July 1, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JEFFREY C. LEAK, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 07-04-1153.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 10, 2010
Before Judges Lisa and Baxter.
The jury found defendant guilty of all counts in the indictment against him except count seven,*fn1 as follows: (1) first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3; (2) second-degree aggravated assault (attempting to cause serious bodily injury), N.J.S.A. 2C:12-1b(1); (3) fourth-degree aggravated assault (pointing a firearm), N.J.S.A. 2C:12-1b(4); (4) second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; (5) third-degree possession of a sawed-off shotgun, N.J.S.A. 2C:39-3b; (6) third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5c; (8) third-degree terroristic threats, N.J.S.A. 2C:12-3; and (9) second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7b. After merging counts two and four with count one, Judge Schuck sentenced defendant on count one to sixteen years imprisonment, subject to an 85% parole disqualifier and five years parole supervision pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. On count nine, the judge imposed a consecutive sentence of seven years imprisonment with a five-year parole disqualifier. On all other counts, the defendant received sentences that were ordered to be served concurrent with count one, as follows: on count three, eighteen months imprisonment without parole eligibility; on count five, four years imprisonment; on count six, four years imprisonment; and on count eight, four years imprisonment.
On appeal, defendant argues:
THE IMPROPER ADMISSION OF TESTIMONY REGARDING DEFENDANT'S ALLEGED PRIOR VERBAL AND PHYSICAL ABUSE OF THE VICTIM VIOLATED N.J.R.E. 404(b) AND DEPRIVED DEFENDANT OF HIS RIGHT TO DUE PROCESS AND A FAIR TRIAL.
DEFENDANT'S CONVICTIONS MUST BE REVERSED BECAUSE THE TRIAL COURT'S LIMITING INSTRUCTION FAILED TO EXPLAIN THE PERMISSIBLE USES OF THE 404(B) EVIDENCE WITHIN THE CONTEXT OF THIS CASE. (Not Raised Below).
THE PROSECUTOR ACTED IMPROPERLY BY SUGGESTING TO THE JURY THAT AN ACQUITTAL WOULD BE AN INJUSTICE. (Not Raised Below).
THE COURT VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHTS TO EFFECTIVE ASSISTANCE OF COUNSEL AND TO REPRESENT HIMSELF WHEN IT REFUSED TO GRANT AN ADJOURNMENT TO ALLOW NEW COUNSEL TO BE SUBSTITUTED AND FAILED TO INFORM DEFENDANT OF HIS RIGHT TO DISPENSE WITH COUNSEL TO WHOM HE OBJECTED AND TO REPRESENT HIMSELF.
DEFENDANT'S SENTENCE IS EXCESSIVE.
We reject these arguments and affirm.
The victim of the crimes was defendant's estranged wife, Reenatos Leak. She and defendant had known each other since childhood, had been in a romantic relationship since 1975, were married in 1982, and had three children. By the time of trial, they were both in their early fifties. They had separated in June 2006. The crimes occurred on November 1, 2006.
As of November 1, 2006, Reenatos was living in an apartment in the same apartment complex in Barrington where she and defendant had previously lived, and where defendant was still living. We now set forth the version of events described by Reenatos in her trial testimony.
On the evening of November 1, 2006, defendant called Reenatos and told her he had been pulled over by the police for traffic violations and needed money for bail. He told her to go to his apartment, where she would find an envelope secreted near the front door with the key to the apartment in it. He told her to go into the closet and take money out of the gray coat pocket hanging there. He said he needed about $1100.
At about 8:30 p.m., Reenatos went to defendant's apartment, found the key, and let herself in. Fearing for her safety based upon a history of violent and threatening behavior by defendant (which we will later describe), she left the engine running and her flashers on as she parked the car, and took her cell phone with her into defendant's apartment. As she stood by the closet door, defendant emerged from the front bedroom and pointed a shotgun at her. Reenatos immediately screamed "oh my God, he's going to kill me." Defendant told her to shut up or he would kill her. She attempted to run while dialing 911 on her cell phone, but defendant knocked the phone out of her hand before she could complete the call, grabbed her, and threw her into the wall. In the course of this contact, Reenatos' glasses were knocked off. She tried to push defendant away, but he began choking and hitting her. She continued to cry out for help, screaming that defendant was going to kill her.
