State v. Green

• Court: New Jersey Supreme Court
• Writing for the Court: JUSTICE SOLOMON delivered the opinion of the Court.
• Citation: State v. Green, 236 N.J. 71, 197 A.3d 1136 (N.J. 2018)
• Decision Date: 28 November 2018
• Docket Number: A-39 September Term 2017,080274
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. Carlos B. GREEN, Defendant-Respondent.

236 N.J. 71

197 A.3d 1136

STATE of New Jersey, Plaintiff-Appellant,

v.Carlos B. GREEN, Defendant-Respondent.

A-39 September Term 2017

080274

Supreme Court of New Jersey.

Argued September 26, 2018

Decided November 28, 2018

Stephen A. Pogany, Special Deputy Attorney General, Acting Assistant Prosecutor, argued the cause for appellant (Theodore N. Stephens, II, Acting Essex County Prosecutor, attorney; Stephen A. Pogany, of counsel and on the briefs).

Molly O'Donnell Meng, Assistant Deputy Public Defender, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney; Molly O'Donnell Meng, of counsel and on the briefs).

Jennifer E. Kmieciak, Deputy Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (Gurbir S. Grewal, Attorney General, attorney; Jennifer E. Kmieciak, of counsel and on the brief).

JUSTICE SOLOMON delivered the opinion of the Court.

This case comes to us on interlocutory appeal from the trial court's determination, affirmed by the Appellate Division, that the State could not present evidence of defendant Carlos B. Green's two prior driving while intoxicated (DWI) convictions in this current prosecution for vehicular homicide while intoxicated. The State sought to introduce the prior convictions as state of mind evidence -- evidence that defendant acted recklessly by "consciously disregard[ing the] substantial and unjustifiable risk" of causing harm by driving while intoxicated. See N.J.S.A. 2C:2-2(b)(3). We conclude that the trial court did not abuse its discretion in excluding defendant's two prior DWI convictions here. Although we impose no per se exclusion of prior DWI convictions in a prosecution for vehicular homicide while intoxicated, this case does not present the rare circumstances that would render their admission appropriate.

I.

On a late December night in 2014, defendant Carlos B. Green (Green) struck and killed Billy Ray Dudley (Dudley), who was lying in the road. A toxicology lab determined Green's blood alcohol concentration (BAC) to be 0.210% at the time of the accident. Pursuant to N.J.S.A. 39:4-50, a person who operates a motor vehicle with a BAC of 0.08% or more is guilty of driving while intoxicated.

Green had two prior DWI convictions in 1998 and 2009, for which his sentences each required completion of an educational course at the Intoxicated Driving Resource Center (IDRC). The IDRC conducts a post-conviction intervention program for those convicted of an alcohol or drug-related traffic offense. The program is designed to educate participants about alcohol and its effects on motor vehicle safety. At the IDRC, participants attend a series of educational sessions and discussions in order to successfully complete the course.

As a result of Dudley's death, Green was charged in a grand jury indictment with first-degree vehicular homicide while intoxicated and within 1,000 feet of a school, contrary to N.J.S.A. 2C:11-5(b)(3)(a). Before trial, the State moved in limine to introduce Green's two prior DWI convictions, which the State argued were relevant to the issue of recklessness. According to the State, the prior convictions demonstrated that Green "had knowledge of the substantial and unjustifiable risks associated with driving while intoxicated."

The trial court denied the State's motion. Applying the factors established by this Court in State v. Cofield, 127 N.J. 328, 338, 605 A.2d 230 (1992), the trial judge ruled that the evidence was unduly prejudicial because a jury might use the prior convictions as evidence that Green acted in conformity with that behavior in this instance. Quoting United States v. Rutherford, 54 F.3d 370, 376 (7th Cir. 1995), the court noted that "[a]ny drunk driver who takes to the road should know he runs a risk of injuring another person." The court also ruled that the evidence was cumulative because the State had a toxicology report indicating that Green had a BAC of 0.210% at the time of the incident. Therefore, the State did not need to rely on defendant's prior convictions to establish recklessness.

The Appellate Division granted the State's motion for leave to file an interlocutory appeal. On appeal, the State primarily relied on State v. Bakka, 176 N.J. 533, 826 A.2d 604 (2003), for the proposition that prior unsafe conduct, like driving while intoxicated, can be highly probative of recklessness. The State also cited decisions from other jurisdictions that admit evidence of prior DWI convictions to establish recklessness. Finally, the State argued that because Green was instructed at the IDRC about the dangers of driving while intoxicated, evidence of his convictions would tend to prove his awareness and conscious disregard of the risks of driving while intoxicated when he chose to drink and drive again.

