March 2, 2012
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
DAYSHOUN HARRIS, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 10-08-2030.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 16, 2012
Before Judges Cuff and Waugh.
We granted the State leave to appeal the Law Division's order barring it from using previously-taken photographs of defendant Dayshoun Harris holding a sawed-off shotgun at his trial arising from an armed robbery at which the State alleges he used the same sawed-off shotgun. We now affirm.
We discern the following facts and procedural history from the record on appeal.
Harris was indicted on August 31, 2011, and charged with the following offenses: second-degree conspiracy to commit robbery, contrary to N.J.S.A. 2C:5-2 and 2C:15-1 (count one); first-degree robbery, contrary to N.J.S.A. 2C:15-1 (count two); third-degree unlawful possession of a firearm without a permit, contrary to N.J.S.A. 2C:39-5(c) (count three); second-degree possession of a sawed-off shotgun for unlawful purposes, contrary to N.J.S.A. 2C:39-4(a) (count four); third-degree unlawful possession of a sawed-off shotgun, contrary to N.J.S.A. 2C:39-3(b) (count five); and fourth-degree resisting arrest, contrary to N.J.S.A. 2C:29-2(a) (count six).
The indictment was based on events that took place in East Orange on the night of June 14, 2010. The State contends that Harris and co-defendant Tatiana Watson approached the victim from behind, at which time Harris confronted him, held a sawed-off shotgun to the victim's head, and demanded his money. After the victim dropped to the ground, the State contends Watson took money from his pockets. Harris and Watson then left the scene.
The victim reported the robbery to the police, describing both of his assailants and the direction in which they had fled. The police arrived at the scene, located Harris and Watson, and arrested them. They were subsequently identified by the victim. During a search of the general area, the police located a sawed-off 12-gauge shotgun with all identifying marks removed. The victim identified the shotgun as the one used in the robbery.
Watson entered a plea of guilty to one count of third-degree theft from the person. At the time of the plea, she implicated Harris and agreed to testify at his trial. She subsequently signed a consent-to-search form for her cell phone, which had been seized at the time of her arrest. The search revealed six photographs of Harris holding a sawed-off shotgun that the State contends is the same one used during the robbery.
The State moved for an order allowing the use of the photographs at Harris's trial, despite the fact that they constituted evidence of other crimes or wrongs under N.J.R.E. 404(b). Harris opposed the motion. The trial judge held an evidentiary hearing on the motion. See N.J.R.E. 104.
Watson testified that she had received the photographs attached to an email from Harris on May 26, 2010, nineteen days before the robbery. She maintained that they were in substantially the same form as they had been when she received them. Watson did not know when the photographs had been taken, although she thought they had been taken in May. She did not know who took them.
Watson also testified that, other than the pictures, she had never seen Harris with a gun until the night of the robbery. She denied knowing that Harris had a gun with him that night until he took the shotgun out and pointed it at the victim. Watson did not testify that the shotgun in the pictures was the same shotgun Harris had with him on the night of the robbery.
The motion judge delivered an oral decision denying the motion on July 12, 2011. The implementing order was entered on July 14, along with a supplemental written opinion. In the written opinion, the judge explained her reasons as follows:
The facts, of the case at bar, have presented evidence that is relevant to the genuine fact in dispute, i.e., the possession of an instrumentality alleged to be a shotgun. The State's position is that it will seek to have the jury determine facts by displaying the weapon recovered and publishing the photos . . . to the jury. However, the State has failed to demonstrate that a prior crime was committed or the photograph depicts the shotgun recovered on the night of the alleged crime. Neither evidence of distinctive features of the gun nor that the gun depicted is a real gun was presented. The State's misplaced reliance on State v. Matulewicz, 115 N.J. 191 (1989) to advance the argument that allowing [N.J.R.E.] 404(b) evidence of the defendant's possession of some weapon on [an] undisclosed prior occasion would assist the jury in determining the absence of mistake and the defendant's planning of the present crime, as well as, his purpose and knowledge flies in the face of the evidence presented. The facts of this case are distinguishable from the case at bar. Specifically, the State has not presented evidence of possession of the same weapon on a prior occasion. (emphasis added). A leap is required to make that determination. Though the State contends the picture and accompanying testimony are admissible under a corroboration theory, and such admission is permissible to bolster the credibility of the State's witness. That theory has been rejected by our Supreme Court in State v. Darby, 174 N.J. 509 (2002).
