July 10, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
NATASHA WHITE, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-10-3478.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 31, 2012 -
Before Judges Carchman, Fisher and Baxter.
Following a fifteen-day jury trial, defendant Natasha White*fn1 was convicted of the disorderly persons offense of criminal mischief, N.J.S.A. 2C:17-3a, amended down from the third degree; two counts of third-degree possession of a weapon to use unlawfully against a person or property, N.J.S.A. 2C:39-4d; first-degree murder, N.J.S.A. 2C:11-3a(1), (2); first-degree vehicular homicide by recklessly operating a motor vehicle in violation of N.J.S.A. 39:4-50 within 1,000 feet of a school, N.J.S.A. 2C:11-5a, b(3)(a); second-degree vehicular homicide by driving recklessly, N.J.S.A. 2C:11-5a; and third-degree vehicular homicide while operating a vehicle in violation of N.J.S.A. 39:3-40, N.J.S.A. 2C:40-22a; as well as simple assault, N.J.S.A. 2C:12-1a, as a lesser-included offense of second-degree aggravated assault, N.J.S.A. 2C:12-1b(1). The trial judge sentenced defendant to an aggregate sentence of forty-four-andone-half years in prison with a period of parole eligibility of thirty-four years.*fn2 We affirm the judgment of conviction.*fn3
These convictions arose out of two related incidents, and ultimately, the motor vehicle death of Zachary Sanders caused by defendant's intentional conduct. In the first incident, defendant purposefully rammed her vehicle into Sanders' vehicle and attempted to hit him with her vehicle before driving off. In the second incident, nine days later and at the same location, an intoxicated defendant again purposefully rammed her vehicle into Sanders, hitting him and another individual with her vehicle. Sanders was run over and dragged under the vehicle. He died as a result of his injuries.
We now provide a more expansive discussion of the background of these incidents, which facts were adduced at trial. Sanders lived in West Orange with his fiancee Latoisha Richardson and their two children. For approximately two years prior to his death, Sanders carried on an affair with defendant.
On March 31, 2007, Sanders was at the Rubicon Bar with a childhood friend, Desmond Jones, and defendant. While there, Sanders and defendant began to argue; the argument escalated into a shouting match, although Jones claimed that Sanders seemed nonchalant about the argument. According to Jones, at this point Richardson arrived, said hello to several people and went outside with Sanders. Defendant followed the couple outside, and Jones soon followed as well.
The bar owner, Willie Johnson, stated that Jones, Sanders and defendant were at the bar, and that Richardson was not present. Sanders and defendant were arguing, and Johnson told the two to stop arguing. Instead, the two went outside, and approximately ten minutes later, Johnson heard vehicles crashing together.
According to Richardson, when she arrived at the bar at approximately 2:00 a.m., she drove by and noticed Sanders arguing with a woman, whom she later recognized as defendant. Although Richardson was aware of Sanders' and defendant's affair, she was unaware that it was still going on. While Richardson and Sanders spoke in the parking lot, defendant got into her vehicle and used it to ram Sanders' vehicle "a good four times." Sanders was pushed into a pole in front of the vehicle. Next, defendant left the parking lot, but quickly returned and attempted to hit Sanders with her vehicle. The police were called, and defendant drove off.
Two officers from the Orange Police Department responded to the bar and interviewed Sanders, as well as other witnesses. Both officers noticed that Sanders' face was scratched as a result of his fight with defendant, but he refused medical attention. Approximately fifteen minutes after the police arrived, defendant returned to the bar. She had been on the phone with police headquarters and was persuaded to return to the scene. She revved her engine as she approached the bar, and stopped quickly enough for her vehicle to fishtail on the road. She exited the vehicle, leaving it in the middle of the road, and yelled while approaching the officers. She claimed that Sanders had hit her, although the officers did not see any marks on her. She was arrested for simple assault, criminal mischief, and possession of a weapon (her automobile) for an unlawful purpose.