After hitting the wall, Reenatos slid to the floor. Defendant got on top of her as she lay on her back and began choking her, telling her to "shut up or he was going to kill [her]." Defendant pushed his hand into Reenatos' mouth to stop her from screaming and put pressure on her throat, which made it difficult for her to breathe. Reenatos believed defendant was trying to kill her.
Defendant picked Reenatos up and threw her into the back bedroom. At this point, Reenatos recalled seeing the gun in defendant's hand. She screamed "someone please hear me. Oh, my God, he's going to kill me." Defendant again began choking her and continued threatening to kill her.
Meanwhile, neighbors hearing the commotion called the police, who then arrived and knocked on the door. Defendant left the bedroom and answered the door. He denied that anyone was screaming from his apartment, but Reenatos came out of the bedroom and informed the police that indeed she had been screaming.
Reenatos told the police what had happened, and the police arrested defendant. Neighbors were present, and they comforted Reenatos, who was hysterical. The neighbors and police officers testified at trial, describing what they heard and saw.
Patrolman David Uron, the first officer to respond, also described events subsequent to defendant's arrest. A search of defendant's person incident to the arrest revealed that he had a steak knife and box cutter in his pockets. Uron found a sawed-off shotgun on the bed in the back bedroom containing one round in the chamber and two rounds in the magazine. Uron also found a tote in the front bedroom containing sixteen rounds and three slug rounds for a twelve gauge shotgun, as well as eighteen rounds of rifle ammunition. He also found twenty gauge slug rounds on the nightstand in the back bedroom.
Detective Edward Catts also testified at trial. He described observing a large amount of standing water in the bathtub and an alarm clock radio plugged into an outlet and placed on the bathroom sink "very close to the tub." He also described that a search of defendant's vehicle resulted in the seizure of a rifle, loaded with two rounds which were consistent with the rifle ammunition found in defendant's apartment. Defendant's vehicle was parked in a location at some distance from his apartment. According to the State's theory of the case, this was part of defendant's design to lure Reenatos to the apartment under the belief that defendant was not there.
Prior to trial, the State had moved in limine to be allowed to present evidence of prior instances of abuse perpetrated by defendant against Reenatos. This evidence was proffered pursuant to N.J.R.E. 404(b) as evidence of defendant's intent and motive. Judge Schuck conducted an evidentiary hearing at which Reenatos testified. Most of the prior conduct consisted of verbal abuse, characterized generally as name calling. Indeed, in her trial testimony, Reenatos acknowledged that she sometimes cursed at defendant and called him names as well during these verbal altercations. The events included some instances of physical abuse and threats, including one that occurred in early October 2006, less than one month before the November 1, 2006 criminal episode. Judge Schuck found Reenatos to be a very credible witness and was clearly convinced that the prior acts she described had occurred. He found that all four prongs of the test for admissibility set forth in State v. Cofield, 127 N.J. 328 (1992), had been satisfied. He therefore ruled that the testimony would be allowed, but would be limited to the years since the parties had been married.
At trial, Reenatos said that after the parties were married in 1982, they purchased a home in Trenton and their marriage was a "[l]ittle rocky" from the beginning. She said from time to time defendant subjected her to verbal abuse. She gave as examples that he sometimes called her a "whore" and told her she was "no good."
The family moved to another location in Trenton, where the verbal abuse continued. They then moved to the Willingboro area in 1991. The verbal abuse continued, and there was also one incident of physical abuse, in which defendant slapped and choked Reenatos. The parties later moved to Bucks County, Pennsylvania, where they lived for a time before moving to Barrington. While in Bucks County, there were no incidents of physical abuse, although the verbal abuse continued.