Moreover the temporal remoteness of the photograph is still in question. The witness testified that she did not know when or who took the photos. Thus, an examination of the evidence presented does not satisfy the third prong of the test. Missing in the presentation of the case is evidence that the photos and the witness's testimony fulfill the clear and convincing standard of proof. Finally, the court is not persuaded that the probative value of the photographic evidence outweighs its inflammatory and prejudicial impact. This final element of the balancing test requires a searching inquiry and mandates a careful and pragmatic evaluation, based upon the specific context of the evidence presented. State v. Stevens, 115 N.J. 289, 303. Any limiting instruction to address the potential prejudice would not insure the defendant an unfettered factual consideration by the jury. Here the photographic evidence requires the jury to speculate and draw conclusions beyond their everyday knowledge and experience, as to what actually is depicted and when and who took the photographs.
Even a generous evaluation of the evidence presented cannot result in its admissibility. The State's proofs are lacking, in establishing the defendant Harris' actual possession of the instrumentality, the predicate proof the gun in the photo is real, as well as, the same gun used in the alleged crime. The inflammatory and prejudicial impact is too great. The balancing test advanced in State v. Cofield, [127 N.J. 328, 334 (1992),] clearly renders the evidence inadmissible.
Leave to appeal was granted on August 17, 2011.
On appeal, the State raises the following issues:
THE PHOTOGRAPHS DEPICTING DEFENDANT WITH THE SAME SAWED-OFF SHOTGUN USED TO COMMIT THE ROBBERY WERE ADMISSIBLE UNDER COFIELD AND THE TRIAL COURT'S ORDER PRECLUDING THE STATE FROM PRESENTING THEM WAS A CLEAR ERROR OF JUDGMENT. ACCORDINGLY, THIS COURT SHOULD REVERSE THE TRIAL COURT'S ORDER AND ALLOW THE STATE TO ADMIT THE PHOTOGRAPHS AT TRIAL.
We give "substantial deference" to a trial judge's evidentiary rulings, State v. Morton, 155 N.J. 383, 453 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001), and review them for abuse of discretion. State v. Burns, 192 N.J. 312, 332 (2007). Factual findings resulting from evidentiary hearings related to such rulings are also entitled to deference. State v. Robinson, 200 N.J. 1, 15 (2009). "Our review of a judge's purely legal conclusions, however, is plenary." State v. Handy, 412 N.J. Super. 492, 498 (App. Div. 2010) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)), aff'd, 206 N.J. 39 (2011).
When considering the admissibility of evidence of other crimes or wrongs under N.J.R.E. 404(b), we apply the standard adopted by the Supreme Court in Cofield, supra, 127 N.J. at 338. That standard requires a careful analysis of four factors:
1. The evidence of the other crime must be admissible as relevant to a material issue;
2. It must be similar in kind and reasonably close in time to the offense charged;
3. The evidence of the other crime must be clear and convincing; and
4. The probative value of the evidence must not be outweighed by its apparent prejudice. [Ibid. (citation omitted).]
If the trial judge conducts an appropriate analysis under Cofield, we will not disturb the judge's ruling on the admissibility of 404(b) evidence, absent a "'clear error of judgment.'" State v. Goodman, 415 N.J. Super. 210, 228 (App. Div. 2010) (quoting State v. Marrero, 148 N.J. 469, 483 (1997)), certif. denied, 205 N.J. 78 (2011).
In responding to the judge's questions prior to the delivery of her oral opinion, the State represented that its "sole purpose" in seeking to use the photographs at trial was to demonstrate "identification and access to the weapon." On appeal, the State now argues that the photographs are also relevant to the charge of possessing a weapon (shotgun) and intent to commit a robbery.
