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State of New Jersey v. Zarik Rose

June 8, 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. Zarik Rose (A-111-09)(065010)

Argued January 4, 2011

Decided June 8, 2011

LaVecchia, J., writing for a majority of the Court.

In this appeal the Court addresses whether evidence of defendant's previous indictment and incarceration on the charge of attempting to murder the victim is admissible in defendant's trial for the murder of the victim. The Court also considers the continued invocation of res gestae as a basis for the admission of evidence.

Defendant was incarcerated in 1995 on charges relating to the attempted murder of Charles Mosley, the murder victim in the present appeal. While in jail awaiting trial on attempted murder, defendant met Salvatore Puglia and Larry Graves, both of whom appeared as witnesses for the State at defendant's murder trial. According to Puglia, defendant told him that he wanted to have Mosley "whacked." Puglia later helped police with their investigation by wearing a wire and recording defendant making incriminating statements.

Graves testified that defendant solicited him to kill Mosley, promising in return $2,000 to $3,000 and a quantity of drugs. Upon his release from jail, Graves complied with defendant's plans and killed Mosley. After his arrest, Graves pled guilty to aggravated manslaughter and agreed to testify against defendant.

The State's proposed use of evidence about defendant's indictment for attempted murder of Mosley was reviewed pretrial and declared admissible. The trial court found some of the evidence admissible as res gestae and other portions admissible under New Jersey Rule of Evidence 404(b). During trial, the court provided limiting instructions to channel the jury's use of that evidence.

On appeal, defendant argued, among other things, that all evidence relating to the fact that he was incarcerated on charges of the attempted murder of Mosley was improperly admitted. The Appellate Division affirmed, but based on a different analysis than the trial court. This Court granted certification limited to the issue of the admissibility of the evidence pertaining to defendant's prior indictment and incarceration on charges that he attempted to murder the victim. State v. Rose, 203 N.J. 96 (2010).

HELD: The disputed evidence was admissible under the New Jersey Rules of Evidence. It properly went to defendant's motive, intent and plan, and the probative value of the evidence was not outweighed by its prejudice. In this appeal, the Court also ends the practice of invoking res gestae as an explanation for the admission of evidence.

1. Evidence Rule 404(b) governs the admissibility of other-crimes evidence. A straightforward application of that Rule leads to the conclusion that defendant suffered no error due to the admission of the disputed evidence about his former indictment. That evidence was relevant to material issues in dispute at trial, namely defendant's motive for having Mosley killed, his intent that Graves kill Mosley, and the plan that he formulated with Graves on how to kill Mosley. Moreover, the introduction of this evidence was not overly prejudicial. It was admitted for the proper purpose of explaining why defendant committed this particular crime. Although the trial court did not analyze all of the evidence under Rule 404(b), it did provide appropriate jury instructions to limit the prejudice suffered by defendant as if all the evidence had been scrutinized through Rule 404(b)'s filter. In sum, this Court's independent analysis leads to the conclusion that the evidence in issue would have been admissible under Rule 404(b). Defendant suffered no error, let alone reversible error, as a result of the admission of the evidence. (pp. 21-35)

2. The various positions taken by counsel, the trial court, and the Appellate Division as to how to analyze the disputed misconduct evidence demonstrate that there exists confusion and uncertainty about the use of the common law doctrine of res gestae, and its very status as a viable feature of New Jersey's evidence jurisprudence. Res gestae translates from Latin as "things done," and from that translation springs its conceptualization both as an independent hearsay exception and as a shorthand reference to intrinsic evidence of a singular transaction or event. The uses of res gestae as a hearsay exception are now recognized as the predecessors to the codified hearsay exceptions in the Rules of Evidence. The codified Rules should be applied to hearsay evidence of all forms, including that which has heretofore been described as res gestae. (pp. 36-49)

3. The more confounding use of res gestae arises in its complication and derailing of the analysis of misconduct evidence called for under Rule 404(b), a problem this case so well demonstrates. Evidence that is intrinsic to the charged crime (which directly proves the offense or concerns acts performed contemporaneously with the offense) must only satisfy the evidence rules relating to relevancy. See Evid. R. 401, 402. Rule 403 provides for the admission of such evidence unless its probative value is "substantially outweighed" by it prejudice. Evidence of uncharged misconduct that is not intrinsic evidence of the crime is inadmissible unless proffered for a proper purpose. Such evidence can be admitted only under the more stringent requirements of Rule 404(b). The Court directs trial courts to make the Rules of Evidence the touchstone for the analysis of all bad acts categories of res gestae evidence, and disapproves further use of res gestae to support evidential rulings. (pp. 49-62)

The judgment of the Appellate Division is AFFIRMED AS MODIFIED.

