July 6, 2012
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
ROBBY R. WILLIS, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 10-08-0841.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 8, 2012
Before Judges Fisher and Nugent.
On leave granted, the State appeals from the trial court's September 15, 2011 order that denied the State's pre-trial motion to admit at defendant Robby Willis's trial evidence of certain prior bad acts committed by his co-defendants, Lenroy Laurence and Marcus White. We remand for further proceedings.
On August 17, 2010, a Burlington County grand jury returned a ten-count indictment against defendant Robby Willis and co-defendants Lenroy Laurence*fn1 and Marcus White, charging them with numerous offenses arising out of the kidnapping, carjacking, and murder of Lyudmila Burshteyn on September 2, 2009.*fn2 The State charged a fourth defendant, K.H.*fn3 , with numerous offenses based upon his participation in the events that culminated in the murder. K.H. entered a guilty plea. Laurence's case was severed, but before his trial commenced the court heard the State's motion to introduce at each trial*fn4 evidence that Laurence and White had hidden two guns near Exit 13 of the New Jersey Turnpike on August 30, 2009, and then unsuccessfully attempted to locate and retrieve them the next day. The court's disposition of the State's motion is the subject of this appeal.
We derive the following facts from the testimony presented by the State at the hearing on its motion, and from the facts the parties accepted as true for purposes of the State's motion.*fn5
The events relevant to the State's motion began on Sunday, August 30, 2009, and ended on Wednesday, September 2, 2009, the latter being the day the victim was murdered. On August 30, 2009, at approximately 7:15 a.m., Laurence and White, accompanied by Baquea Thomas and Shaniqua Williams, were traveling in a car southbound on the New Jersey Turnpike near Exit 13, where they became involved in a motor vehicle accident. Laurence and White each had a handgun. Unable to leave the scene because the car had a flat tire, Laurence and White gave the guns and White's cellular phone to Williams to hide. Williams and Thomas left the car and Williams hid the guns and the phone beneath a guardrail along the Turnpike. The women then went to Newark International Airport where Laurence and White met them. A friend drove the four to Philadelphia.
The next evening, August 31, 2009, Laurence, White, and Williams took a bus from Philadelphia to New York City and then had a friend drive them to Exit 13 of the New Jersey Turnpike, where they unsuccessfully searched for the guns. Following their unsuccessful search, they returned to New York where Laurence and White carjacked a vehicle and drove to Philadelphia, arriving during the early morning of September 1, 2009.
In addition to the foregoing facts, which the parties accepted as true for purposes of the motion, the State presented the testimony of K.H. K.H. was defendant's cousin and they both lived in Philadelphia. Defendant lived on Helen Street. In August 2009, K.H. and defendant attempted to set up a "street corner type" drug operation. Defendant knew Laurence, who said that he would send customers to them. Defendant also knew White, who was staying at the Helen Street house with defendant and several women.
During the time that defendant and K.H. were attempting to set up the distribution operation, defendant borrowed $500 from K.H. When defendant delayed repaying K.H., K.H. stole $500 worth of drugs that he thought belonged to defendant. The drugs actually belonged to Laurence. When Laurence attempted to collect the money, K.H. could pay him only $100. In late August 2009, K.H. still owed $400 to Laurence.
During August 2009, defendant, Laurence, and White would often leave K.H. home "to watch the females" while they would go out and rob drug dealers.*fn6 Near the end of August, K.H. stole two guns, a .38 and a .45, from a drug dealer who had hidden the guns beneath the hood of a car. On Sunday night, August 30, 2009, K.H. showed the guns to defendant. K.H. thought defendant was going to keep the .38, but defendant said he wanted his gun back. According to K.H., defendant's gun was the nine-millimeter that Laurence and White had Williams hide the night of the accident on the New Jersey Turnpike. Later, when Laurence and White appeared at defendant's house, defendant showed them the guns, and Laurence kept the .45 because K.H. still owed him $400.
K.H. believed that on the same night that he gave the two guns to defendant, he heard Laurence and White say that they had been involved in an accident on the Turnpike and had to hide their guns. Although K.H. had seen their guns before he heard the conversation, he never saw them afterward. The guns were a nine-millimeter and a .38.
