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State of New Jersey v. Gary Suttle


June 10, 2011


On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 04-10-1327.

Per curiam.


Argued April 4, 2011

Before Judges Reisner, Sabatino and Ostrer.

Defendant Gary Suttle was convicted of first-degree murder, N.J.S.A. 2C:11-3a(1), (2), and was sentenced to fifty-five years in prison, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. This was his second trial. Defendant's first trial resulted in a hung jury on the murder count and an acquittal on a charge of possession of a weapon (a hammer) for an unlawful purpose, N.J.S.A. 2C:39-4d. The re-trial resulted in the murder conviction.

On this appeal defendant raises three issues: the Double Jeopardy Clause barred a re-trial on the murder charge; the trial court erroneously excluded evidence of third-party guilt; and the court erroneously excluded evidence of the victim's statement of a present sense impression. We reject defendant's first argument, but agree with his second and third arguments. We reverse his conviction and remand this matter to the trial court for a re-trial on the murder charge.


We will discuss the pertinent facts when we address each legal issue, but we begin with the following brief overview. Lois Zukowitz,*fn1 a sixty-year-old woman, was beaten to death with a hammer. The crime occurred on the evening of March 11, 2004, in her apartment in Elizabeth. The police found her body after the tenant in the apartment next door called 9-1-1 to report a possible domestic violence incident. According to the tenant, he heard Lois screaming and yelling, a man's voice repeatedly telling her to "shut up," and the sound of someone "being hit."

When the police entered her apartment, they found the premises had been "ransacked," with drawers "all over the place." They found several bloody footprints, which were later matched to a pair of sneakers that defendant owned, and they found a jacket and a set of keys that were later traced to defendant. They also found a hammer with the victim's blood on it. They did not find defendant's DNA material or fingerprints on the hammer.

Lois was an addict who also sold drugs and was known to keep drugs in her apartment. Defendant was the middleman who obtained heroin for her. He admitted that on the day of the murder, he went to her apartment to arrange to buy some drugs for her. He left his jacket in her apartment, and returned some time later to deliver the drugs to her. He testified that when he arrived back at her apartment, he found her lying dead on the floor. Fearful that, if he called the police, he would be blamed for the murder and would get in trouble because he had drugs in his possession, he fled the apartment through a window and exited down the fire escape.


Defendant raises the following points for our consideration:







We begin by addressing defendant's Double Jeopardy claim. As the United States Supreme Court held in Ashe v. Swenson, 397 U.S. 436, 445-46, 90 S. Ct. 1189, 1195, 25 L. Ed. 2d 469, 476-77 (1970), the Double Jeopardy Clause of the Fifth Amendment includes the bar of collateral estoppel. Defining collateral estoppel as follows - "when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit" - the Court explained that the doctrine applied "'to a former judgment in a criminal case.'" Id. at 443, 90 S. Ct. at 1194, 25 L. Ed. 2d at 475 (quoting United States v. Kramer, 289 F.2d 909, 913 (2d Cir. 1961)). Collateral estoppel may bar a later prosecution where the jury's acquittal in a prior case necessarily demonstrated its rejection of the essential facts on which the State sought to base the second prosecution. See State v. Cormier, 46 N.J. 494, 509 (1966).

In Yeager v. United States, ___ U.S. ___, 129 S. Ct. 2360, 174 L. Ed. 2d 78 (2009), the Court held that when a defendant is acquitted on some charges and obtains a hung jury on others, collateral estoppel principles may apply to the State's attempt to retry the defendant on the "hung counts." Id. at ___, 129 S. Ct. at 2368-69, 174 L. Ed. 2d at 90. In deciding a collateral estoppel argument, the jury's failure to return a verdict must be treated as a "nonevent." Id. at ___, 129 S. Ct. at 2367, 174 L. Ed. 2d at 88. That is, the trial court must not speculate on the jury's reasons for being unable to return a verdict on some counts, and instead should focus on the significance of the acquittal. Id. at ___, 129 S. Ct. at 2367-68, 174 L. Ed. 2d at 89-90.