JUSTICE RIVERA-SOTO, joined by JUSTICE HOENS, has filed a separate opinion, CONCURRING IN PART and DISSENTING IN PART, expressing the views that the majority's discussion of the doctrine of res gestae is plain dicta, deserving of no jurisprudential value; and the majority's reasoning and conclusions regarding the doctrine are ill-conceived and simply in error.

CHIEF JUSTICE RABNER; JUSTICES LONG, and ALBIN; and JUDGE STERN (temporarily assigned) join in JUSTICE LaVECCHIA's opinion. JUSTICE RIVERA-SOTO filed a separate opinion concurring in part and dissenting in part in which JUSTICE HOENS joins.

Argued January 4, 2011

JUSTICE LaVECCHIA delivered the opinion of the Court.

Defendant Zarik Rose was convicted, as an accomplice, of the purposeful murder of Charles Mosley. The State's theory at trial was that defendant arranged for the murder while in jail and about to go to trial on earlier charges that he had attempted to murder the victim. In this appeal, we address whether evidence of defendant's previous indictment and incarceration on the pending attempted murder charges was admissible in defendant's trial for murder.

The disputed evidence was introduced at trial through several sources, two of which deserve to be highlighted. Larry Graves testified that, while he and defendant were in jail together and Graves's release date was approaching, defendant solicited him to kill Mosley. In fact, Graves pled guilty to aggravated manslaughter for killing Mosley and, pursuant to his agreement with the State, testified against defendant. Salvatore Puglia, who also met defendant while the two were in jail, testified that defendant had mentioned having Mosley "whacked" or making sure he did not testify in connection with the pending attempted murder charge against defendant. The State's evidence about defendant's pending indictment for attempted murder of Mosley, addressed through the anticipated testimony of Puglia and Graves, was reviewed pretrial by the trial court and declared admissible. The court determined that Graves's testimony was admissible as res gestae, but circumspectly provided the jury with a limiting instruction about the use of the evidence. As for Puglia's testimony, the trial court analyzed it under the rubric of New Jersey Rule of Evidence 404(b), found that it was not evidence of another crime but rather was evidence that involved this crime, and admitted the testimony after concluding that its probative value was not outweighed by its prejudicial effect. The court again provided a limiting instruction to channel the jury's use of that evidence. During the trial, defendant stipulated to the admission of a copy of his indictment on the attempted murder charges.

Defendant was convicted of purposeful murder and, on appeal, the Appellate Division affirmed. However, in specifically finding no error in the admission of the disputed evidence, the panel engaged in a fundamentally different analysis based on Evidence Rules 401 and 403. We issued a limited grant of certification, State v. Rose, 203 N.J. 96 (2010), to address only the admissibility of the evidence pertaining to defendant's prior indictment and incarceration on charges that he attempted to murder the victim, and now affirm the judgment of the Appellate Division. We conclude that the disputed evidence was admissible under a straightforward application of Evidence Rule 404(b). The evidence went to non-propensity purposes, chiefly motive, but also plan and intent by defendant, and the trial court provided instructions that properly limited the jury's use of the evidence to those legitimate purposes.

That said, the various positions taken by counsel, the trial court, and the Appellate Division on how to analyze the disputed evidence relating to defendant's previous indictment on charges for the attempted murder of the victim, demonstrate that there exists confusion and uncertainty about use of the common law doctrine of res gestae and its status as a viable feature of New Jersey's evidence jurisprudence. Accordingly, we address in this appeal the continued invocation of res gestae as an explanation for the admission of evidence, and hold that the doctrine of res gestae no longer has vitality in light of the formal Rules of Evidence.


To set the stage for our review of the evidential rulings in issue, we begin with a recitation of the facts involved in the criminal charges against defendant.


In 1995, defendant was incarcerated on charges relating to the attempted murder of Charles Mosley, the murder victim in the present appeal. While in jail, defendant met Puglia,*fn1 and explained to him that he and Mosley had an altercation over $1500 that Mosley owed him. According to Puglia, defendant told him that during that altercation "one thing led to another" and that Mosley subsequently "pressed some serious charges" against defendant that defendant felt were "overinflated." Defendant told Puglia that he did not want Mosley to appear as a witness against him at trial and that "plan A was to pay [Mosley] off and plan B was to get him whacked."