On April 9, 2007, Sanders and Jones were again at the Rubicon Bar. Despite the March 31 incident, defendant was there as well, working as a bartender. Jones overheard defendant tell Sanders that she felt good about having tried to hit him with her vehicle. Jones then left the bar to get something to eat. He returned after Sanders was killed.
When Johnson, the owner, arrived at the bar earlier that evening, he noticed that defendant and Sanders were arguing again. He fired defendant and told her to leave the bar. He also suggested that Sanders stay in the bar and not follow defendant. Johnson was later told by Bernard Kelly, one of Sanders' friends, that defendant had run Sanders over with her vehicle.
Kelly was also at the Rubicon Bar on April 9, 2007. He came to the bar at Sanders' invitation, left for a short period of time, and then returned. He noticed that defendant and Sanders were arguing and surmised from what they were saying that Sanders was ending their affair. Kelly overheard defendant threaten Sanders by stating that she had people looking for him. Kelly interjected at this point and told defendant that such a statement was not necessary. In response, defendant told Kelly to mind his business or he would "get some, too." He claims that defendant then went to the kitchen, and at that point he told Sanders that it was time to leave. Kelly and Sanders left through the front door, and defendant left through a side door into the parking lot.
Kelly then went to his vehicle, which was parked next to defendant's vehicle, and spoke with her, telling her to calm down before driving anywhere. He noticed that defendant seemed calm. Sanders then walked towards the pair and shouted an obscenity towards her, at which point Kelly stated "all hell broke loose." Defendant got in her vehicle and backed out of the bar's parking lot. Sanders and Kelly were standing on the sidewalk next to Lincoln Avenue when defendant used her vehicle to ram Sanders' vehicle. Defendant's vehicle became stuck on the curb, and she spun her tires in the course of freeing it. Kelly told Sanders that they should go back inside the bar. Sanders was intoxicated.
Next, defendant drove to the back of the parking lot again and sat, revving her engine. At this point Sanders and Kelly started to head back towards the bar, and defendant drove towards them. She steered towards Sanders, and Kelly ran, jumped in the air, and heard a loud noise as defendant hit both Sanders and Kelly. Kelly was hit on the leg and flung into the air; he landed on the ground near the passenger side of defendant's vehicle. Sanders was struck and landed on the middle of the hood. He proceeded to bang on the windshield and yell for defendant to stop the vehicle.
With both hands on the steering wheel, defendant looked at Sanders, "stomped" on the gas, and drove over the sidewalk onto Lincoln Avenue. Sanders continued to yell for her to stop. His hands then flew off the vehicle and up in the air, and he fell under the vehicle while defendant continued driving to the next intersection. The vehicle was traveling too fast for Kelly to catch up to it. Kelly ran behind the vehicle, yelling for defendant to stop; when he reached the vehicle he turned it off and pulled defendant from the vehicle. They struggled, and Kelly hit defendant twice before he was stopped by the police. The responding officers on April 9, were the same as those responding on March 31.
Defendant was cited for driving on a suspended license and for driving while intoxicated. The officer placed defendant, whom he recognized from the March 31 incident, in the patrol vehicle. Under defendant's vehicle, Sanders was twitching and severely injured. The police were unable to lift the vehicle off Sanders until the fire department arrived. After the vehicle was lifted off of Sanders, he was declared dead by emergency medical services.
At trial, various experts opined as to the operability of defendant's vehicle, finding that defendant's vehicle, a Lexus, had front-end collision damage, while Sanders' vehicle, a blue Dodge Durango, had collision damage on the rear end passenger side. The Lexus was generally well-maintained and had properly functioning brakes.
