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State of New Jersey v. Michael Gore

March 22, 2011


On certification to the Superior Court, Appellate Division.

The opinion of the court was delivered by: Justice LaVECCHIA


(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).

State v. Michael Gore


Argued October 26, 2010

Decided March 22, 2011

JUSTICE LaVECCHIA, writing for a unanimous Court.

The Court considers whether it was appropriate for the trial court to belatedly admit into evidence defendant's unsigned and unacknowledged transcribed confession statement.

Victoria Colton, an elderly family friend of defendant, was murdered in her home on August 7, 2000. Colton's MAC card subsequently was used for three cash withdrawals that were recorded on surveillance cameras. Defendant's father identified defendant on the videotape, and his step-sister located a shirt at her parents' house bearing the same distinct logo as the shirt worn in the videotape. In connection with an unrelated arrest warrant, defendant turned himself in and, after receiving a Miranda warning and signing a waiver card, agreed to be interrogated by Detective Rios. After being confronted with the evidence against him, defendant made an informal confession to Colton's murder, whereby Rios took handwritten notes that were later converted to a supplemental police report. Defendant further agreed to provide a formal confession statement, which Rios transcribed on a word processor, in question-and-answer format. After Rios had transcribed three pages of the formal confession statement, defendant's attorney arrived and halted the confession. As a result, the formal confession statement was never reviewed or signed by defendant.

A grand jury indicted defendant on four counts, including first-degree murder. In a N.J.R.E. 104 hearing, defendant's formal confession statement was determined to be admissible at trial. At trial, in addition to other evidence and witnesses produced by the State, Detective Rios testified. The prosecutor questioned Rios about the formal confession statement that he transcribed, which was marked as S-2 for identification, without objection. The prosecutor distributed copies of S-2 to the jurors without objection and, as he read Rios's questions and Detective Rios recited defendant's responses, the jury followed along on their copies of S-2. When the prosecutor and Rios finished reading S-2, the court immediately instructed the jury that it could not take defendant's termination of the statement as a negative inference or evidence of guilt. Defendant was the only witness for the defense. Defendant denied responsibility for Colton's death and claimed that he never made the formal statement set forth in S-2. During summation, both parties referred to defendant's formal confession statement several times. The jury was provided with the exhibits for deliberations, including S-2.

During deliberations, the court discovered that S-2 had only been marked for identification and had not been admitted into evidence. The court characterized the omission as "an oversight" and stated that although the document might not have been formally moved into evidence, a proper foundation for its admission had been laid, and the document had been published to the jury without objection. The court thereupon ruled that the jury would be permitted to keep the document for its review. Although the record had closed, the prosecutor moved, without objection, to have S-2 admitted into evidence, and the court granted the motion. During deliberations, the jury requested and was granted several read-backs, including that of Rios's testimony. When the read-back reached Rios's use of S-2, the court asked if there was objection to skipping that portion because the jury had a copy of S-2. There was no objection. The jury found defendant guilty on all counts.

For the first time, on appeal, defendant claimed that the trial court erred by admitting the unsigned and unacknowledged formal confession statement into evidence. Relying on State v. Cleveland, 6 N.J. 316 (1951), the Appellate Division agreed and, after concluding that it could not discern the impact of the written statement on the jury's deliberations, ordered a new trial.

The Supreme Court granted defendant's petition for certification. 201 N.J. 440 (2010).

HELD: State v. Cleveland, 6 N.J. 316 (1951), is superseded by the New Jersey Rules of Evidence. Rule 803(c)(5) permits the admission of a defendant's unsigned and unacknowledged transcribed statement, used to refresh a witness' memory as past recollection recorded, provided there is no objection and all foundational requirements, including Rule 803 (b)(1), are satisfied. Although the trial court erroneously permitted the formal confession statement to be moved into evidence after the record had closed, plain error does not exist because there is no reasonable likelihood that admission of the statement caused the jury to reach a conclusion that it otherwise would not have reached.