In the fall of 1997, while still in jail awaiting trial on the attempted murder charges, defendant became acquainted with Graves, a fellow inmate. According to Graves, defendant told him on several occasions that he needed Mosley killed because his trial was scheduled to start on December 1, and Mosley was to be the prosecution's key witness. When Graves informed defendant that he was soon to be released from jail, defendant propositioned him: if Graves would kill Mosley, defendant would give him $2,000 to $3,000 and a quantity of drugs.

Graves agreed, so defendant conveyed pertinent details about Mosley: defendant gave him Mosley's telephone number and address in Franklinville, New Jersey, and told him that Mosley sold automobiles from his home. They planned to have Graves express interest in a truck with an automatic lift, use that interest to gain entrance into an office located at the front of Mosley's house, and then kill Mosley. Defendant also warned Graves that Mosley kept guns in his house. They further agreed that after the deed was done, Graves would inform defendant whether he had "sold the car," which was code for having killed Mosley.

When Graves was released from jail on November 19, 1997, he went to his step-mother's home in Glassboro, and from there, took a bus to Franklinville the next day. When he arrived at Mosley's house, he found no one home, and his attempts to contact Mosley by telephone were unsuccessful. That night, defendant placed a collect call to Graves and asked whether Graves had "sold the car," to which Graves responded that he had not, but that he planned to return to Mosley's the following day. Graves returned to Mosley's home the next day; again no one was home, but this time Graves managed to contact Mosley by phone. That night, defendant again called Graves and asked whether he had "sold the car." When Graves responded in the negative, defendant sounded a "little bit . . . worried;" he instructed Graves to return the following day.

Graves returned the next day for a third time and found Mosley at home. He told Mosley that he wanted to speak with him about a truck and was invited into Mosley's office. As the conversation progressed, Mosley seemingly grew suspicious of Graves. Mosley pointed to a cracked window, told Graves that someone had tried to break into his house, and that that individual was now "in the cemetery." Graves grew "uneasy" and "uncomfortable" and rose to leave, having changed his mind about carrying out the plan. As he walked towards the door, Graves "mentioned something about [defendant]," at which point Mosley "jumped up and grabbed a crowbar or a lug wrench" from the side of his desk and swung it at Graves. Graves managed to dodge the object, grab Mosley, and the two began to wrestle. Graves gained control of the object and used it to strike Mosley in the head. Graves then choked Mosley until he appeared to be dead. Graves took a "few hundred dollars" from Mosley's wallet and searched the house for weapons, but came up empty-handed. That night, Graves received another call from defendant, whom he told that he had "sold the car."*fn2

As a result of Mosley's death, the charges against defendant were dropped in December 1997, and he was released from jail. He went to Graves's house, thanked him, and told him that he would get the money to pay him soon, but he never actually paid Graves. Defendant also cautioned Graves not to tell anyone about what had happened.

Although police suspected that defendant was involved in Mosley's death, they were unable, initially, to connect him to the murder. The only forensic evidence that the police collected was a fingerprint that did not produce any matches when entered into the Automated Fingerprint Identification System.

However, a few months later, an undercover sting operation led to Puglia's arrest for distribution of marijuana.*fn3 The officers who interviewed Puglia believed that he would be able to help them connect defendant to Mosley's death. Puglia agreed to wear a "wire" to record his conversations with defendant*fn4 and a consensual intercept authorization was obtained from the prosecutor's office. Detective Danielle Lorusso, acting undercover as Puglia's girlfriend, drove Puglia and defendant around. On February 8, 1998, when Puglia spoke with defendant about having someone who had set him up killed, defendant cryptically referenced his situation with Mosley a few times, including the following recorded exchange:

[Puglia]: That pussy was talking s**t last night man. [Defendant]: Yo, I mean it won't even cost you that much to get him (indiscernible). [Puglia]: To get him f**ked up. [Defendant]: Oh just, I mean I don't think you gonna, it's really not worth killing them, but I mean it, with me it was either, it was a life or death situation, it was either my life all that time behind bars ... [Puglia]: What'd they offer you[?] [Defendant]: Or his life. Twenty years man. [Puglia]: Oh twenty years? [Defendant]: Yeah. [Puglia]: Not twenty stip? [Defendant]: No ten stip. Come on man what the, what the f**k, you know, what, (indiscernible) gonna be and my daughter would have been nineteen years old when I got out. F**k that. [Puglia]: God damn. [Defendant]: Ain't no f**king way in hell, f**k him, he, he got exactly what he deserves.

