of identity, plan, and motive.

Prior to the introduction of this evidence, the trial court conducted a N.J.R.E. 104 hearing to determine the admissibility of evidence about the Bronx barbershop robbery. Over the objections of the defense attorneys for both defendants, the trial court determined that the barbershop robbery was admissible on the issues of identity, plan, and motive and so instructed the jury.

At trial, the State introduced testimony regarding the details of the Bronx barbershop robbery which had occurred about three weeks before the slayings in Barnegat. The jury learned that defendants, along with Mercer, planned to enter the barbershop with guns and seize marijuana they believed to be located in the basement. While Buttler and Watkins waited in Buttler's black Lexus outside, Mercer and Gillispie entered the barbershop, pulled out their guns, and directed everyone inside to the rear. When one customer came near Gillispie, Gillispie opened fire hitting three people, one of whom was seriously injured. Gillispie and Mercer fled the barbershop without taking any money or drugs. Officer Mojica testified that when he arrived at the scene, the emergency medical personnel were attending to the victims. One victim had been shot four times, and the other two had been shot in the lower extremities. He identified one piece of ballistic evidence, a copper round, that he recovered when it rolled out of the body of the seriously wounded victim as the victim was being moved by emergency personnel.

In our review of whether this other-crimes evidence was properly admitted into evidence, we give "great deference" to the determination of the trial court, and will reverse only where we find a "clear error of judgment." State v. Barden, supra, 195 N.J. at 390-91. The admission of other-crimes evidence is left to the sound discretion of the trial court because it is in the best position to perform the balancing necessary under the Cofield*fn6 test due to "its intimate knowledge of the case." State v. Covell, 157 N.J. 554, 564 (1999). We will not interfere with the decision, unless we find an abuse of that discretion. Ibid.

The admission of other-crimes evidence is governed by N.J.R.E. 404(b) which prohibits the admission of such evidence "to prove the disposition of a person in order to show that such person acted in conformity therewith." N.J.R.E. 404(b). However, the rule permits admission of other-crimes evidence "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." Ibid. The rule is designed "to strike a balance between the prejudice to a defendant that is inherent in other-crimes evidence and the recognition that the evidence may be highly relevant to prove a defendant's guilt of the crime charged." State v. Barden, supra, 195 N.J. at 388.

Due to its "unique tendency to turn a jury against the defendant," the admission of other-crimes evidence must be handled cautiously. State v. Reddish, 181 N.J. 553, 608 (2004) (quoting State v. Stevens, 115 N.J. 289, 302 (1989)). Indeed, as the Court has stated, "[t]he 'inflammatory characteristic of other-crime evidence . . . mandates a careful and pragmatic evaluation by trial courts, based on the specific context in which the evidence is offered, to determine whether the probative worth of the evidence outweighs its potential for undue prejudice.'" State v. Cofield, 127 N.J. 328, 334 (1992) (quoting State v. Stevens, supra, 115 N.J. at 303) (alteration in original). As a result, N.J.R.E. 404(b) is viewed as a rule of exclusion rather than a rule of inclusion. State v. Darby, 174 N.J. 509, 520 (2002).

In light of these concerns, the Court has established a four part test that other-crimes evidence must meet in order to be admitted into evidence.

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, supra, 127 N.J. at 338 (quoting Abraham P. Ordover, Balancing The Presumptions of Guilt and Innocence: Rules 404(b), 608(b), and 609(a), 38 Emory L.J. 135, 160 (1989)).]

To meet the first prong, the evidence must be "relevant to a material issue genuinely in dispute." State v. Darby, supra, 174 N.J. at 519. Relevant evidence has "a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. The focus is upon "'the logical connection between the proffered evidence and a fact in issue.'" State v. Darby, supra, 174 N.J. at 519 (quoting State v. Hutchins, 241 N.J. Super. 353, 358 (App. Div. 1990)).