On Monday, August 31, 2009, K.H. participated in a robbery with the others. The robbery occurred in a park in the Frankford section of Philadelphia. K.H. had a .22 but wanted a larger gun, so somebody handed him a .38, which he used to commit the robbery. According to K.H., the three other men had a .38 and a .45.*fn7
During the night of September 1, 2009, defendant, Laurence, White, and K.H. went out to look for someone to rob and thought about robbing a pizza delivery man. They also wanted to steal a car so they could rob more people and get away easier. K.H. admitted that it was his idea to steal the car. He tried to steal a van, but when he punched out the ignition, lights came on in a nearby house, so he got out of the vehicle and ran. The group proceeded to a playground where they discussed robbing people the next day. That night, they slept at the Helen Street house.
The next morning, Wednesday, September 2, Laurence woke K.H. so that they could go out and rob people. Defendant, Laurence, K.H., and White discussed leaving to commit robberies;
White declined to accompany them. The three left, and thereafter robbed and carjacked the victim.
The State did not elicit from K.H. any testimony about the motivation for carjacking the victim on September 2, 2009. Although the prosecutor was prepared to present additional evidence about the events that occurred in New Jersey and New York on August 30 and 31, he did not do so because the court suggested the parties assume that those events occurred, and the parties accepted the court's suggestion. To provide the procedural context for the court's suggestion and the State's response, we will recount in some detail the colloquy between the court and the attorneys.
At the inception of the hearing, the court framed the issues: "We're here for several 404(b) slash intrinsic evidence arguments made by the State." The court then identified the events that were the subject of the motion: the August 30 and 31 events that occurred on the New Jersey Turnpike; the events that occurred during the evening of September 1, 2009, when Laurence, defendant, and K.H. looked for a pizza delivery man to rob, and K.H. attempted to steal a car; and K.H.'s stealing the .38 and .45. The court decided that because K.H. was in custody and present, and because his testimony would "be necessary with . . . newly obtained information with regard to the latter two issues that I've raised as to 404(b) allegations or intrinsic evidence allegations[,] that we will take his testimony first."
When the prosecutor responded that he intended to establish the events that took place on the Turnpike and in New York through proofs other than the testimony of K.H., and that he did not "want anybody to have a preconceived idea that [K.H.] was going to be the source of that information," the court replied that the State could "use other avenues" to establish those facts, and that K.H. was testifying first "for expediency sake and logistics." The prosecutor's plan to produce other testimony changed after K.H. completed his testimony.
Following K.H.'s testimony, the court stated that it would first address the events that occurred on the New Jersey Turnpike on August 30 and 31, and make a decision about whether they would be admissible at the trials. In response, the prosecutor addressed the "factual portion" of the record, and stated his belief that defendants did not contest the events that took place on the Turnpike. Counsel for defendant disagreed, stating that as far as defendant was concerned, the part about the guns was "simply made up." In light of defendant's position, the prosecutor said that he would adduce testimony from a detective who could establish the Turnpike events through statements made by Baquea Thomas and Shaniqua Williams, the women who took the guns from Laurence and White, then hid them. The prosecutor said, "I don't think we have that information in front of the [c]court as part of this record, even though defense counsel knows it's there." When defense counsel responded that the women saying the August 30 incident occurred did not mean it was true, the court stated, "But that means you have to have a hearing."
In view of the dispute concerning the Turnpike events, the court made a suggestion:
It is possible, I believe[,] to argue the first prong of Cofield*fn8 and for the [c]court to, once having ruled upon that, make a determination about the third prong of Cofield. I mean it is one way to proceed.
So why don't we argue the relevancy. Assuming for the sake of just that argument that the [c]court could find by clear and convincing evidence that all of what is asserted [is] true, is it relevant and why[.] . . . Because that could short circuit it right there if I'm not agreeing that it's relevant as to [defendant] so let me hear that.
The prosecutor responded: "With that understanding, sure[.]" The court heard arguments from counsel and then made its decision.
The court determined that the events of August 30 and August 31 were admissible against Laurence and White, but inadmissible against defendant. The court concluded that as to Laurence and White, those events were "relevant to issues of motive, intent, plan slash scheme and even absence of mistake." However, concerning defendant, the court noted that defendant "wasn't there, [and] didn't . . . go back the next day." The court stated that "in terms of the probative value [being] outweighed by the risk of undue prejudice . . . the probative value would be so small with regard to [defendant] who wasn't even there that clearly it is ultimately outweighed by the prejudice as well."