The Court cautioned that this focus should not be mechanical or technical, but practical, in light of the way the first case was actually tried. Id. at ___, 129 S. Ct. at 2367, 174 L. Ed. 2d at 88. Thus, a court hearing a Double Jeopardy motion based on collateral estoppel must closely scrutinize the record of the first trial to determine what was actually put in issue and necessarily decided by the jury:

In Ashe, we squarely held that the Double Jeopardy Clause precludes the Government from relitigating any issue that was necessarily decided by a jury's acquittal in a prior trial. In that case, six poker players were robbed by a group of masked men. Ashe was charged with--and acquitted of--robbing Donald Knight, one of the six players. The State sought to retry Ashe for the robbery of another poker player only weeks after the first jury had acquitted him. The second prosecution was successful: Facing "substantially stronger" testimony from "witnesses [who] were for the most part the same," Ashe was convicted and sentenced to a 35-year prison term. We concluded that the subsequent prosecution was constitutionally prohibited. Because the only contested issue at the first trial was whether Ashe was one of the robbers, we held that the jury's verdict of acquittal collaterally estopped the State from trying him for robbing a different player during the same criminal episode. We explained that "when an issue of ultimate fact has once been determined by a valid and final judgment" of acquittal, it "cannot again be litigated" in a second trial for a separate offense. To decipher what a jury has necessarily decided, we held that courts should "examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration." We explained that the inquiry "must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings." [Id. at ___, 129 S. Ct. at 2366-67, 174 L. Ed. 2d at 87-88 (emphasis added; internal citations omitted).]

Yeager was decided a year after the judge in this case decided defendant's Double Jeopardy motion. However, the motion judge, who had also presided over the prior trial, engaged in a similar analysis, considering what was in issue in the first trial. We have likewise read the record of the first trial, with an eye to how the case was tried, how the jury was charged, and whether "a rational jury" hearing that case could have acquitted defendant of possessing a weapon (in this case, the hammer) for an unlawful purpose, on a basis that would not be inconsistent with the State's theory that he killed the victim with the hammer. Ibid. Of course, in that analysis, we focus on the acquittal and do not speculate on why the jury deadlocked on the murder charge. Id. at ___, 129 S. Ct. at 2367-68, 174 L. Ed. 2d at 89-90.

In the first trial, the prosecutor set forth the State's theory of the murder charge in his opening statement: "this defendant beat Lois Zukowitz to death with a hammer." However, he said nothing about the charge of possession of a weapon for an unlawful purpose. Defense counsel's opening likewise focused solely on the murder charge, although he stressed that defendant's fingerprints and DNA evidence were not found on the hammer.

The only person who "witnessed" the crime was Jamie Brown, the tenant in the apartment next to the victim. Brown testified that on March 11, 2004, at around 11:00 p.m., he "heard the lady next door screaming," although the screaming sounded "muffled." He also heard a man's voice "telling her shut up, shut up, shut up." He then heard what sounded like someone being "punched." Believing that the victim's "boyfriend" was beating her up, he called 9-1-1 and reported a suspected domestic violence incident.

When the police arrived ten to fifteen minutes later, they found the victim's apartment door unlocked. They entered the apartment and found the victim's body. Forensic evidence revealed that she had been killed by repeated blows to the head from a blunt instrument. She also had defensive injuries on her hands and arms. In the same room with the body, the police found a bloody hammer. The shapes of the victim's wounds were consistent with the shape of the hammerhead. The hammer bore DNA consistent with that of the victim and another unidentified female. Neither defendant's DNA nor his fingerprints were found on the hammer.

Defendant eventually became a suspect, and a search of his residence turned up a pair of sneakers that matched bloody footprints found at the crime scene. The State also presented evidence that the victim was a drug addict who was taking methodone for her addiction but was also buying heroin.