Reenatos said on one occasion while they were living in Barrington defendant told her "he was going to kill [her]." There was also an incident in Barrington in which defendant slapped their youngest son. According to Reenatos, "[i]t was getting more worse. Instead of him calling me a lot of names, he was just threatening me then." Finally, in June 2006, as a result of financial stress and stress over the deteriorating relationship, Reenatos moved out. An argument ensued that prompted the move because the parties' son, who was by then an adult and was living in Georgia, wanted to move back in with his parents because of some troubles he was having in Georgia. Reenatos was agreeable, but defendant was not. Reenatos explained: "I just couldn't stay there anymore. It was escalating and then they [defendant and her son] got into a very big argument." She concluded: "I just couldn't take that no more. I had to leave."
Reenatos stayed with her mother in Trenton for a time, until she was able to obtain the apartment for herself in Barrington. Defendant continued to harass Reenatos while she was living in Barrington. In early October 2006, an incident occurred in which defendant told Reenatos that he had some mail for their son, and she agreed that defendant could drop it off to her at her apartment. When defendant arrived, he "barged" into the apartment when she opened the door. She had her cell phone in her hand, but defendant knocked it out of her hand. Defendant accused Reenatos of cheating on him with someone she did not even know. Although defendant finally left without any further physical contact, Reenatos was very fearful.
Defendant testified on his own behalf. He provided a very different version of the events of November 1, 2006. He said Reenatos was coming to his apartment to pick up money for their son. He said when she arrived he was in the bathroom, and when he came out, Reenatos was already in the apartment. An argument then ensued regarding overdue car payments, which defendant had intentionally refused to pay. Because he suspected Reenatos had taken money upon entering the apartment, defendant stopped her at the door before she could leave. When he confronted Reenatos about taking his money (which he said was $4000), she became "real belligerent." Defendant acknowledged that he and Reenatos got into a physical "tussle." But, according to him, he was merely trying to get his money back from her. He said she let out a "fake" scream, but otherwise was not screaming in the hysterical manner that Reenatos described or saying that he was going to kill her or she was going to die. He gave this account of the physical struggle between the parties:
She pulls herself on out. She says if you don't let me out here I'll call the police. Go ahead. How you going to explain walking out of here, $4,000 of my money, to the police? She dropped that notion. We argued a little more. Let me out or I'll start screaming. I don't give a shit what you do. You're not leaving with my money.... She let out a fake scream which was real fake.... Help, help, help. I said I don't care. You're not leaving with my money. So we're tussling at the door. She had the money and put in her pocketbook. She had it right in her hand. I grab her by the shoulder and pulls [sic] her back in.... As I'm pulling her back in the door, we're not in the apartment no more. We're in the hallway and she's screaming belligerently. I pulled her back in. She grabs ahold of the door. I pulled her off the door. I fell backwards over the chair by the door and she went that way.... Both of us fell down. Her glasses fell - broke and went down her face.... She said she was having a seizure. I didn't believe her. Her eyes start fluttering and her teeth chattering.... I was over top her [sic] trying to help her out at first. At that time she takes the money out. She says here, throws her pocketbook down. I put the money on the table.
Defendant stated he then went to find Reenatos' seizure medication, but at that point, the police knocked on the door. Defendant said the entire encounter lasted less than ninety seconds.
Defendant denied pointing a shotgun at Reenatos. He denied that he strangled, dragged, or attempted to kill her or threatened to kill her. He also denied that he had the shotgun in his hands when Reenatos came to the apartment. He said the shotgun was "laying on the bed for my protection and my son's protection with the meeting he was supposed to have in my house."*fn2
With respect to the alleged history of problems between the parties, defendant admitted that "problems surfaced" after the two were married. He said that he had been unfaithful to Reenatos, engaging in numerous affairs, all but one of which she knew about. However, he also engaged in an affair with Reenatos' sister that lasted about five years, and Reenatos did not know about this one. When she found out about it, she became "very angry." Defendant also admitted ownership of the shotgun and rifle. He said the box cutter found in his pocket was for work, but that he had grabbed the kitchen knife found in his pocket on the way to answer the door for his protection.
We first address defendant's argument that the judge erred in admitting, over defendant's objection, the testimony regarding his alleged prior verbal and physical abuse of Reenatos. Defendant argues that the admission of this testimony violated N.J.R.E. 404(b) and deprived him of a fair trial. We do not agree.