1. Rule 803(c)(5), which provides for the use of a written statement to refresh one's recollection, is an exception to the hearsay rule. Rule 803(c)(5) applies once it is shown that the witness has an "impaired memory," and the court is satisfied that the witness is unable to testify fully and accurately about the subject of the written statement. The proponent of the evidence must also establish that the statement: "was made at a time when the fact recorded actually occurred or was fresh in the memory of the witness"; was made "by the witness or under the witness' direction"; and concerns "a matter of which the witness had knowledge when it was made." Finally, Rule 803(c)(5) specifies that, unless the circumstances indicate that the statement is not trustworthy, "the portion the witness does not remember may be read into evidence but [the statement] shall not be introduced as an exhibit over objection." (pp. 15-18)

2. The appellate panel's holding was based primarily on Cleveland, which established that a transcribed confession statement is admissible only if it was (1) read by or to the defendant, and (2) either signed or acknowledged by the defendant in some way. Cleveland, a decision that predates the 1967 codification of the New Jersey Rules of Evidence, has been superseded by adoption of the formal rules of evidence, which represent a cohesive and comprehensive approach to the presentation of evidence at trial. (pp. 19-23)

3. The Rules of Evidence, unless otherwise stated, apply equally to civil and criminal trials. The Rules of Evidence do not specify that Rule 803(c)(5) applies differently in criminal trials. Rather, Rule 803(c)(5) generally permits the admission of a document that is used to refresh a witness's memory -- a past recollection recorded -- unless there is an objection. In addition, regardless of whether an objection based on Rule 403 is raised, every document's admission is subject to a Rule 403 balancing test in order to properly assess its relative prejudice and probative value before admitting it into evidence. (pp. 23-24)

4. A Rule 803(c)(5) document also requires an independent finding of trustworthiness that takes on added significance when the document is setting forth the out-of-court recorded statement of both the witness and another. When that other person is a criminal defendant, the court's obligation when reviewing the document for admission requires a dovetailing with the Evidence Rules' strictures regarding admissions by criminal defendants. Under the codified Rules, a criminal defendant's confession constitutes an admission by a party-opponent, qualifying it as substantive evidence that may be used against that party under Rule 803(b)(1) when the statement is "the party's own statement, made either in an individual or in a representative capacity." Such statements are subject to Rule 104(c) hearings on admissibility, in which the State must prove, beyond a reasonable doubt, that a defendant's statement was voluntary and, if made while in custody, that the defendant properly waived his Miranda rights. Here, that showing had been made to the satisfaction of the trial court. (pp. 24-25)

5. Plain error is the appropriate standard of review on appeal when no objection is made at trial. Although the trial court erroneously permitted the formal confession statement to be admitted into evidence after the record had closed, examining the record as a whole, there is no reasonable likelihood that the admission caused the jury to reach a conclusion that it otherwise would not have reached. The jury had already heard the details surrounding the transcription of defendant's statement, both parties referred to its contents during trial, the entire document had been published to the jury during testimony without objection, and the mass of other evidence supported defendant's guilt. Therefore, any prejudice stemming from the document's belated admission into evidence is of inconsequential weight. (pp. 25-28)

The judgment of the Appellate Division is REVERSED and defendant's conviction is REINSTATED. The matter is REMANDED to the Appellate Division for consideration of defendant's remaining merger and sentencing arguments.


Argued October 26, 2010

JUSTICE LaVECCHIA delivered the opinion of the Court.

A jury convicted defendant Michael Gore Jr. of the murder of eighty-five-year-old Victoria Colton and of related offenses. On appeal, the Appellate Division reversed based on an evidential ruling by the trial court. The panel concluded that the trial court erred in allowing the jury to have a copy of defendant's formal confession, which the State had transcribed as he was providing it, but which defendant neither signed nor acknowledged to be correct. Applying the plain error standard of review, see R. 2:10-2, the panel found that prior case law compelled the conclusion that the trial court's admission of the document memorializing defendant's unacknowledged, transcribed formal confession required a new trial.