There was evidence that defendant was the middleman who supplied the victim with the heroin. In his testimony defendant admitted that he obtained heroin for her. According to defendant, on the day of the murder, he met Lois at her apartment. She gave him some money to buy heroin for her. Leaving his jacket at her apartment, he departed for Newark, where he bought the heroin. He then called her to find out if she was ready for him to come back to her apartment, but she told him she was not ready yet. When he finally returned to her apartment, it was night time. Arriving at the apartment, he found the door ajar. He pushed it open, and called to her but got no response. He then entered the apartment, which was in "disarray," and found Lois's body.

Believing that the police would immediately accuse him of the murder because he was "a black person in [the] Elmora section of town," and she was an older white woman, he did not call the police. Instead, fearing for his own life, he fled through a window and down the fire escape, leaving his jacket in the apartment. He denied that he killed Lois. In his statement to the police, which was read into evidence, he denied seeing a hammer in the apartment.

At the charge conference, all counsel agreed that the judge should not charge the jury with any lesser included offenses to murder. Therefore the jury was only charged as to murder and possession of a weapon for an unlawful purpose.

In their summations, neither attorney referred to the weapons charge. Defense counsel argued that if defendant was the murderer, his DNA should have been on the hammer. However, his main arguments were that defendant was credible; that the hostile way the police treated Jamie Brown, the black man who reported the crime, corroborated defendant's opinion that it would be dangerous for a black man to call the police to the scene; that the victim's estimated time of death was consistent with defendant's testimony that she was dead when he arrived; and that the crime scene, in which the bloody footprints were not covered by any debris, was consistent with defendant's testimony that he entered the apartment after someone else had ransacked it.

The prosecutor focused on rebutting those arguments, citing the circumstantial evidence of defendant's guilt. She also argued that the murderer had to be someone who knew the victim, because the brutality of the crime suggested that it was "personal" and must have stemmed from "the relationship that this defendant had with the victim." Not once in her summation did the prosecutor mention the weapons charge or explain how it related to the case or how the State had proven that charge. Nor, obviously, did she ask the jury to convict defendant of that charge.

Applying Yeager in the context of the first trial, we must decide "'whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.'" Yeager, supra, ___ U.S. ___, 129 S. Ct. at 2367, 174 L. Ed. 2d at 88 (quoting Ashe, supra, 397 U.S. at 444, 90 S. Ct. at 1194, 25 L. Ed. 2d at 475-76). We cannot conclude that defendant's acquittal on the charge of possession of a weapon for an unlawful purpose amounted to a finding that he did not kill the victim with the hammer and, therefore, collaterally estops the State from re-trying him for murder. This case is not like Ashe, where the first trial for robbing one of the poker players turned on whether defendant was one of the gang of robbers who held up the poker game. Ashe, supra, 397 U.S. at 445, 90 S. Ct. at 1195, 25 L. Ed. 2d at 476. Nor is it analogous to Yeager, where defendant's alleged possession of inside information was the focus of the first trial and necessarily would be the focus of the second trial. Yeager, supra, ___ U.S. ___, 90 S. Ct. at 2368-69, 174 L. Ed. 2d at 90.

Defendant's first trial did not turn on whether he possessed the hammer or his intent in possessing it. The trial focused more generally on whether he was the killer. In fact, far from presenting "a critical issue of ultimate fact" in the first trial, id. at ___, 129 S. Ct. at 2368, 174 L. Ed. 2d at 90, the weapons charge was a non-issue in that trial. As the case was actually tried, the weapons offense was a "throwaway" charge, which the State made no effort to prove. Neither attorney addressed that charge or explained what evidence supported or did not support it. Thus, when the judge gave the jury the charge on possession of a weapon for an unlawful purpose, the only factual tailoring was the judge's explanation that "[i]n this case the unlawful purpose alleged by the State is that the defendant possessed the weapon in order to beat Lois Zukowitz to death."