"The underlying danger of admitting other-crime evidence is that the jury may convict the defendant because he is 'a "bad" person in general.'" Cofield, supra, 127 N.J. at 336 (quoting State v. Gibbons, 105 N.J. 67, 77 (1987)). Hence, even if the other-crime evidence is relevant to an issue at trial, it must still be excluded unless its probative value outweighs its prejudicial impact. Ibid. Indeed, "[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.'" Id. at 334 (quoting State v. Stevens, 115 N.J. 289, 303 (1989)).
In light of the recognition that other-crime evidence may have a prejudicial effect, N.J.R.E. 404(b) provides that, in general, "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." N.J.R.E. 404(b). However, "[s]uch 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." Ibid. A ruling on whether to admit other-crime evidence under N.J.R.E. 404(b) is reviewed under the abuse of discretion standard. State v. Erazo, 126 N.J. 112, 131 (1991).
Because the focus of the rule is on exclusion, rather than inclusion, "it will be the exceptional, and not the usual, case where the evidence of other bad acts is substantially relevant for reasons other than proof of criminal character." Cofield, supra, 127 N.J. at 337. Thus, in order to avoid the over-use of evidence of other crimes or wrongs, the Court in Cofield laid out a four-element test of admissibility. Id. at 338. To be admissible, the evidence of the other crime or wrong (1) must be "relevant to a material issue"; (2) must be "similar in kind and reasonably close in time to the offense charged"; (3) must be "clear and convincing"; and (4) "[t]he probative value of the evidence must not be outweighed by its apparent prejudice." Ibid.
For the first prong, evidence is relevant if it tends "to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401; see State v. Covell, 157 N.J. 554, 565 (1999). In determining relevance, "the inquiry should focus on the 'logical connection between the proffered evidence and a fact in issue.'" Covell, supra, 157 N.J. at 565 (quoting State v. Hutchins, 241 N.J. Super. 353, 358 (App. Div. 1990)). "[E]vidence may be admitted for other purposes, such as proof of motive when motive is relevant to a material issue in dispute." State v. Collier, 316 N.J. Super. 181, 192 (App. Div. 1998), aff'd, 162 N.J. 27 (1999).
Judge Schuck determined that the evidence that defendant had previously verbally and physically abused Reenatos was relevant to show defendant's intent and motive to commit the alleged crimes of attempted murder and aggravated assault. Defendant contests this conclusion, arguing that "the issue [was] not one of motive or intent; the issue for the jury to determine [was] whose version of [the] events [was] credible." He contends that the only function of the other-crime evidence was to "raise the forbidden inference that defendant had a propensity for abusive behavior, and from that, the jury was invited to assume that defendant must have acted in conformity with this propensity by attempting to murder Ms. Leak."
We are satisfied that the evidence of the prior course of conduct meets the test of relevancy. To prove attempted murder the State had to prove beyond a reasonable doubt that defendant had the purpose to cause Reenatos' death. Whether defendant possessed such a purpose was a material disputed issue. The prior course of conduct, which escalated over the years from name calling to threats and some limited physical abuse, leading up to the October 2006 incident that immediately preceded the November 1, 2006 criminal episode, was very probative of such a purpose.
The prior course of conduct was indicative of defendant's hostility toward Reenatos, which was increasing with the passage of time and the course of events, including her leaving him.
Without that evidence, the November 1, 2006 incident might well have been viewed as an isolated argument over money, which would not be likely to cause one of the participants to have a purpose to kill the other based upon that single dispute. Indeed, according to defendant, this was a verbal altercation that led to a relatively minor "tussle," during the course of which Reenatos suffered a seizure. He claims he then attempted to assist her by trying to find her seizure medication for her. The same analysis pertains to the aggravated assault count, in which defendant was accused of attempting to cause serious bodily injury to Reenatos. He did not cause serious bodily injury, and, as with the attempted murder count, the State had to prove that defendant had the purpose to cause serious bodily injury.