The fact that ballistic studies showed that the gun used in the Barnegat killings was the same gun used by defendants in the Bronx barbershop shooting is evidence that tends to connect defendants with the Barnegat homicides. Courts have recognized that proof of a defendant's use or possession of a weapon in one crime is evidence of the identity of the person who used the same gun in another crime. State v. Hardaway, 269 N.J. Super. 627, 629-30 (App. Div. 1994) (allowing in a homicide case proof that the gun that killed the victim was the same gun defendant had used in an earlier armed robbery, but finding that the victim's testimony about the armed robbery was unduly prejudicial); see also State v. Carswell, 303 N.J. Super. 462 (App. Div. 1997) (upholding the admission of evidence that defendant had carried a gun on other occasions in a trial on whether defendant had threatened someone with a gun); State v. Wood, 130 N.J. Super. 401, 408-10 (App. Div. 1973) (concluding in a homicide case that proof defendant had earlier been ejected from the victim's house and found at that time to be in possession of a gun similar to the murder weapon was admissible), aff'd, 66 N.J. 8 (1974).

Thus, because the same gun was used in both the Barnegat slayings and the Bronx barbershop shooting, defendants' involvement in the earlier incident was relevant evidence connecting defendants to the Barnegat crime. Since this evidence was relevant on the issue of identity, the first prong of the Cofield test was met.

The State also argues that evidence of the barbershop robbery was relevant evidence on the question of plan or motive. The State maintains that both crimes were part of a larger plan or motive to steal from drug dealers because they are unlikely to report thefts to the authorities.

We reject this argument. In order for the other-crimes evidence to be considered part of a plan, "the other-crime evidence [must] prove[] the existence of an integrated plan, of which the other crimes and the indicted offense are components." State v. Stevens, supra, 115 N.J. at 305-06. As a result, in Stevens, the Court determined in an official misconduct case for improperly searching two women, that evidence of three other incidents where the defendant police officer had sought sexual gratification when searching women was not evidence of a common plan or scheme, although the evidence was admissible on his state of mind. Id. at 305-07. Here the robbery of the Bronx barbershop was not part of an integrated plan or scheme, but the two crimes were separate events. Indeed, evidence that defendants were inclined to rob drug dealers is precisely the kind of propensity to commit a crime evidence that N.J.R.E. 404(b) is designed to exclude. See State v. Nance, 148 N.J. 376, 386 (1997) (stating that "courts should exclude evidence of other crimes, civil wrongs, or acts enumerated in the respective rule when such evidence is offered solely to establish the forbidden inference of propensity or predisposition").

When the issue is motive, "New Jersey courts generally admit a wider range of evidence." State v. Covell, supra, 157 N.J. at 565. Other-crimes evidence may show a defendant's intent or motive, and courts will admit for this purpose evidence "that 'tend[s] to shed light' on a defendant's motive and intent or which 'tend[s] fairly to explain his actions,' even though they may have occurred before the commission of the offense." Ibid. The evidence that defendants committed the Bronx barbershop robbery does not shed light on why defendants specifically committed the Barnegat crimes; it merely shows their general propensity to commit violent robberies. See State v. Kemp, 195 N.J. 136, 147-50 (2008) (reversing a conviction for felony murder, robbery, and conspiracy, because evidence that defendant had committed a robbery the night before the crimes on trial was not relevant on the issues of intent or motive).

Thus, the only aspect of defendants' involvement in the Bronx barbershop robbery that was relevant to the Barnegat crime is the fact that the same gun was used in both crimes.

The second prong requires that the other crime be "similar in kind and reasonably close in time" to the one on trial. State v. Cofield, supra, 127 N.J. at 338. In this case the second prong has not been met. The armed robbery of the barbershop in order to obtain drugs was a very different crime from the Barnegat crime, where the robbery arose out of the sale of guns, where one victim was tortured, and both victims were intentionally killed to prevent them from serving as witnesses. However, the second prong need not be satisfied in all cases. State v. Barden, supra, 195 N.J. at 389. "[T]he 'usefulness [of Cofield's second prong] as a requirement is limited to cases that replicate the circumstances in Cofield,' in which evidence of drug possession that occurred subsequent to the drug incident that was the subject of the prosecution was relevant to prove possession of the drugs in the charged offense." Ibid. (quoting State v. Williams, 190 N.J. 114, 131 (2007)) (second alteration in original). Since defendants' connection with the gun and not the similarity of the crimes was the reason for admitting the evidence, the second prong need not be met here.