To obtain a conviction for possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d, the State must prove four elements:

(1) the item possessed was a weapon within the meaning of N.J.S.A. 2C:39-1r; (2) the defendant possessed the weapon with knowledge or awareness of control over the weapon; (3) the defendant's purpose or conscious objective was to use the weapon against the person or property of another; and (4) the defendant intended to use the weapon in a manner proscribed by law. [State v. Villar, 150 N.J. 503, 510 (1997).]

The fourth element requires the State to prove that the accused possessed the weapon "with the actual purpose of using the weapon against another in a criminal manner." State v. Harmon, 104 N.J. 189, 204 (1986).

In the first trial, the jury heard testimony and arguments from which they could have inferred that the murder was a crime of passion or anger. They heard testimony from Brown that a man was telling Lois to "shut up, shut up, shut up" and that Brown thought domestic violence was occurring. The prosecutor also argued that the crime was "personal" and was overkill based on the number of blows struck. Reasonable jurors might well have found that: the killer did not bring the hammer to the scene; and the killer was either using the hammer for some non-violent purpose when Lois said something to enrage him, or the killer became suddenly enraged and grabbed the first object at hand and hit Lois with it.

Thus, the jury could have concluded that the killer acted in a blind, instantaneous rage and did not have time to form the purpose or conscious objective to possess the hammer as a weapon or to possess it with knowledge or awareness of control of the hammer, even if he intended to kill Lois. See Villar, supra, 150 N.J. at 513 (discussing possible defenses where a defendant hits the victim with an object that may be lawful to possess); Harmon, supra, 104 N.J. at 203 (explaining that "possession for an unlawful purpose incorporates the concept of specific intent"). Or, the jury could simply have decided that the State, which had offered no explanation to them whatsoever as to how the evidence proved the weapons charge, had failed to prove the charge beyond a reasonable doubt.*fn2

As a leading commentator noted in discussing N.J.S.A. 2C:39-4:

[A] finding of not guilty under this section does not preclude a finding of guilt as to armed robbery, aggravated assault or other offense in which a [weapon] was used . . . because although defendant must have used or possessed a weapon in those offenses he may not have possessed it with the intention of committing any crime. [Cannel, New Jersey Criminal Code Annotated, comment 3 on N.J.S.A. 2C:39-4 (2010).]

Addressing seemingly inconsistent verdicts, in State v. Mieles, 199 N.J. Super. 29 (App. Div.), certif. denied, 101 N.J. 265 (1985), we likewise observed:

The verdict here may simply have reflected a finding by the jury that while defendant did not originally possess the weapon for unlawful use the difficulties between defendant and [the victim] triggered the aggravated assault and armed robbery. There would be no inconsistency in the verdict, for the possession count related to the purpose for which defendant possessed the gun and not how he used it. [Id. at 41.]

Defendant was not charged with possessing the hammer as well as possessing it for an unlawful purpose. Therefore, this case is not analogous to one in which, for example, a defendant is acquitted at the first trial of both possessing the gun known to be the only possible murder weapon and of possessing it for an unlawful purpose. In those circumstances, a stronger argument might be made that acquittals on both charges could estop the State from attempting to prove in a second trial that the defendant killed the victim with that gun. Cf. State v. Kelly, 201 N.J. 471, 483-84 (2010) (declining to apply collateral estoppel where the first jury returned seemingly inconsistent verdicts convicting defendant of murder but acquitting him of possessing the murder weapons or possessing them for an unlawful purpose). But we need not address such an issue here.

Although the State's theory in the second trial, as in the first, was that defendant killed Lois with the hammer, the State did not need to prove that defendant possessed the hammer with an unlawful purpose in order to prove that he murdered her. Rather, the State was required to prove that defendant "purposely" or "knowingly" caused "death or serious bodily injury resulting in [the victim's] death." N.J.S.A. 2C:11-3(1), -3(2). On this record, we cannot accept defendant's argument that the first jury's verdict established, by principles of collateral estoppel, that defendant did not use the hammer to kill the victim. The first verdict therefore did not estop the State from retrying defendant on the murder charge.