The following week, as Detective Lorusso was driving Puglia and defendant, she passed by Mosley's house and defendant gave Puglia a "thumbs up sign." A few days later she again drove them past the house and this time defendant "performed a digging motion like he was shoveling" and again gave a "thumbs up sign."

A warrant was issued for defendant's arrest on charges of conspiracy to commit assault.*fn5 He was arrested on February 20, 1998 and informed of his Miranda*fn6 rights, which he waived. Eventually, defendant gave a videotaped statement in which he discussed Mosley's murder, but denied any involvement. Defendant stated that shortly after he was released from jail a "friend" whom he met in jail stopped by his mother's house. The friend, who defendant claimed knew Mosley from prior drug transactions, told defendant that he had gone to Mosley's house and had robbed and killed Mosley. The friend said that he had choked Mosley and then searched the house for money and jewelry, taking over $1,000. The friend thought that he was doing defendant a favor because of the attempted murder charges that defendant was facing. Defendant told his friend that he made "a big mistake" and "endangered" both of them by killing Mosley, but assured his friend that he would keep quiet.

When defendant was asked who his "friend" was, he replied that his friend's nickname was "Zboo" and that his real name was Larry Brooks. It was soon discovered that defendant was mistaken and defendant confirmed that the friend's name was actually Larry Graves. Defendant stated that he did not know where Graves lived, but that he had Graves's phone number and pager number at his mother's house. Defendant told the officers that he was willing to wear a wire and to talk to Graves in an effort to confirm his version of events. A consensual intercept authorization was obtained that night and defendant was driven to his mother's house so that he could get Graves's phone and pager numbers. Defendant was allowed to enter the house alone. He did not come out. Police searched the house to no avail; they discovered his body wire discarded in the backyard.

On February 28, 1998, an expert compared the fingerprint found at the scene of Mosley's murder to Graves's fingerprints and confirmed that it was a match for Graves's right thumb. Despite the match, Graves was not arrested until seven years later, on March 3, 2005. Police interviewed him twice; both were taped. During the first interview Graves denied killing Mosley. However, when confronted with the fact that his fingerprint was found at the murder scene and shown the videotaped statement that defendant had given implicating him in Mosley's murder, Graves admitted that he had killed Mosley and informed the police about defendant's involvement. Graves stated that he had gone to Mosley's house to make Mosley drop the charges against defendant and that he was not planning on killing Mosley. Graves eventually pled guilty to aggravated manslaughter in exchange for the recommendation of a sentence between twenty-five and thirty years of imprisonment, with an eighty-five percent period of parole ineligibility. As a condition of his plea, Graves had to testify against defendant, and his sentencing hearing was still pending at the time of defendant's trial.

On March 9, 2005, police learned that defendant had been arrested in Vineland on outstanding warrants. Defendant was interviewed and denied knowing Graves, claiming that he did not remember providing a taped statement to police in 1998 implicating Graves in Mosley's murder.


A Gloucester County grand jury indicted defendant on charges that he was an accomplice to purposeful murder, N.J.S.A. 2C:11-3(a)(1) and 2C:2-6, and to felony murder, N.J.S.A. 2C:11-3(a)(3) and 2C:2-6. A pretrial Rule 104 hearing was held on January 23, 24, and 25, 2007, in which defendant challenged the admissibility of: (1) his videotaped statement to police; (2) proposed testimony by Graves and Puglia of their discussions with defendant about Mosley while each was in jail; and (3) the surveillance audio tapes recorded when Puglia was wearing a wire. The motion court determined that: (1) defendant knowingly and intelligently waived his Miranda rights and that his videotaped statement was therefore admissible; (2) defendant's discussions with Graves and Puglia about having Mosley killed were admissible; and (3) some portions of the surveillance tapes were admissible.

At trial, defendant did not testify or call any witnesses on his behalf. His trial strategy, as he argued on appeal, was that he had merely asked Graves to try to persuade Mosley to drop the charges against him; that Graves had intended to do nothing more, but had killed Mosley in self-defense when Mosley had attacked him with a tire iron; that any of defendant's statements to Puglia that suggested otherwise represented mere "talk," and were not credible; and that Graves had falsely implicated defendant in order to get the benefit of a favorable plea bargain.

The jury convicted defendant of being an accomplice to purposeful murder and an accomplice to felony murder. At sentencing, the court merged defendant's felony murder conviction into his conviction for purposeful murder and granted the State's motion to sentence defendant to an extended term as a persistent offender under N.J.S.A. 2C:44-3(a).*fn7 The court sentenced him to forty-five years in prison with a thirty-five year period of parole ineligibility.