The third prong requires that the other-crimes evidence be proven by clear and convincing evidence. State v. Cofield, supra, 127 N.J. at 338. Here, Mercer, who testified pursuant to a plea agreement, implicated defendants in the Bronx barbershop robbery. That testimony, if believed by the court, was sufficient to meet the clear and convincing standard. See State v. Hernandez, 170 N.J. 106, 125-26 (2001) (holding that uncorroborated accomplice testimony may satisfy the third prong requiring that the other-crimes evidence be proven by clear and convincing evidence). The record also contained Gillispie's statement to Officer Mojica, in which Gillispie confessed to the Bronx barbershop robbery, although he did not implicate Buttler in it. Accordingly, the third prong was met.

The fourth prong requires that the probative value of the other-crimes evidence outweigh its prejudicial effect. State v. Cofield, supra, 127 N.J. at 338. The evidence is excluded as unduly prejudicial "when 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 issues." State v. Koskovich, 168 N.J. 448, 486 (2001) (quoting State v. Thompson, 59 N.J. 396, 421 (1971)) (alteration in original). Applying this test requires "a 'careful and pragmatic evaluation' of the evidence." State v. Barden, supra, 195 N.J. at 389.

We note that when a defendant is on trial for a robbery, evidence that he committed another robbery is highly prejudicial. In State v. Darby, supra, 174 N.J. at 513-15, the Court overturned the defendant's conviction for the armed robbery of a store because his accomplice had been allowed to testify that he and the defendant had participated in the armed robbery of another store eleven days later. The Court found that the evidence which consisted of the accomplice's testimony and a videotape of the second robbery was not admissible on a theory that it corroborated the testimony of the accomplice. Id. at 520-21. The Court noted that even if the first three Cofield prongs were met, the prejudicial effect of this testimony far outweighed its benefits. Id. at 521.

Darby, however, did not involve a situation where, as here, ballistic tests showed that the same gun was used in both events. As noted in the discussion of prong one, the fact that defendants were tied to the Bronx barbershop robbery provided an important linkage via the gun of defendants to the Barnegat killings. As a result, the probative value of these facts outweighed their prejudicial value. However, the other-crimes evidence introduced at trial was not limited to the fact that the same gun was used in both events. Here the jury learned of the Bronx barbershop robbery in greater detail, including the fact that three people had been shot, one was seriously injured, and that at the scene a copper round had rolled out of the body of the seriously wounded victim. These details were not relevant to the question of identity and is the type of information that is inherently prejudicial.

When admitting other-crimes evidence, the trial court "must take appropriate steps to reduce the inherent prejudice of that evidence by considering whether it can reasonably be presented to the jury in a less prejudicial form." State v. Collier, supra, 316 N.J. Super. at 195. "[W]here the other-crimes evidence is otherwise admissible but involves inflammatory and other unduly prejudicial facts, the judge is obliged to require the evidence to be sanitized to the extent necessary to accommodate both the State's right to establish a fact in issue and the defendant's right to a fair trial." Id. at 185.

In an effort to reduce the inherent prejudice in the admission of other-crimes evidence, our courts require the trial court to sanitize the evidence when appropriate. In Collier, the court explained "[t]hat sanitizing accommodates the right of the proponent to present relevant evidence and the right of the objecting party to avoid undue prejudice." [State v. Barden, supra, 195 N.J. at 390 (quoting State v. Collier, supra, 316 N.J. Super. at 195) (citation omitted) (alteration in original).]

For example, in State v. Hardaway, supra, 269 N.J. Super. at 629, the defendant was on trial for a homicide in which the victim had been shot. We determined that evidence the defendant had used the same gun in an armed robbery two and one-half weeks later was admissible to prove that the defendant was at the scene of the homicide. Id. at 629-30. However, the details of that robbery, including the fact that the victims had been terrorized by the defendant holding a handgun to their heads, was not necessary to establish that connection and introduction of that evidence was reversible error. Id. at 630-31.

In sum, we conclude that proofs of defendants' involvement with the gun used in an earlier incident was properly admitted into evidence. However, evidence about the details of the incident and the shooting of three people was prejudicial and not outweighed by any probative value, and was not properly admitted.