We next address defendant's argument concerning the evidence of third party guilt. We begin by discussing what happened at the first trial, because the issue was first raised there, and the rulings made on that application influenced the proceedings at the second trial.

At an N.J.R.E. 104 hearing during the first trial, the defense sought to present evidence that someone else could have killed the victim. The application was based on a written, signed statement that Corinne Hartley-Willman (Corinne) gave to the police a week after the murder, concerning her brother James Hartley (James).

On March 18, 2004, Union County Prosecutor's Detective Barnwell and Elizabeth Police Detective Perez went to the investigations unit of the Monmouth County Jail to interview Corinne. According to a police report dated March 18, 2004, Corinne told an investigator from the Monmouth County Sheriff's Office that "her brother was involved in the murder" and she mentioned a bag of evidence that she hoped her brother had not thrown away. When Barnwell and Perez interviewed her, Corinne told them that "two or three days ago" her brother James told her "that he had to get money quick to leave the state" and that he had cashed two bad checks at a local bank to get funds for that purpose. She also told the detectives that about a week ago[,] Debbie [Silverstein] [,] my brother and I was riding in the truck and Debbie told me that she had this friend named Lois who was going to cash a check for Jimmy. Debbie told me that her friend Lois also had Xanax, pills and money in her house. My brother was telling me that Debbie was at the [methadone] clinic telling people that Lois has money, Xanax and all sort of thing[s]. . . . My brother turned to Debbie and told her to shut up.

Corinne also told the detectives that on the previous "Saturday or Sunday" her brother came over to her house and asked if he could wash some dirty clothes he had with him.*fn3 She offered to "wash them all for him." However, as she began to wash the clothes she "saw what looked like blood on a pair [of] blue or black jeans." She asked James if he had gotten into a fight and he "said yes." Corinne "thought nothing of it because he was always getting into fights." However, after she noted the blood, James would not let her wash any more of the clothes and took a second bag of clothing back from her.

In her signed statement, Corinne also recounted that James stayed over at her house and "when he was high he was telling me things like he had to leave because he was in trouble. He told me that he had to get out of the state, [as] far [as] California to be exact." According to Corinne, James had been to Lois's apartment "a lot with Debbie."

In her testimony at the N.J.R.E. 104 hearing on April 14, 2008, Corinne claimed that her statement to the police was not true and, in any event, she did not remember it. She testified that she was high on drugs when she gave the statement and her brother would never do anything wrong. But in the same testimony, she stated that her brother had "abused me mentally and physically" since she had "been a little girl." She further testified that when her mother and brother found out about the statement she gave to the detectives, they were very upset with her.

The defense also presented testimony from Detective Harvey Barnwell, who had taken the statement from Corinne. According to Barnwell, she did not appear to be intoxicated or unable to clearly remember events when she gave the statement. Nor did she seem angry with her brother. Barnwell admitted that he never interviewed James Hartley, although he spoke to James's father, who was "pretty sure" that his son was home on the night of March 11, 2004.

In excluding Corinne's statement, the judge determined that Corinne was not feigning lack of recollection; he concluded she really did not remember her 2004 statement to the police. He also concluded that introducing the statement at the trial would require a mini-trial that could last longer than the trial itself. He also found that the evidence of James' guilt was disconnected and remote from the actual crime. Hence, he barred defendant from presenting this evidence.

At the second trial, the State's case-in-chief was similar to the one that it presented at the first trial. The only significant difference was that a witness named Elaine Mitchell Thomas, a friend of the victim who admittedly did not like defendant, added some incriminating information that she had not mentioned when she testified at the first trial. At the second trial, Thomas testified that when she encountered defendant in Newark a few days after the murder, he asked her if she knew where he could dispose of some coins and jewelry. On seeing those items, Thomas recognized them as belonging to the victim.