On appeal, defendant raised three arguments: (1) that, in general, all evidence relating to the fact that he was incarcerated on charges of the attempted murder of Mosley when Mosley was killed was improperly admitted; (2) that the jury charge should have included accomplice to aggravated manslaughter, a lesser-included offense of murder;*fn8 and (3) that his motion for an acquittal on the felony murder charges was improperly denied because there was no rational basis for finding him guilty of felony murder. The Appellate Division rejected defendant's arguments, and affirmed his conviction and sentence.


Because the limited grant of certification in this appeal focuses on the evidential rulings, the details of the Rule 104 hearing require elucidation, as do the trial court's and the Appellate Division's analytic approaches to the disputed evidence.

At the Rule 104 hearing, defense counsel argued that allowing Graves and Puglia to testify about their conversations would unduly prejudice defendant because it would require him to defend not only the current charges concerning the murder of Mosley, but also the earlier charge of attempted murder of Mosley because that was the reason that defendant was in jail and ostensibly had Mosley killed. Counsel also raised the applicability of Rule 404(b), arguing that it should require exclusion of the evidence.

The prosecutor argued in response as follows:

The other issues with 404-B before the Court were the discussions, which Mr. Puglia begrudgingly testified to from the stand, that he had with Mr. Rose in jail about having the guy not show up either by paying him off by or having him whacked.

The prior Indictment that was marked, I would submit, goes to motive.

The other 404-B -- I don't even know if it's 404-B but it's just a -- it's just planning. There's Mr. Graves' testimony. There are jail records at some point, which would be proffered, to corroborate housing situations with he and -- with Mr. Graves and Mr. Rose, as well as Mr. Rose and Mr. Puglia.

Mr. Puglia was brought in to give context to that and to discuss background, as far as he and Mr. Rose. How he knew him, et cetera. But also to discuss prior discussions that he had with Mr. Rose, although they were I guess the summer before '96.

So I would submit under either a motive analysis, planning and intent analysis and as I said in my case, the res [gestae] analysis, which I'm not real big on -- I guess that's Latin. I don't know. But it basically talks about all these things come from the same cloth.

That you can't just take a piece out because it's part of the mosaic of the events that took place here and that's what this is. I mean, this whole case is going to be a mosaic of people coming in and they're saying their bits and pieces as to what they know about this. And what this hearing this week was, was a couple of the pieces of the mosaic.

And to say that they aren't relevant or aren't pertinent under Cofield,*fn9 I think is incorrect, as I stated in my Brief for the reasons I stated in my Brief. They are relevant. They are pertinent. They do explain issues such as motive. Whether it's believed or not is a jury issue.

They do explain motives like intent. They do explain issues of planning. They do explain issues of how these witnesses know each other. And under Cofield, I think it satisfies all the prongs of Cofield, as was previously set forth in my Brief, which I'm not going to sit here and reread that to the Court.

But for 404-B, those were the items that I sought to admit and those were the reasons that they were sought to be admitted. And I think that they're properly presented to the Court and they're properly relevant and properly admissible.

The trial court placed an oral decision on the record, reasoning that the proposed testimony of

Graves, concerning the killing of Mr. Mosley and the reason therefore, does directly relate to the commission of the crime charged in the Indictment.

And I don't find 404 applies to that. That's -- res [gestae], as Mr. Gangloff said, is a term that is used. I know when I was in law school, I thought we were told that res [gestae], you shouldn't use that with regard to evidence. You should find a real rule that applies and that was kind of general language.

But it seems back in the case law and basically talks about, as I read it, as being part of the crime itself. It's so woven into that that it needs to be part of the evidence. That the 404-B analysis doesn't really apply. And I find that with regard to Mr. Graves' testimony regarding what happened in the jail.

A different question arises, a slightly different question with regard to Mr. Puglia's testimony of the discussions in jail by the Defendant. Mr. Graves alleges he was solicited. Mr. Puglia wasn't solicited. There were merely conversations in the jail regarding this.

And I do find that a 404-B type of analysis would come into play with regard to that in a sense. Although it is evidence frankly not of another crime, which is one of the Cofield factors. Is the evidence of the other crime must be admissible as relevant to a material issue.

There really is evidence of this crime, evidence to show motive and intent and plan and so forth. So there are items under 404-B that clearly relate to this evidence, although it isn't a traditional 404-B type of evidence because it ...

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