Robert Havier, of the New Jersey State Toxicology Laboratory, was qualified as an expert in toxicology and concluded that Sanders had a blood-alcohol content of 0.271% while defendant's blood-alcohol content as 0.123%, which was over the statutory limit of 0.08%.*fn4
The Assistant Medical Examiner in Essex County at the time of the incident, Dr. Alex Zhang, performed an autopsy on Sanders' body and concluded that the physical evidence was consistent with Sanders being dragged on his back by a vehicle. Among other things, there were tire marks on Sanders' upper left arm and several broken ribs. The medical examiner concluded that Sanders had been run over and that the heavy weight of the vehicle compressed his chest. The cause of death therefore was mechanical asphyxia, and the manner of death was a "homicide." The court cautioned the jury to keep in mind that it was the final arbiter of guilt or innocence.
An Essex County Prosecutor's Office detective, Arnold Anderson, who specializes in investigating serious automobile accidents, responded to the scene. When he arrived, he observed the Lexus, which was approximately 140 feet from the Durango. Sanders' body was lying in the street, and his work-identification badge was found approximately forty-five feet away. The detective did not notice any skid marks, or other evidence of heavy braking that would indicate, if present, that defendant had tried to avoid hitting something. However, he noted that at a low rate of speed, there may not have been skid marks because of the vehicle's anti-lock brakes. Because of the odd position of Sanders' body, it appeared that Sanders had been run over while on the ground and then dragged under the vehicle.
On cross-examination, Anderson responded to counsel's inquiries and concluded that this incident was a homicide based upon the prior domestic violence incident between defendant and Sanders, which involved defendant attempting to run Sanders over in her vehicle; the fact that this was not a random act, but was targeted at Sanders; and the lack of attempts to avoid Sanders, despite the lack of traffic in the road, and the ability to do so. Had Sanders been holding on to the hood of defendant's Lexus and the brakes been applied, Sanders would have been propelled off the hood and onto the street in front of the vehicle. For Sanders to end up under the vehicle, defendant would have had to accelerate and drive over Sanders' body after it fell to the street.
Defendant claimed that she was negligent, wherein Sanders was intoxicated, jumped onto defendant's hood, and eventually fell off, causing him to be run over. The defense countered the State's case with Salvatore Fariello, an expert in pedestrian accident reconstruction, as its sole witness.
Fariello agreed with the number, type and general cause of Sanders' injuries and opined that Sanders was crushed when defendant applied the brakes in her vehicle which caused "front end dive." The body was then dragged only a short distance while the vehicle came to a stop. He pointed out that the anti-lock braking system on defendant's Lexus prevented it from leaving skid marks. Fariello suggested that Sanders rode on the hood for approximately one hundred feet while traveling less than twenty miles per hour. After he fell off the front of the vehicle, defendant was unable to avoid him, and that the death was the result of an unavoidable accident.
The jury convicted defendant, and this appeal followed. On appeal, defendant raises the following arguments:
THE DEFENDANT WAS DENIED A FAIR TRIAL WHEN TWO STATE WITNESSES PROFFERED AN OPINION THAT ASSUMED THE ULTIMATE FACT THAT THE DEFENDANT WAS GUILTY OF HOMICIDE. (PARTIALLY RAISED BELOW).
A. DR. ALEX ZHANG'S TESTIMONY.
B. DETECTIVE ARNOLD ANDERSON'S TESTIMONY.
THE COUNTS OF THE INDICTMENT INVOLVING A PRIOR INCIDENT OF DOMESTIC VIOLENCE SHOULD HAVE BEEN SEVERED FROM TRIAL TO AVOID PREJUDICING THE JURY'S DELIBERATION ON THE DEFENSE THEORY OF ACCIDENTAL DEATH.
THE COURT ERRED IN NOT CHARGING CAUSATION BECAUSE THE THEORY OF [THE] DEFENSE WAS THAT THE DEATH OF SANDERS WAS AN UNAVOIDABLE ACCIDENT. (NOT RAISED BELOW).
THE AGGREGATE SENTENCE OF 44[-]1/2 YEARS WAS MANIFESTLY EXCESSIVE AND THE RESULT OF AN IMPROPER WEIGHING OF AGGRAVATING AND MITIGATING FACTORS.