After the State rested in the second trial, defense counsel once again sought permission to introduce evidence that James Hartley might have been the killer. In arguing this motion, both sides relied on the testimony and evidence presented at the N.J.R.E. 104 hearing conducted during the first trial. Again, the defense sought to establish that James knew Lois had drugs and money at her apartment, and that a few days after the murder he asked his sister to wash what appeared to be some bloody clothing and told her he needed to get out of town in a hurry because he was in trouble.

In addition to Corinne's statement, defense counsel sought to introduce evidence from another witness, Deborah Silverstein, who described herself as Lois's best friend. In a signed statement on March 15, 2004, Silverstein told the police that shortly before the murder, someone "was spreading a rumor that [Lois] had 500 [Xanax] pills and money." Silverstein also stated that she knew James Hartley because they both went to the same methadone clinic. She stated that a "couple of weeks before" the murder, she and James bought Xanax from Lois at Lois's apartment. When the detectives asked Silverstein why James Hartley had her "husband's death certificate and other personal paperwork belonging to you," Silverstein told them that Hartley "wanted to change his identity." She stated that she was also "going to give him" her marriage certificate. Silverstein also recalled an incident in which James had tried to get Lois to cash a check, but Lois had refused because she knew it was a bad check. Relying on State v. Fortin, 178 N.J. 540 (2004), the judge ruled that all of this evidence of Hartley's possible guilt was too speculative, and he denied the application.

However, the court did eventually permit the defense to present a small amount of evidence that someone other than defendant might have been hostile to Lois. During the State's case, defense counsel attempted to elicit from the neighbor, Jamie Brown, testimony that on the Sunday before the murder, he saw an "older white guy" and a woman outside Lois's apartment. The man was pounding on Lois's apartment door; Brown heard him "yelling at her" and heard Lois "yelling at him to go away." After hearing that testimony outside the jury's presence, the judge sustained the State's objection that this was inadmissible evidence of "third party guilt." However, after the N.J.R.E. 104 application at the end of the State's case, the judge changed his mind and ruled that the defense could present that testimony. Instead of re-calling Brown, the defense and the State agreed that the transcript of Brown's pertinent testimony would be read to the jury.

On this appeal, defendant contends that the trial court committed prejudicial error by precluding him from admitting evidence of third party guilt. We review the judge's decision for abuse of discretion. State v. Koedatich, 112 N.J. 225, 300 (1988), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989).

"Courts must provide criminal defendants with a "'meaningful opportunity to present a complete defense.'" State v. Cotto, 182 N.J. 316, 332 (2005) (quoting State v. Garron, 177 N.J. 147, 168 (2003)). In that regard, a defendant has a constitutional right to present evidence tending to show that a third party committed the crime of which the defendant is accused. State v. Timmendequas, 161 N.J. 515, 620 (1999).

A defendant of course may seek to prove that another agency produced the death with which he is charged. It would seem in principle to be sufficient if the proof offered has a rational tendency to engender a reasonable doubt with respect to an essential feature of the State's case. . . . We think it not enough to prove some hostile event and leave its connection with the case to mere conjecture. Somewhere in the total circumstances there must be some thread capable of inducing reasonable men to regard the event as bearing upon the State's case. The question of relevancy ultimately rests in a sound exercise of discretion. [State v. Sturdivant, 31 N.J. 165, 179 (1959), cert. denied, 362 U.S. 956, 80 S. Ct. 873, 4 L. Ed. 2d 873 (1960).]

The Court re-affirmed that standard in State v. Koedatich, adding that [t]he issue of whether the trial court abused its discretion in excluding evidence of third-party guilt is a particularly fact-sensitive one. In cases in which courts have held that the evidence was improperly excluded, some link was demonstrated between the third party and the victim or crime. As we stated in State v. Sturdivant, supra, 31 N.J. at 179, in the total circumstances there was "some thread capable of inducing reasonable men to regard the event as bearing upon the state's case." [Koedatich, supra, 112 N.J. at 300.]