The court amplified its reasons in a written decision dated September 14, 2011. In that decision, the court stated:
The State sought to introduce this "other crimes" evidence as to [defendant] . . . on the issues of motive and plan. . . . Preliminarily, the [c]court wishes to state that this is a narrow 404(b) holding with regard to prior crime evidence only. The
[c]court understands that the State's argument is that the mere presence of [defendant] with co-defendants Laurence and White on September 2, 2009 provides sufficient nexus that [defendant] adopted their motive and plan associated with the events of August 30 and August 31, 2009, as to the retrieval of the handguns. The [c]court disagrees with this analysis and concludes that simply because [defendant] was present with co-defendants Laurence and White on September 2nd, when these alleged crimes were committed, this does not create an automatic presumption that he adopted their reasons for being there; particularly as [defendant] was not present on either August 30 or August 31, 2009 and there is no credible evidence that either gun "stashed" belonged to him. The [c]court does not find these two matters to be inextricably linked.
The [c]court is not precluding the State from arguing conspiracy theory as to [defendant] as to the events of September 2nd nor is it confining the State in their introduction of any evidence as to what occurred on that date. The [c]court's ruling is as to the introduction of 404(b) evidence from the events of August 30 and August 31, 2009 only.
The court reiterated that it did not "find the evidence of the incidents on August 30 and August 31, 2009 to be relevant as to [defendant's] motive or plan on September 2nd." The court then analyzed the other-acts evidence under the remaining prongs of the Cofield test, and concluded that while the State satisfied prongs two and three, it did not satisfy the fourth prong. As to prong four, the court stated "that there is not sufficient probative value given [defendant's] lack of connection to the alleged evidence to overcome the likely prejudice to [defendant] as a result of its admission."
The State raises the following arguments in this appeal:
[THE COURT] ERRED WHEN [IT] HELD THAT EVIDENCE RELATING TO THE SECRETION AND ATTEMPTED RETRIEVAL OF TWO FIREARMS WAS NOT RELEVANT TO DEFENDANT'S CASE.
Evidence of the August 30 and 31, 2009 Events Are Relevant to Explain Defendant's Motive and Plan in Participating in the Crimes on September 2, 2009.
The Events of August 30, 2009, and August 31, 2009, are Further Relevant to Defendant Because He Owned One of the Guns Secreted on the Turnpike.
EVIDENCE OF THE AUGUST 30 AND AUGUST 31, 2009, INCIDENTS HAD SUFFICIENT PROBATIVE VALUE TO OUTWEIGH ANY POTENTIAL PREJUDICE TO DEFENDANT WILLIS.
We review a trial court's decision to admit or deny other crimes or wrongs evidence under an abuse-of-discretion standard. State v. Gillispie, 208 N.J. 59, 84 (2011). "Only where there is a clear error of judgment should the trial court's conclusion . . . be disturbed." State v. Barden, 195 N.J. 375, 391 (2008) (internal quotation marks and citation omitted). Our review is plenary, however, in instances where the trial court has improperly applied or failed to apply the Cofield analysis. See State v. Rose, 206 N.J. 141, 157-58 (2011).
The admissibility at trial of evidence of other crimes, wrongs, or acts is circumscribed by N.J.R.E. 404(b), which states:
Except as otherwise provided by Rule 608(b), evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.
The rule makes clear that "[e]vidence of a defendant's other crimes, wrongs, or acts may not be admitted into evidence to prove a defendant's criminal disposition as a basis for proving guilt of the crimes charged[,]" State v. Koskovich, 168 N.J. 448, 482 (2001), or "simply to reflect negatively on a defendant before a jury in a criminal case," State v. Nance, 148 N.J. 376, 385 (1997).
The Supreme Court has explained that "because New Jersey adheres to the widespread view that other-crime evidence is highly inflammatory, having the unique tendency to turn a jury against the defendant, trial courts are required to make a careful and pragmatic evaluation of the evidence based on the specific context in which it is offered." State v. Hernandez, 170 N.J. 106, 119 (2001) (internal quotation marks and citations omitted). For the court to make such an evaluation, "the connection between the evidence and the permissible purpose should be clear[.]" 1 McCormick on Evidence §190, at 766 (Broun ed., 6th ed. 1987). "[M]ore is required to sustain a ruling admitting such evidence than incantation of the illustrative exceptions contained in the Rule." State v. Stevens, 115 N.J. 289, 305 (1989).