A. THE QUANTUM OF SENTENCE IS EXCESSIVE.
B. THE DEATH BY AUTO CONVICTIONS SHOULD HAVE BEEN MERGED WITH THE MURDER CONVICTION.
In her supplemental pro se brief, defendant asserted that the her federal and state constitutional rights were violated by the State's failure to preserve the "so-called" murder weapon for examination by the defense. She also claims that the judge erred by withholding this failure from the jury.
We now address defendant's arguments. Defendant first claims that Dr. Zhang's opinion that Sanders died as a result of a homicide was inadmissible as an opinion expressing the ultimate issue in the case. Defendant also argues here that instead of a curative instruction, the only proper remedy was to "strike Zhang's opinion entirely and to tell the jury to disregard his opinion in deciding the case." We reject defendant's argument.
In the course of his testimony, Dr. Zhang was asked about his findings related to the manner of death in this case:
[Prosecutor] What is the meaning of the manner of death?
[Dr. Zhang] In this case --
[Prosecutor] What does it mean, manner of death?
[Dr. Zhang] Manner of death is the [way] that -- it's natural events, or -- not natural events. In this case, I consider it's homicide, means, somebody kill another. [O]ne person kill another person.
[Prosecutor] Why did you come to that conclusion?
[Dr. Zhang] It's based on the investigation history. Autopsy findings. I consider is not accidentally like the car crash on somebody else. Somebody deliberately use the vehicle as a weapon to kill another human being.
[Prosecutor] One more time.
Do you have an opinion based upon reasonable degree of medical certainty as to cause and manner of death in this case?
[Dr. Zhang] Yes.
[Prosecutor] What would that be, the cause and manner of death?
[Dr. Zhang] It's like 99.9 percentage if you use percentage-wise over the certainty.
[Prosecutor] That it was a homicide?
[Dr. Zhang] Exactly.
Critically important, defendant's attorney did not object to this testimony. At the conclusion of Dr. Zhang's testimony, the court, sua sponte, brought to the attorneys' attention its concern that Dr. Zhang had testified to the ultimate issue in the case, i.e., whether Sanders' death was an accident or a homicide. Defendant requested a curative charge. The court granted defendant's request and instructed the jury:
Ladies and gentlemen, I had previously given you the charge on an expert's testimony, and I told you how it is that you may use expert testimony, and I will, again, be giving you that on occasion.
At the end of the case I will further give you a charge that, again, discusses the weight to be accorded and assessment of expert opinion testimony. You may have recalled that a witness testified in this case, and said something that might be inferred by you as to an expression of a witness['] opinion as to the ultimate guilt or innocence of the defendant. I believe there was a quote that said that the expert felt that it was and 99.9 percent sure that it was a homicide [sic]. You are reminded, and I want to emphasize to you that the ultimate guilt or innocence is to be made only by you as a jury in this case. The ultimate determination of whether or not the State has proven the defendant's guilt beyond a reasonable doubt is to be made only by you the jury in considering all of the evidence in the case.
Defendant relies on State v. Denmon, 347 N.J. Super. 457 (App. Div.), certif. denied, 174 N.J. 41 (2002), and State v. Jamerson, 153 N.J. 318 (1998), to support his argument that the curative instruction was insufficient.
Denmon, supra, involved an appeal from the defendant's conviction for multiple counts arising from the kidnapping and robbery of an elderly couple. 347 N.J. Super. at 460--62. At trial, the defendant's accomplice, whom the defendant met while in prison, testified that the two met while they were "locked in the same barracks." Id. at 464. The defense objected and requested a mistrial. Ibid. The court denied the mistrial and issued a curative instruction, telling the jury to disregard the accomplice's statement. Ibid. We found no error with the instruction given, or with the trial court's denial of the defendant's mistrial request. Ibid.
Denmon is distinguishable from this case in multiple respects. Denmon did not involve expert testimony but lay testimony. In Denmon, defendant objected to the inadmissible testimony and requested a mistrial; here, defendant made no such objection. Finally, here, defendant specifically requested a curative instruction and approved the instruction that was given.