Even if there is no evidence linking another specific suspect to the crime, "courts have recognized that evidence that tends to create reasonable doubt that someone else, generically, rather than defendant, committed the offense, is admissible." State v. Loftin, 146 N.J. 295, 345 (1996). Where there is evidence of the guilt of a specific third party, "[t]he evidence, in order to be admissible, need not establish a probability of a third-party guilt. There need only be proof capable of raising a reasonable doubt on the issue of defendant's guilt." State v. Millett, 272 N.J. Super. 68, 100 (App. Div. 1994) (citations omitted).

In Millett, the defendant was convicted of the armed robbery and murder of a gas station owner. Id. at 74. Defendant sought to introduce evidence that a masked man, identified as someone other than the defendant, was seen walking away from the gas station on the evening of the murder and sped up when he saw he was being watched. Id. at 99. We held this should have been admitted because "the proximity of time and place satisfies the relevance standard" for admission of third-party guilt evidence. Id. at 100.

On the other hand, in Koedatich, where defendant was accused of murdering a high school cheerleader, defendant sought to present evidence that a coach at the victim's school had made obscene phone calls to a telephone outside the cheerleaders' locker room, had reacted nervously when questioned about the murder, and owned a car of the general type observed near the murder scene around the time of the murder. Koedatich, supra, 112 N.J. at 297, 302, 305, 308. The Court held that the evidence was properly excluded as remote and speculative. Koedatich, supra, 112 N.J. at 302-06, 308, 311-12. Likewise, in State v. Fortin, supra, 178 N.J. at 592-93, the Court found no error in excluding evidence of the victim's drug dealing, because defendant failed to show any link between that activity and the murder. Also, if the evidence was admitted, on the theory that a drug-crazed fiend committed the murder, defendant's own drug history would have been admissible since he fit the profile of such a potential killer. Ibid.

In this case, the ransacking of the victim's apartment suggested that she was murdered by someone who was searching for something valuable there. There was evidence that the victim was a drug dealer who had heroin and other drugs in her apartment. The third-party-guilt evidence defendant sought to introduce would have shown the following: The victim's friends and acquaintances in the drug-using community, including James Hartley, knew or believed that she had a large amount of drugs and money in her apartment. James was a drug user who had purchased drugs from the victim and was familiar with her apartment. James was in need of money and tried to get the victim to cash a bad check, but she refused.

Two days after the murder, James asked his sister to help him wash some of his clothes. When she observed blood on a pair of jeans, he claimed he got into a fight and would not let her see the rest of the clothing. At that time, his sister believed his explanation, because he was always getting into fights, suggesting that he was violent and had a bad temper.*fn4 Shortly after the murder, James also told his sister that he was in trouble and needed to leave town quickly and move far away. To that end, he raised money by cashing two bad checks at a bank. He also told Silverstein that he was planning to change his identity and obtained some of her personal documents for that purpose.

We conclude that this evidence of third party guilt was more than remote and speculative. If the jury believed it, the evidence created a connection between James Hartley and the victim, and established a motive for James to murder the victim and ransack her apartment. His attempt, a couple of days after the murder, to wash bloody clothing, and his admission that he was in a "fight," tends to prove that he was involved in some kind of violent activity near the time of the murder. And he told his sister and a friend that he was in some serious "trouble" requiring that he change his identity and move far away. This evidence, together with Brown's testimony about a "white man" pounding on the victim's door and yelling at her a couple of days before the murder, could have "rais[ed] a reasonable doubt on the issue of defendant's guilt" and, hence, could have made a difference to the outcome of this trial. See Millett, supra, 272 N.J. Super. at 100.

Exclusion of the evidence about James Hartley is particularly troubling because defendant testified and his credibility was thus in issue. Defendant was telling a difficult story - he admitted being at the murder scene and finding the body, yet he denied killing the victim. Anything that unfairly detracted from his ability to convince the jury that his version might be plausible would be prejudicial error. We conclude that it was a mistaken exercise of the trial court's discretion to exclude the evidence of third party guilt.