The Supreme Court has developed a rule of general application in order to avoid the over-use of extrinsic evidence of other crimes or wrongs:
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. [Cofield, supra, 127 N.J. at 338 (citation omitted).]
We first must determine whether the trial court properly applied N.J.R.E. 404(b). N.J.R.E. 404(b) "applies only to other acts of the defendant; thus, evidence that includes references to bad conduct by the defendant's accomplices does not implicate this rule." Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment 7 on N.J.R.E. 404 (2012) (citing State v. Figueroa, 358 N.J. Super. 317, 326 (App. Div. 2003)).
If the nine-millimeter handgun belonged to defendant, as K.H. testified, then the Turnpike events would have implicated defendant's prior bad acts. K.H.'s testimony suggested that defendant unlawfully possessed the nine-millimeter prior to August 30, 2009, and gave it to either Laurence or White sometime before they became involved in the accident on the Turnpike. But the court did not find that the nine-millimeter belonged to, or had been possessed by, defendant. The court stated:
Am I really going to believe what [K.H.] is saying about this nine-millimeter gun which, you know, I have some issues with it, and I'll get into that eventually when I have to address, you know, the other issues that are coming up down the pike here with regard to [K.H.] and on credibility. But I have to --I'm not comfortable enough to hang my hat on that, that testimony. And it doesn't make a whole lot of sense in addition, you know, as to why that would be the case either. And as I said, I'll get to even more specific credibility findings at the appropriate time with regard to that and [K.H.'s] testimony here today.
In its supplemental written decision, the court explicitly rejected K.H.'s testimony that the gun belonged to defendant.
The State contends that the trial court improperly rejected K.H.'s testimony that defendant owned the nine-millimeter gun, because K.H.'s testimony was unequivocal and unrefuted. The State also points out that the court did not find K.H.'s testimony incredible in its entirety.
The State cites no authority for the proposition that a factfinder must believe all or none of a witness's testimony. Contrary to the State's assertion, a factfinder may believe all, part, or none of the testimony of any witness. More significantly, we will uphold a trial court's factual findings and credibility determinations if they are "supported by sufficient credible evidence in the record." State v. Handy, 206 N.J. 39, 44 (2011) (quoting State v. Elders, 192 N.J. 224, 243 (2007)). Here, the court's factual determinations were supported by sufficient credible evidence.
The court's decision was, in part, based on the premise that defendant did not own the nine-millimeter. Because the possession of guns by Laurence and White on the Turnpike was not a prior act of defendant, N.J.R.E. 404(b) did not apply. See Figueroa, supra, 358 N.J. Super. at 326. Consequently, the proposed evidence should have been analyzed under N.J.R.E. 401 to determine relevancy and N.J.R.E. 403, which permits a trial court to exclude relevant evidence if its probative value is substantially outweighed by, among other factors, undue prejudice.
There is a distinction between the analysis required under the fourth Cofield prong and that required under N.J.R.E. 403.
Under the latter rule, relevant evidence will be precluded only if the risk of undue prejudice substantially outweighs its probative value. N.J.R.E. 403(a). With respect to other-crimes evidence however the potential for undue prejudice need only outweigh probative value to warrant exclusion. Cofield, supra, 127 N.J. at 338;
Stevens, supra, 115 N.J. at 302. Furthermore, under N.J.R.E. 404(b) the party seeking to admit other-crimes evidence bears the burden of establishing that the probative value of the evidence is not outweighed by its apparent prejudice. See State v. Long, 173 N.J. 138, 162 (2002).
Thus, "the primary focus of [N.J.R.E. 404(b)], when examined in conjunction with [N.J.R.E. 403], is to view it as a rule of exclusion rather than a rule of inclusion."
State v. Darby, 174 N.J. 509 (2002) . . . . [State v. Reddish, 181 N.J. 553, 608-09 (2004).]