We granted the State's petition for certification, State v. Gore, 201 N.J. 440 (2010), and now reverse. There is no likelihood that the error raised on appeal produced an unjust result. Defendant raised no objection when the State read from the document during the trial, when both parties referred to it during summation, or when the court belatedly marked the document as "in evidence" after both sides had treated it as such and had allowed its publication to the jury during trial. Certainly the handling of this exhibit was not "according to Hoyle"; however, that error, in the context of this trial, did not constitute plain error that clearly was capable of producing an unjust result.

The evidence supporting defendant's guilt was strong, even according to the reviewing appellate panel. We are satisfied that there has been no demonstration of a reasonable probability that a different result would have obtained had there been an objection and the document's admission been denied. The jury already had heard the details surrounding the transcription of defendant's statement from both the State and defendant, and had viewed the exhibit's contents during testimony provided by the State. Moreover, both parties referenced the document's contents during their summations. Therefore, the belated admission of the document did not change the parties' behavior in presenting, or wrapping up, their respective cases and it is not probable that the jury somehow was unduly influenced by having had in hand a physical copy of the admitted document containing the information that it had heard so much about.

The Appellate Division judgment is reversed and defendant's conviction is reinstated; the matter is remanded for appellate consideration of defendant's sentencing issues, which were not addressed in the previous disposition on appeal.


We recite the facts underlying the charges against defendant based on the evidence presented at trial. For the most part, the factual account is derived from the testimony of Detective Rios, who interrogated defendant when he was arrested. The bulk of Rios's testimony concerned the context and contents of defendant's initial informal confession to Colton's murder and the circumstances under which a formal transcribed statement was taken from defendant. The latter is the "formal" confession that defendant neither signed nor reviewed. In his testimony, Rios referred to a supplemental police report he prepared from notes of defendant's informal confession, and he recited from a transcription of defendant's formal confession.

On August 7, 2000,*fn1 while en route to a friend's house, defendant passed by the home of Victoria Colton. Colton was a close family friend whom he regarded as a grandmother. Seeing her dog in the yard, he stopped to play with it and then noticed that Colton's back door was open. Defendant entered the house and found her purse unattended on a chair. As he removed some money from the purse, she emerged from an upstairs room, discovered the theft in progress, and threatened to call the police. Defendant went upstairs and attacked her, grabbing her by the neck and garroting her with a telephone cord from her bedroom. When Colton showed some continuing signs of life, he got a knife from the kitchen, returned to the bedroom, and cut her throat. That evening and the following morning, Colton's MAC card was used three times to withdraw cash from ATM machines. All three transactions were recorded on surveillance cameras. Colton's body was found in her bedroom on August 8, 2000, by her friends, Lisa Pointon, defendant's step-sister, and Christine Gore, his mother.

In investigating the homicide, the police obtained videotapes of the ATM transactions. Defendant's father, step-sister, and step-mother viewed the videotapes, which showed the individual making the withdrawals from Colton's bank account attempting to hide his face. The person wore a shirt bearing a distinctive logo. Defendant's father identified the person on the ATM videotapes as his twenty-five-year-old son. Also, the same evening that defendant's step-sister viewed the videotapes, she found at her parents' house a shirt with a distinct logo that matched the shirt worn by the individual on the ATM videotapes. After discussing the discovery with her father, she telephoned the police, and officers came to retrieve the shirt.

At about 3:30 a.m. on August 10, 2000, while the police were actively looking for him in connection with the homicide, defendant turned himself in at the Trenton Police Department on an arrest warrant. The warrant was based on his having left a halfway house illegally on July 25, 2000. Two officers placed him under arrest and took him to a cell where he was left alone for several hours. Later in the day, defendant was administered Miranda*fn2 warnings, signed a waiver card, and agreed to be interrogated by Detective Rios.

According to Rios, defendant initially made an informal statement in which he first denied having a MAC card. Then, after being confronted with the shirt retrieved from his parents' home and told that he appeared on surveillance videos wearing that shirt as he withdrew money with the victim's MAC card, defendant broke down weeping and confessed to killing Colton. He told Rios that he took her MAC card, explained how he knew her PIN number, and said that he used the card to obtain money to purchase drugs and ...

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