"If there is a 'reasonable doubt as to whether the error denied a fair trial and a fair decision on the merits,' a new trial is required." State v. Bradshaw, 195 N.J. 493, 509 (2008) (quoting State v. Macon, 57 N.J. 325, 338 (1971)). See R. 2:10-2. Applying that standard, we conclude that the exclusion was prejudicial error requiring that defendant's conviction be reversed and the matter be remanded for re-trial.


This brings us to defendant's last point, concerning his testimony at the second trial. As at the first trial, defendant testified that he was the middle man who purchased heroin for Lois. On the day of the murder, he went to Newark to purchase heroin for her. He testified that he bought some heroin and delivered it to her and then returned to Newark to buy more heroin. This time he left his jacket at her apartment. He testified that before he left, Lois "paid me and told me [not] to come back until she met her peoples." The implication was that Lois was going to meet some drug customers.

After he bought heroin again in Newark, defendant called Lois to see if she was "ready for me to come back." The State objected to defendant's proposed testimony as to what Lois responded. Defense counsel responded that the purpose of the question was only to show the instructions that Lois was giving defendant. Outside the presence of the jury, defendant testified that Lois told him this: "No, she still was busy with her peoples." The judge ruled that this was inadmissible hearsay.

We conclude this was error. The response that she "still was busy with her peoples" was a statement of present sense impression. N.J.R.E. 803(c)(1). That rule makes admissible "[a] statement of observation, description or explanation of an event or condition made while or immediately after the declarant was perceiving the event or condition and without opportunity to deliberate or fabricate." Ibid. Under this rule, "a statement describing or explaining an event made while declarant was perceiving the event is admissible as a hearsay exception." Brown v. Tard, 552 F. Supp. 1341, 1351 (D.N.J. 1982).

In Brown, the State presented testimony from the decedent's boyfriend that, shortly before her death, he spoke to her over the telephone and she told him that "the man was there to fix the air conditioner." Id. at 1344. In rejecting defendant's petition for a writ of habeas corpus, the federal court held:

[The victim's] statement that a man was there to fix the air conditioner meets the requirements that the declarant personally perceive the event, that the statement explain or describe the event, and that there be contemporaneity of the statement and the event described. [The boyfriend's] testimony thus falls within the present sense impression exception to the hearsay rule.

[Id. at 1351.]

See also State v. Burris, 357 N.J. Super. 326, 330-32 (App. Div. 2002) (testimony that witness heard victim tell defendant, "[d]on't threaten to kill me," held admissible under N.J.R.E. 803(c)(1)), certif. denied, 176 N.J. 279 (2003).

Like the victim's statement in Brown, Lois's statement to defendant, that she "still was with her peoples," described her perception of an event or situation as it was then occurring. According to defendant, that was her explanation to him as to why he could not come to her apartment yet. While the State argues that the testimony was self-serving and defendant was not a credible witness, it was for the jury to decide what weight to give the testimony. We conclude it was a mistaken exercise of the trial court's discretion to exclude defendant's testimony about that statement.

Moreover, although not clearly argued by defense counsel, this was an important point for the defense, because it tended to show that there was someone else in the apartment with Lois around the time of the murder. While by itself this would not be plain error, considered together with the error noted in part III, it strengthens our view that the case must be re-tried.

In that context, we note an additional error that occurred at the second trial and should not recur on the next re-trial.

Although all counsel had appropriately agreed that the first trial would not be mentioned, during defendant's cross-examination the prosecutor asked defendant about his testimony "in the last trial." There was no objection. The prosecutor then peppered defendant with a series of questions that repeatedly referred to defendant having previously testified "in this courtroom," "from that chair" and before "this Judge." Those questions unambiguously and inappropriately cued the jury that there had been a prior trial. On the re-trial, such references should be avoided.

Reversed and remanded.

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