The State's basic premise in seeking reversal of the order excluding the photographs is that the shotgun in the picture is the same shotgun used in the robbery. That, however, is a fact that the State did not even seek to prove at the Rule 104 hearing. Watson was the State's only witness. She was never asked whether the shotgun in the photographs was the same shotgun she saw on the night of the robbery, and she never gave such testimony. While there is a marked similarity, there is simply no proof that they are actually the same shotgun.
We agree with the State that Harris's possession of what appears to be a shotgun on a prior occasion could be relevant to identification, access, possession, and intent, in that it has "a tendency in reason to prove" those issues. N.J.R.E. 401. Consequently, we find that the State satisfied the first Cofield prong to that extent.
However, as the motion judge held, there was no evidence, other than Watson's speculation, that the photographs were actually taken in May 2010. They could have been taken earlier in the year or even prior to 2010. While the State is correct that the second Cofield prong concerning closeness in time is sometimes disregarded, State v. Williams, 190 N.J. 114, 131 (2007), we see no reason to disregard it completely in this case because the inferences the State seeks to have drawn from the evidence weakens as the time of the prior possession of a shotgun becomes more remote. Consequently, we conclude that the State's proofs with respect to the second prong are weak.
The third prong requires that proof of the other crime, here possession of the shotgun, be "clear and convincing." As already noted, Watson was the only witness called by the State at the Rule 104 hearing. She could have been, but was not, asked whether the shotgun in the photographs was the same shotgun she saw in Harris's possession on the night of the robbery. Despite the apparent similarity, we hold that the State has not demonstrated by clear and convincing evidence that the shotguns are the same. As a result, the State has not satisfied the third prong with respect to its position that the photographs show Harris holding the same shotgun he allegedly used in the robbery.
Finally, we agree with the motion judge that whatever probative value the photographs may have is significantly outweighed by the prejudice of showing the photographs to the jury. In State v. Hernandez, 334 N.J. Super. 264, 269-70 (App. Div. 2000), aff'd as modified, 170 N.J. 106 (2001), we explained the policy behind the exclusion of other-wrongs evidence as follows:
[N.J.R.E. 404(b)], successor to former Evid.
R. 55, is based on the common-law recognition of both the inordinate prejudice to the defendant inherent in other-crimes evidence and, at the same time, the utility of that evidence to the prosecution when it is fairly probative of defendant's guilt of the crime charged and not merely of his propensity to commit crime. Because of the "widespread agreement that other-crimes evidence has a unique tendency to turn a jury against the defendant . . . ," State v. Stevens, 115 N.J. 289, 302 (1989), the compromise between the antagonistic interests that the Rule seeks to effect can be achieved only by the most delicate balancing. As Stevens, supra, at 303, explains, "[i]t is this inflammatory characteristic of other-crimes evidence that 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."
The record reflects that the State will be able to present the testimony of the victim, who can testify that Harris pointed the shotgun found near the scene at him and demanded money. It can also offer Watson's testimony that she saw Harris point a shotgun at the victim during the robbery. The testimony of both witnesses directly addresses the issues of identification, possession, and intent. Although their testimony does not specifically address access, that issue is significantly less relevant in light of their testimony that they saw Harris possess and use a shotgun during the robbery. Consequently, the relatively weak probative value of the photographs is outweighed by the inherent prejudice of showing the jury photographs of Harris holding a shotgun that was not identified by Watson as the same one used during the robbery, especially when nothing is known about when, by whom, and where the photographs were taken.
Balancing the results of our examination of each of the four Cofield factors, we conclude that Judge Michelle Hollar-Gregory did not abuse her discretion in denying the State's motion and that the State has failed to demonstrate a "'clear error of judgment.'" Goodman, supra, 415 N.J. Super. at 228 (quoting Marrero, supra, 148 N.J. at 483). Our ruling, as was the judge's, is limited to the use of the photographs during the State's case in chief. We express no view as to whether they could be used to rebut evidence offered by Harris, inasmuch as we do not know what, if any evidence, he might offer at trial.
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