Jamerson, supra, involved a defendant's conviction for reckless manslaughter where the medical examiner was qualified as an expert in forensic pathology, but testified that the accident causing the victim's death was the result of the defendant's recklessness. 153 N.J. at 330--33. That conclusion was based, in part, on his own determination that the victim had not run a stop sign at the site of the accident. Ibid. The Supreme Court reversed, finding that the medical examiner testified beyond the expertise of a forensic pathologist, which it termed as "restricted to describing the mechanics of death." Id. at 338. Rather than offering the expansive testimony, the expert should have been "limited to describing the physical properties of the implement that caused the [victims'] deaths, narrating the physiological status of the bodies at the time of death, and ruling out the possibility that the injuries were self-inflicted or sustained as a result of mere inadvertence." Id. at 337.
Even if we agree with defendant, that Dr. Zhang's testimony was not functionally different from the testimony proscribed by the Court in Jamerson, we find no basis for a reversal. Defendant did not object to the testimony, and when the court raised the potential problem, rather than asking for Dr. Zhang's testimony to be disregarded as defense counsel does here, defendant's trial counsel requested a curative instruction, and approved of the court's proposed curative instruction. We conclude that absent the objection and in light of trial counsel's concurrence in the proffering of the curative instruction, "in the context of the trial the error was actually of no moment." State v. Macon, 57 N.J. 325, 333 (1971). We find no error here.
We reach the same result regarding Detective Anderson's testimony. Prior to the jury hearing Anderson's testimony, defendant sought to exclude him because the State failed to identify him as an expert, defendant did not have a report from Anderson regarding accident reconstruction, and the attempt to introduce him as an expert was a surprise. The court conducted a Rule 104 hearing to ascertain whether Anderson was going to testify to information beyond the four corners of his report. At the hearing, Anderson testified that Sanders' death was a homicide because it was not in the typical pattern of a pedestrian accident. There were no avoidance maneuvers, evidence of heavy braking, nothing blocking the driver's vision, and Sanders was under the vehicle in such a manner that it was apparent that he was on the ground when struck. Ultimately, defendant withdrew her motion to exclude Anderson's testimony.
On cross-examination, defendant's counsel asked Anderson for his opinion regarding how Sanders ended up on the hood of defendant's vehicle:
[Defense Counsel] . . . But do you believe based upon your investigation that he was on the hood for some period of time?
[Anderson] He may have been. [Defense Counsel] May have been.
And you told us that there was nothing to indicate that he got --that he was struck by the vehicle, and then I asked you, well, what would cause him to get on the hood? And you said something about that when someone is lying on the ground somehow they could get on to the hood. I didn't understand that? [Anderson] I could offer an opinion. [Defense Counsel] I'll accept your opinion even though it's not in your report. I will open it for you.
Don't speculate. I mean, if you have training, or experience, or signs that tell us how he got on the hood, that's what you can testify to. I don't want you guessing or speculat[ing].
Later in cross examination, the defense counsel asked Anderson to set forth the reasons why he felt that the April 9 incident was a homicide:
[Defense Counsel] You had testified yesterday on direct examination as to the reasons that you believe that this was a homicide as opposed to an accident. Do you recall that?
[Defense Counsel] I would like for you to make a list of what the things you relied upon to determine that this was not an accident, and this was a purposeful attempt by the defendant to run over people or to kill somebody?
Anderson complied with defendant's request and discussed the March 31 incident, the relationship between Sanders and defendant, and the fact that Sanders was prone when hit with the vehicle. These were not part of Anderson's report.
Further, upon being asked by the defense whether Anderson believed the defense's theory of the case, Anderson replied that he did not. Finally, counsel then posited a hypothetical designed to support the defense theory, and Anderson did not agree with the defense attorney's conclusion in the hypothetical.