"[C]courts generally admit a wider range of evidence when the motive or intent of the accused is material," and this "includes evidentiary circumstances that 'tend to shed light' on a defendant's motive and intent or which 'tend fairly to explain his actions,' even though they may have occurred before the commission of the offense." Covell, supra, 157 N.J. at 565.
We are satisfied that Judge Schuck reasonably found the other-crime evidence here tended to establish "a longstanding hostility on the part of... defendant as against the alleged victim and also jealousy with respect to intent," and showed that defendant's "purpose was to kill or assault the victim,... and this is why... he did so. Not how." Other-crime evidence like that introduced here is relevant to show the jealousy and possessiveness that could form the basis of defendant's intent and motive to commit the alleged crimes. See State v. Angoy, 329 N.J. Super. 79, 85-86 (App. Div.), certif. denied, 165 N.J. 138 (2000). The judge did not mistakenly exercise his discretion in finding that the first prong of the Cofield test was satisfied.
The second prong, that the other-crime evidence must be "similar in kind and reasonably close in time to the offense charged," was also satisfied here. Similar to the October 2006 incident, the incident at issue in this case involved a scheme by defendant to meet with the victim under false pretenses that led to physical abuse. On both occasions, defendant's cell phone was knocked from her hands before she could use it to call for help. Also, similar to incidents that occurred when defendant and Reenatos were living in Willingboro and Barrington, the current incident involved physical abuse that included choking and hitting, as well as death threats. The temporal requirement was satisfied because the prior events occurred continuously leading up to a final incident that happened only one month before the criminal episode.
The third prong requires that the evidence of other crimes or wrongs must be "clear and convincing," and "'requires some showing that the person against whom the evidence is being used actually committed the other crime or wrong.'" State v. Koskovich, 168 N.J. 448, 485 (2001) (quoting State v. G.V., 162 N.J. 252, 275 (2000) (Coleman, J., concurring in part and dissenting in part)). Judge Schuck found Reenatos' testimony regarding the prior incidents of physical and verbal abuse "consistent, detailed and specific." Angoy, supra, 329 N.J. Super. at 87. Nothing in the record suggests that she simply concocted a story of abuse that spanned almost twenty-five years. See ibid. Therefore, "[t]here is no reason for [this court] to substitute [its] judgment for that of the trial judge concerning his entirely reasonable conclusion" in this regard. Ibid. We defer to the judge's factual findings. State v. Johnson, 42 N.J. 146, 162 (1964). Thus the third Cofield prong is satisfied.
Under the fourth prong, the court is to apply the balancing test of N.J.R.E. 403, which "excludes evidence if 'its probative value is substantially outweighed by the risk of... undue prejudice.'" Covell, supra, 157 N.J. at 568 (quoting N.J.R.E. 403). Specifically, "evidence 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." Ibid. (quoting State v. Thompson, 59 N.J. 396, 421 (1971)).
Defendant argues that "any probative value this evidence could have had would have been vastly outweighed by its prejudice." He asserts that the evidence was not relevant and thus had "no legitimate probative value." He claims that "[t]he devastatingly prejudicial nature of this inflammatory evidence... cannot be overstated," and contends that the State was seeking "to demonstrate that [he] had an assaultive disposition and was likely to have attempted to murder Ms. Leak."
However, as we have stated, the evidence did have legitimate probative value pertaining to defendant's intent and motive to commit the charged crimes, and its value in this regard was strong. Additionally, as Judge Schuck held, the evidence itself sought to be offered is not particularly horrific or gory; such that it would intend to inflame - possibly inflame a jury or misdirect it or be confusing to the jury in any particular way.
A lot of it is evidence of what is characterized as verbal abuse. There is some aspect of physical abuse involved as well, but it's not such that I conclude that it has such a prejudicial effect that [the] probative value of the evidence would be outweighed by any apparent prejudice.
We find no error in the judge's conclusion that the evidence "was unlikely to be so highly inflammatory that it would distract the jurors from performing their jobs properly." Covell, supra, 157 N.J. at 570-71. As we have explained, courts tend "to be more open to the admission of motive or intent evidence." Id. at 571. The judge acted within his discretion in finding that the probative value of the other-crime evidence substantially outweighed any prejudicial effect of this evidence, and therefore the fourth prong of the Cofield test was satisfied.