We must determine whether this error was harmless. In this determination, "we focus on 'whether in all the circumstances there was a reasonable doubt as to whether the error denied a fair trial and a fair decision on the merits.'" State v. Kemp, supra, 195 N.J. at 149 (quoting State v. Macon, 57 N.J. 325, 338 (1971)).

We will disregard any error or omission by the trial court unless it is of such a nature as to have been clearly capable of producing an unjust result. The same ultimate standard applies whether the error was objected to below or whether the error was first claimed upon appeal. [Id. at 150 (quoting State v. Castagna, 187 N.J. 293, 312 (2006)).]

Despite the strong evidence against defendants, we cannot conclude that the error was harmless. The jury learned that defendants had participated in an extremely violent robbery in which Gillispie unnecessarily shot three innocent people, seriously injuring one of them. This evidence, depicting defendants as violent and dangerous individuals, had the capacity to prejudice and inflame the jury and to produce an unjust result. We therefore reverse the convictions of both defendants and remand for new trials.

III.

We now turn to two issues in Gillispie's appeal that may arise again on retrial. We express no opinion on the balance of the issues in the appeals which had not been raised before the trial court or which are now moot due to the reversal of defendants' convictions.

Gillispie contends that certain testimony of Sol Cepero was improperly allowed into evidence. Cepero testified that Gillispie, who was living in a bedroom in her brother's apartment, had come home late on the night of the Barnegat crime with two others. After the other two left, Gillispie showed her three rings. The next morning Gillispie angrily confronted her saying that someone had taken a ring from his pocket, and an argument ensued. When Cepero's boyfriend intervened, Gillispie struck the boyfriend in the head with the butt of a gun and "broke his head open," causing a lot of bleeding. Gillispie then pointed the gun at Cepero, cursed at her, and said "you fucking people, you don't even know, I had to put bullet holes in motherfuckers for this shit, for the rings." The trial court did not allow Cepero to testify that Gillispie had placed the gun in a pillow and put it to her head. The correctness of that ruling is not before us.

The court allowed the testimony about Gillispie using the gun against Cepero and her boyfriend on the theory that it was part of the res gestae connected with his statement that he had put bullet holes in people for the rings.

This ruling was incorrect. The concept of res gestae has been explained as follows:

The term "res gestae" means things done in and about as a part of the transaction on which the litigation in hand is based, or matters incidental to the main facts and explanatory thereof, including acts and words which are so closely connected therewith as to constitute parts of the transaction and without the knowledge of which the main facts might not properly be understood; and, as it is used in the law of evidence, the term more particularly signifies those circumstances which are the undesigned incidents of a particular litigated act, and which may be shown in evidence as explanatory of such act or as showing a motive for acting. [Riley v. Weigand, 18 N.J. Super. 66, 73 (App. Div. 1952).]

The continuing viability of the concept of res gestae is in question, although the Court has not rejected it. See State v. Barden, supra, 195 N.J. at 396 (declining to decide the debate on whether the concept of res gestae should remain in our jurisprudence).

While Gillispie's hitting Cepero's boyfriend with the gun and pointing the gun at her was part of the incident that morning, the relevant evidence from that incident was the statement Gillispie made about killing people to get the rings. The waiving of the gun and the striking of the boyfriend were not necessary to provide context for the statement, rather they provided examples of Gillispie's violent conduct and were prejudicial. This conduct with the gun would not be admissible under a N.J.R.E. 404(b) analysis, because it was not relevant on any material issue, and under a N.J.R.E. 403 analysis, any probative value as providing context for the statement was outweighed by its prejudice.

Gillispie correctly argues that the trial court should have instructed the jury that it must take into account Mercer's plea agreement when assessing his credibility and that Mercer's guilty plea is not substantive evidence of Gillispie's guilt. As the Court has recently stated:

In sum, the trial court should instruct the jury that it must carefully scrutinize the testimony of a co-defendant in light of the witness's special interest and that a co-defendant's guilty plea may be used only to assess credibility and may not be used as substantive evidence of a defendant's guilt. [State v. Adams, 194 N.J. 186, 208 (2008).]

The correct instructions should be given at the new trials.

Reversed and remanded for new trials.


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