At the charge conference, the State moved, without objection, to have Anderson qualified as an expert. Subsequently, the jury received the appropriate jury charge for expert witnesses. Defendant has not argued that Anderson was not qualified to testify as an expert, only that it was improper for Anderson to offer opinions. The State argues that the doctrine of invited error should bar any reversal of defendant's convictions because the testimony about which defendant complains was elicited by defendant's own trial attorney.
The doctrine of invited error applies to defendant's trial counsel's questioning of Anderson. See State v. Jenkins, 178 N.J. 347, 358 (2004) (defining the doctrine of invited error). Defense counsel made a strategic decision to attempt to undermine the State's case by attacking the basis for Anderson's conclusions. This strategy did not work, and any error that it produced in Anderson's testimony must be considered invited error. Defense counsel withdrew his objection to Anderson's testimony, and then proceeded to seek from Anderson the very testimony from which he now seeks relief.
Defendant relies on State v. Landeros, 20 N.J. 69 (1955), for support of his argument that despite the complained-of testimony being solicited by defense counsel, it still requires a reversal of her conviction. Landeros involved a reversal of an assault conviction, where the defense counsel asked the police captain whether defendant was innocent or guilty and the captain replied that the defendant was "as guilty as Mrs. Murphy's pet pig." Id. at 74. Unlike Landeros, Anderson did not testify as to defendant's guilt or innocence, only that the death was a homicide, as opposed to being self-inflicted or the product of mere inadvertence.
Here, Anderson was qualified and treated as an expert, which defendant does not dispute. The jury received an instruction related to expert witnesses, including Anderson, and was told that it alone was responsible for determining defendant's guilt or innocence. If there was any error in Anderson's testimony, it was brought about through defense counsel's strategic questioning, and was therefore invited. We reject defendant's argument as to Anderson's testimony.
We also find no merit in defendant's claim regarding severance. Defendant argues that the judge erred by denying defendant's motion to sever the March 31 and April 9 incidents, and bifurcate them. Further, she argues that the judge failed to address the "high probability of prejudice from such joinder under the unique facts of this case."
Defendant moved to sever the March 31 incident from the April 9 incident on the ground that they were dissimilar because the first involved only property damage, while the second involved injuries to a person. The court held a Rule 104 hearing and heard testimony of Richardson, Jones, and Officer Taylor regarding the March 31 incident. Afterwards, the court held that the incidents were properly joined, and that the March 31 incident would be properly admissible as other-crimes evidence in a trial for the April 9 incident.
Whether a severance should be granted is within the trial judge's discretion, and we will defer to that decision, absent an abuse of discretion. State v. Chenique-Puey, 145 N.J. 334, 341 (1996). Generally, two offenses "of the same or similar character" or "based on the same act or transaction or on 2 or more acts or transactions connected together or constituting parts of a common scheme or plan" may be joined together in the same indictment. R. 3:7-6. However, if it "appears that a defendant . . . is prejudiced by a permissible or mandatory joinder of offenses . . . in an indictment or accusation the court may order an election or separate trials of counts . . . or direct other appropriate relief." R. 3:15-2(b).
"Central to deciding whether joinder is prejudicial is 'whether, assuming the charges were tried separately, evidence of the offenses sought to be severed would be admissible under [N.J.R.E. 404(b)] in the trial of the remaining charges.'" State v. Oliver, 133 N.J. 141, 150--51 (1993) (quoting State v. Pitts, 116 N.J. 580, 601--02 (1989)). See also Pressler & Verniero, Current N.J. Court Rules, comment 2.3.1 on R. 3:15-2 (2011) ("[S]eparate crimes have a sufficient nexus to each other to justify joinder if proof of one crime would be admissible as proof of the other pursuant to N.J.R.E. 404(b)"). If the evidence would be admissible at both trials, then the trial court may try the counts together because the defendant "will not suffer any more prejudice in a joint trial than he [or she] would in separate trials." State v. Coruzzi, 189 N.J. Super. 273, 299 (App. Div.), certif. denied, 94 N.J. 531 (1983).