In a related argument, defendant contends, for the first time on appeal, that the limiting instruction failed to adequately explain the permissible uses of N.J.R.E. 404(b) evidence within the factual context of the case, thus resulting in reversible error. We conclude that the instruction was adequate. We further note that, as is the preferred practice, Judge Schuck gave the limiting instruction immediately after the other crimes testimony was presented and then repeated it in his final charge to the jury.
When evidence of other crimes is admitted, "'the court must instruct the jury on the limited use of the evidence.'" State v. Marrero, 148 N.J. 469, 495 (1997) (quoting Cofield, supra, 127 N.J. at 340-41). Due to the inherently prejudicial nature of such evidence, this instruction "should be formulated carefully to explain precisely the permitted and prohibited purposes of the evidence, with 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." Ibid. (quoting Stevens, supra, 115 N.J. at 304).
The limiting instruction given in this case was as follows:
The State has introduced evidence that the defendant has engaged in a series of altercations or incidents involving his wife Reenatos Leak, the alleged victim in this matter.
Normally such evidence is not permitted under our rules of evidence. Our rules specifically exclude evidence that a defendant has committed other crimes, wrongs or acts when it is offered only to show that he has a disposition or tendency to do wrong and, therefore, must be guilty of the charged offenses.
Before you give any weight to this evidence, you must be satisfied that the defendant committed the other crime, wrong or act. If you are not so satisfied you many not consider it for any purpose. However, our rules do permit evidence of other crimes, wrongs or acts when the evidence is used for certain specific narrow purposes.
In this case the State contends that this evidence tends to prove motive because it shows a longstanding hostility and jealousy on the part of the defendant as against his wife and to prove the defendant's state of mind, his intent, by showing that his purpose was to kill or assault his wife Reenatos Leak.
Whether this evidence does, in fact, demonstrate motive or intent is for you to decide. You may decide that the evidence does not demonstrate motive or intent and is not helpful to you at all. In that case you must disregard the evidence. On the other hand, you may decide that the evidence does demonstrate motive or intent and use it for that specific purpose.
However, you may not use this evidence to decide that the defendant has a tendency to commit crimes or that he is a bad person.
That is, you may not decide that just because the defendant has committed other crimes, wrongs or acts, he must be guilty of the present crimes. I have admitted the evidence only to help you decide the specific question of motive or intent. You may not consider it for any other purpose and may not find the defendant guilty now simply because the State has offered evidence that he committed other crimes, wrongs or acts.
Defendant argues that the instruction was insufficient because it "never explained the abstract issue of intent or motive within the context of the case, nor did [it] elaborate on how the other crimes evidence would be admissible on the issues of intent or motive." He thus contends that the instruction was "fatally flawed" in that it "did not properly explain the purpose for which the other crimes evidence could be used," and instead "merely restated the general provisions of [the rule] without focusing the jury's attention on... 'the narrow distinction between the permissible and impermissible uses of the other-crime evidence.'" Cofield, supra, 127 N.J. at 341 (quoting Stevens, supra, 115 N.J. at 308-09). Defendant concludes that the limiting instruction was thus insufficient "to ameliorate the prejudicial effect of the inflammatory other crimes evidence."
Defendant relies on State v. Oliver, 133 N.J. 141, 158-59 (1993), where the limiting instruction was found insufficient because it did not explain the permissible uses of such evidence within the context of the case. In that case, the trial judge told the jury that it could consider the other-crime evidence on the issue of "intent or plan," but did not elaborate on what this meant in that particular case. Id. at 157. The Supreme Court determined that the instruction constituted reversible error because it "not only gave the jury free rein to use that evidence as it wished but implicitly gave the court's blessing to any such uses of the evidence." Id. at 159.
In our view, the instruction in this case does not suffer from the same infirmity. The judge did "explain the relationship between the other-crime evidence and the issues and facts on which it could be considered." Id. at 158. He explained that it was the State's contention that the other-crime evidence "tends to prove motive because it shows a longstanding hostility and jealousy on the part of the defendant as against his wife," and could be used to establish intent "by showing that his purpose was to kill or assault his wife Reenatos Leak." The judge made "sufficient reference to the factual context of the case to enable the jury to comprehend and appreciate the fine distinction to which it [was] required to adhere." Stevens, supra, 115 N.J. at 304.