Although the trial court incorrectly analyzed the issue under N.J.R.E. 404(b), the court concluded under the first Cofield prong that the evidence was not relevant; that is, the actions of Laurence and White in hiding the guns along the Turnpike, then unsuccessfully attempting to retrieve them, were not relevant to defendant's conduct. The analysis under the first Cofield prong -- that the proposed evidence be "relevant to a material issue" -- is the same analysis required by N.J.R.E. 401, which defines relevant evidence as "evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action." That is, "[c]courts consider evidence to be probative when it has a tendency to establish the proposition that it is offered to prove." State v. Burr, 195 N.J. 119, 127 (2008) (internal quotation marks and citations omitted). The phrase "fact of consequence" in N.J.R.E. 401 refers to "what the former rule referred to as materiality, which might now be referred to as consequentiality." Current N.J. Rules of Evidence, supra, comment 2 on N.J.R.E. 401.
"The trial court is granted broad discretion in determining the relevance of evidence." Verdicchio v. Ricca, 179 N.J. 1, 34 (2004). In the context of the State's proofs and proffers, the trial court did not misapply its discretion in determining that the acts of Laurence and White on the Turnpike were not relevant to two issues involving defendant: his motive for initially carjacking the victim's car, and his motive for participating in the victim's murder.
The State's proofs, developed through the testimony of K.H., established that when Laurence, defendant, and K.H. left the Helen Street residence on the morning of the murder, they intended to commit robberies. The previous night, K.H. conceived the idea to steal a car to facilitate their escape from the Philadelphia robberies they intended to commit. Unlike Laurence and White, defendant had not previously attempted to recover the guns that had been hidden along the Turnpike. Given those circumstances, the court did not misapply its discretion when it determined that the conduct of Laurence and White on the New Jersey Turnpike was not relevant to defendant's motivation for participating in the carjacking.
Nor did the trial court abuse its discretion when it determined that the conduct of Laurence and White on August 30 and 31 did not provide a motive for defendant to participate in the victim's murder.
The State offered evidence of the events on the Turnpike for a third reason that the trial court did not address: to demonstrate that after carjacking the victim, Laurence, defendant, and K.H. returned to the Helen Street residence and picked up White, intending to drive to Exit 13 on the Turnpike to find the guns. In carrying out that plan, and in its aftermath, the perpetrators executed the victim. The State argued that the evidence of the Turnpike events was relevant to demonstrate that defendant engaged in a conspiracy and plan to use the victim's vehicle to retrieve the guns. While making that argument, the prosecutor inquired of the court:
But factually, . . . do we have a record where the [c]court is accepting factually in its ruling that [defendant] was aware when they went back to get . . . White that their purpose then became to go to New Jersey to collect -- to retrieve the guns? [THE COURT]: I'm not accepting -- I'm not making a ruling on that one way or the other. [PROSECUTOR]: Because I think that's an important fact, if need be we'll introduce testimony to that because if that would sway the court's feeling because -- [THE COURT]: You can argue for a reconsideration on that basis because I am not ruling on that. I really don't have anything before me to make a decision about that one way or the other.
The prosecutor also argued that when defendant returned to Helen Street with Laurence and K.H. to pick up White, defendant could have said "I don't want to join in on this mission." Instead, he "join[ed] the conspiracy." Additionally, the prosecutor contended that under the indictment, [t]hey are committing an additional crime in the State of New Jersey which is charged which is the need to acquire a gun unlawfully in the State of New Jersey. And that is part of the indictment. The kidnapper for the purpose of criminal enterprise which is to come into this [S]tate and acquire a gun unlawfully and that is a crime and they are committing that crime.
The court expressly declined to address whether defendant joined in a conspiracy to unlawfully obtain the guns hidden near the New Jersey Turnpike. Yet, the court entered what appears to be a blanket order prohibiting the use of that evidence. In view of that apparent ambiguity, we remand for the court to clarify its order or, alternatively, address the threshold issue of whether evidence of the conduct of Laurence and White in hiding guns near the Turnpike is admissible either under what the court characterized as the State's "conspiracy theory," or with respect to the count of the indictment the prosecutor referred to in his argument. By remanding for a clarification, we are not precluding the court from conducting an additional hearing pursuant to N.J.R.E. 104 if necessary to make the threshold determination as to the admissibility of the evidence.
Remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.