Generally, to be admissible, evidence must be relevant, that is, it must have "a tendency in reason to prove or disprove any fact of consequence to the determination of the action."
N.J.R.E. 401. Relevant evidence may be excluded if its probative value is "substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence." N.J.R.E. 403.
Under N.J.R.E. 404(b), evidence of other crimes, wrongs or acts is inadmissible to prove a "defendant's criminal disposition as a basis for establishing guilt of the crime charged." State v. Covell, 157 N.J. 554, 563 (1999) (citing State v. Stevens, 115 N.J. 289, 293 (1989)). However, evidence generally inadmissible under N.J.R.E. 404(b) is expressly admissible to prove other facts in issue, such as "'motive, intent, plan, knowledge, identity, or absence of mistake or accident.'" Covell, supra, 157 N.J. at 570 (quoting Stevens, supra, 115 N.J. at 293). This list, however, is not exhaustive; other-crimes evidence "may be admitted when relevant to some fact in issue not specifically referred to in N.J.R.E. 404(b)." Biunno, Weissbard, & Zegas, Current N.J. Rules of Evidence, comment 15 on N.J.R.E. 404 (2011).
To be admissible, evidence otherwise excluded by N.J.R.E. 404(b) must satisfy the four-part test set forth in State v. Cofield, 127 N.J. 328, 338 (1992). Covell, supra, 157 N.J. at 564. Accordingly, to be admissible, evidence of other crimes or acts (1) must be relevant to a material issue; (2) must be similar in kind and reasonably close in time to the offense charged; (3) must be clear and convincing; and (4) must have probative value that is outweighed by its apparent prejudice. Cofield, supra, 127 N.J. at 338. The fourth prong of this test incorporates the traditional probative value-prejudicial impact analysis required by N.J.R.E. 403. State v. Long, 173 N.J. 138, 162 (2002). It is important to note, however, that this prong is "more exacting than [N.J.R.E.] 403, which provides that relevant evidence is admissible unless its probative value is substantially outweighed by the risk of undue prejudice." State v. Rose, 206 N.J. 141, 161 (2011). Also, "the four Cofield prongs are not equally applied in all cases, and the courts require varying degrees of compliance with each prong depending on the facts of the case as well as the nature of the other conduct evidence and its relationship to the current case." Biunno, Weissbard, & Zegas, supra, comment 8 on N.J.R.E. 404.
The admissibility of other-crimes evidence is within the discretion of the trial court. Covell, supra, 157 N.J. at 564. The Supreme Court has held that "'[t]he trial court, because of its intimate knowledge of the case, is in the best position to engage in this balancing process. Its decisions are entitled to deference and are to be reviewed under an abuse of discretion standard.'" Ibid. (quoting State v. Ramseur, 106 N.J. 123, 266 (1987)).
Regarding the issue of whether the two incidents were properly joined, the judge found that factually, they were nearly identical, and therefore, of the same or similar character and were properly joined. There was no abuse of discretion here. As the judge noted, both cases involved disputes between Sanders and defendant, both occurred in the same location, and in both, an angry defendant got in her vehicle and rammed into Sanders' vehicle. The only difference is that in the April 9 incident defendant was successful in her attempt to strike Sanders with her vehicle, whereas on March 31 she missed.
As to whether evidence of the March 31 incident would unduly prejudice defendant in her trial for the April 9 incident, the judge found that it would not. He set forth the Cofield factors and applied the facts in this case to those factors. Under the first factor, relevance, the judge found that the March 31 incident was relevant because defendant's theory was premised on Sanders' death being unintentional and the result of an accident. The fact that defendant tried to hit Sanders with her vehicle a mere nine days earlier under similar circumstances tends to prove her intent to strike him with her vehicle and is, therefore, relevant.