Any possible shortcoming in the instruction did not amount to "plain error." If an error has not been brought to the trial court's attention, we will not reverse on the ground of that error unless "it is of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2. Not any possibility of an unjust result is sufficient; the possibility must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971). We are satisfied that any insufficiency in the specificity of the instruction did not rise to the level of plain error.
Additionally, the Court in State v. G.S., 145 N.J. 460, 473, 476 (1996), concluded that, after conducting a fact- specific inquiry "to determine whether prejudice has resulted from the failure to give a sufficiently limiting instruction governing the use of other-crime evidence," a court may conclude that an inadequate limiting instruction did not "tip the jury's deliberations." Thus "[t]he strength of the evidence against a defendant, independent of the other-crime evidence, is a factor to be considered in determining prejudice to a defendant." Marrero, supra, 148 N.J. at 497.
In this case, there was a wealth of evidence aside from the other-crime evidence that tended to establish defendant's guilt. This included testimony from the victim herself, as well as from neighbors and law enforcement that corroborated the victim's story. Therefore, the possibility of an unjust result stemming from an inadequate limiting instruction was not "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." Macon, supra, 57 N.J. at 336.
Defendant's remaining arguments lack sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). We offer these brief comments.
In Point Three, defendant argues that the prosecutor acted improperly by arguing to the jury that an acquittal would constitute an injustice. There was no objection to the comment when made. The prosecutor concluded her summation with this:
Your job, when you start your deliberations, will be to render a just verdict. Given all the testimony you've heard and all the evidence that's in the case, the only verdict that's just in this case would be a verdict of guilty on each and every count in the indictment. Thank you.
Any error in these comments was harmless beyond a reasonable doubt. The prosecutor began her final remarks by urging the jury to render a "just verdict." She then equated a "just verdict," with a "verdict of guilty," based upon "all the evidence that's in the case." Although the comments could be interpreted as urging the jurors that their job was to find defendant guilty, they were made in the context of rendering a just verdict based upon the evidence. The fact that there was no objection is a strong indication that defense counsel did not deem the comments prejudicial. Failure to object also deprived the judge of the opportunity to cure any impropriety. In the overall context of this case and of the prosecutor's entire summation, the complained-of comments did not have the capacity to lead the jury to a result it would not have otherwise reached.
In Point Four, defendant complains that he was wrongfully deprived of an adjournment to obtain new counsel or, alternatively, to represent himself. This argument is belied by the record. At a pretrial hearing, defendant expressed dissatisfaction with his attorney's trial preparation and asked for an adjournment to obtain new counsel. The judge deferred the issue and revisited it the next day. At that time, the following colloquy occurred:
THE COURT:.... Mr. Leak, yesterday you indicated to the Court that you wanted to get a different attorney, private counsel. Is that still your position? A day has passed. You've spoken with your lawyer some more... ?
THE DEFENDANT: I've spoken to [trial counsel]. I think she can handle the situation. The reason why I say that it wasn't looked like it's supposed to have been looked into, but she's covered that so I think I'll be good with her.
THE COURT: All right. So you're ready to proceed and satisfied to proceed with [trial counsel] as your attorney?
THE DEFENDANT: Most definitely, yes.
Defendant expressly stated his satisfaction with his assigned counsel, with whom he was prepared to begin the trial. In these circumstances, the judge was under no obligation to engage in a colloquy with defendant about his right of self-representation, a right defendant never attempted to assert.
Finally, we reject defendant's argument in Point Five that his sentence is excessive. The judge's findings regarding aggravating and mitigating factors are well-supported by the record, the judge correctly applied the sentencing guidelines in the Code of Criminal Justice, and the sentence imposed is not manifestly excessive or unduly punitive and does not constitute a mistaken exercise of discretion. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Ghertler, 114 N.J. 383, 393 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).