Under the second factor, similarity in kind and timeframe, the court found that the two incidents were practically identical in nature, and that they occurred only nine days apart. Under the third factor, reliability, the facts of the March 31 incident were testified to by multiple witnesses in the Rule 104 hearing. The court found that Jones and Richardson clearly and convincingly established their presence at the incident and that they would testify at trial consistently with their hearing testimony.
Finally, under the fourth factor, undue prejudice, the court found that defendant would suffer no prejudice if these incidents were joined, because, if they were tried separately, the March 31 incident would be admissible under N.J.R.E. 404(b). While this evidence is certainly prejudicial to defendant's case, so is all evidence tending to prove that defendant is guilty. Here, it does not outweigh the probative value of the March 31 incident, which the State aptly describes as "the most direct rebuttal to defendant's theory that the incident was an unavoidable accident." There was neither an abuse of discretion nor error here.
Finally, we reject without any further comment the suggestion that the March 31 evidence should have been sanitized or that the curative instruction was not given in a timely manner. As to the March 31 evidence, it was directly related to what transpired on April 9; moreover, the instruction was delayed at the request of defendant and cannot now be advanced as a claim of error.
We likewise reject defendant's claim that the judge erred by failing to charge the element of causation.
At trial, both parties not only agreed that causation was not an issue, but also, during a conference with the judge, agreed that a causation charge was not necessary.
Defendant now argues that the court committed plain error by failing to give the jury the additional causation charge that her trial counsel expressly agreed should not be given. She relies upon two cases, State v. Martin, 119 N.J. 2 (1990), and State v. Eldridge, 388 N.J. Super. 485 (App. Div. 2006), certif. denied, 189 N.J. 650 (2007), to support her contention that the causation charge was necessary, and that the failure to do so was plain error.
We find no error here, especially given the nature of the proofs and testimony of the eyewitnesses. Eyewitness testimony from both incidents demonstrated that defendant aimed her vehicle at Sanders and attempted to hit him, and that, on April 9, after she had hit him, she continued to drive while he clung to the hood of the vehicle yelling for her to stop, and that once he was under the vehicle, she continued to drive, dragging him for some distance. Further, testimony presented at trial indicated that defendant told Sanders on April 9 that she had no remorse about trying to hit him with her vehicle on March 31, which tended to negate her attorney's "unavoidable accident" theory of the case.
Defendant's trial counsel made a strategic decision to reject the causation charge because including it would bring more focus on the similarities between the March 31 and April 9 incidents and, therefore, undercut her contention that Sanders died from an unavoidable accident, not an intentional act. The causation charge was not the only strategic refusal of a charge that defendant's trial attorney made. Defendant declined instruction on the intoxication defense because it did not comport with her theory of "unavoidable accident" and that the defendant was not, in fact, intoxicated.
Although defendant's factual theory was not summarized in the charge, it was presented to the jury through questioning and summation. More importantly, the reason that it was not presented to the jury is that defendant's trial attorney expressly, and for a strategic purpose, agreed that causation was not at issue, thereby negating the need to summarize the respective factual theories, which are only required to be summarized if "the defendant and State offer contrasting factual theories of causation." Model Jury Charge (Criminal), "2C:11-3a(l) and 3a(2) Murder" (2004). The State did present eyewitnesses to testify that in both incidents defendant aimed her vehicle at Sanders and did not stop when she struck him. The overwhelming evidence of a lack of mistake supports the trial judge's decision not to issue the additional causation charge. That decision was not "clearly capable of producing an unjust result." R. 2:10-2.
We also reject the arguments raised in defendant's pro se supplemental brief. R. 2:11-3(e)(2). We note that the State retained the vehicle for twenty months following the incidents. Moreover, photographs were taken of the vehicle, and notice of the sale of the vehicle was sent to defendant's last known address. Finally, defendant fails to set forth the prejudice that was suffered as a result of the vehicle being destroyed.
Lastly, we find no error in the sentence imposed or in the judge's consideration of the relevant, aggravating and mitigating factors. The imposed sentence was well supported by the record.
Affirmed and remanded for correction of the judgment of conviction.