In response, Green argued that the motion judge correctly applied the Cofield factors to exclude his prior convictions, which were too remote and unduly prejudicial. Green stressed that other than his intoxication, there was no indication that he was operating his vehicle recklessly -- Green was not swerving or speeding, he had his lights on, and Dudley was lying in the roadway in the dark. Finally, Green contended that the State could prove his intoxication with less inflammatory evidence, such as the toxicology results and police testimony.

The Appellate Division affirmed the trial court, citing this Court's acknowledgment that "[d]riving while intoxicated may alone satisfy the recklessness required by the death by auto statute." State v. Green, 452 N.J. Super. 323, 325-26, 173 A.3d 1093 (App. Div. 2017) (quoting State v. Jamerson, 153 N.J. 318, 335, 708 A.2d 1183 (1998) ). The panel found that Cofield requires trial courts to "engage in a ‘careful and pragmatic evaluation’ that focuses on ‘the specific context in which [other-crimes] evidence is offered’ " to determine admissibility. Id. at 326-27, 173 A.3d 1093 (quoting State v. Stevens, 115 N.J. 289, 303, 558 A.2d 833 (1989) ). Applying the Cofield factors, the panel concluded that the trial judge did not abuse his discretion in excluding Green's two prior DWI convictions. Id. at 328-29, 173 A.3d 1093.

The State sought leave to appeal, which we granted. 232 N.J. 97, 178 A.3d 67 (2018). We also granted amicus curiae status to the New Jersey Attorney General.

II.

The parties' arguments here mirror those raised in the Appellate Division. In addition, the State urges this Court to join those jurisdictions that admit evidence of prior bad acts for the purpose of establishing knowledge, malice, or another state of mind. The State argues that this Court should therefore hold that Green's prior DWI convictions are admissible for the limited purpose of establishing his knowledge and recklessness. The State also contends that there is no reason to believe that the jury would use this evidence for an improper purpose, particularly because trial courts can alleviate any prejudicial effect by giving a limiting instruction.

The Attorney General's arguments largely echo the arguments set forth by the State. Additionally, the Attorney General asks this Court to revisit Cofield's Rule 404(b) analysis, arguing that the Cofield Court intended to "simply incorporate" Rule 403 into the other-crimes test. According to the Attorney General, the fourth prong has "somehow morphed" into a more stringent Rule 404(b) analysis. The Attorney General thus urges this Court to reevaluate the "dramatic shifting" of Cofield's fourth prong, particularly because this shift occurred "without the issue being litigated."

Green asks this Court to "reject the State's invitation to follow other jurisdictions with less-protective rules of evidence." Green also argues that the State's reliance on Bakka is misplaced, as the defendant in Bakka drove with a suspended license and was charged with aggravated manslaughter, which requires proof of a higher level of recklessness than does vehicular homicide. Green further contends that even if Bakka is applicable, the trial court and Appellate Division decisions were entirely consistent with Bakka's mandate to apply the Cofield factors on a case-by-case basis.

III.

A.

We begin our discussion by acknowledging that the admissibility of evidence at trial is left to "the sound discretion of the trial court." State v. Willis, 225 N.J. 85, 96, 137 A.3d 452 (2016). A trial court's evidentiary ruling is therefore reviewed on appeal for abuse of discretion. State v. Rose, 206 N.J. 141, 157, 19 A.3d 985 (2011). In addition, sensitive admissibility rulings regarding other-crimes evidence made pursuant to Rule 404(b) are reversed "[o]nly where there is a clear error of judgment." Id. at 157-58, 19 A.3d 985 (alteration in original) (quoting State v. Barden, 195 N.J. 375, 391, 949 A.2d 820 (2008) ). However, that deferential approach is inappropriate when the trial court failed to properly apply Rule 404(b) to the evidence at trial. Id. at 158, 19 A.3d 985. When that occurs, "an appellate court may engage in its own ‘plenary review’ to determine ... admissibility." Ibid. (quoting Barden, 195 N.J. at 391, 949 A.2d 820 ). In other words, appellate review is de novo when the court should have, but did not perform a Cofield analysis. State v. Reddish, 181 N.J. 553, 609, 859 A.2d 1173 (2004).

B.

This appeal focuses on the admission of other-crimes evidence -- specifically, Green's two prior DWI convictions and evidence of his subsequent participation in IDRC courses. Rule 404(b) bars "evidence of other crimes, wrongs, or acts" when used "to show that [a] person acted in conformity therewith." N.J.R.E. 404(b). However, evidence of prior "crimes, wrongs, or acts" may be used to show "intent, ... knowledge, ... or absence of mistake or accident." Id. Because evidence of a defendant's other crimes "has a unique tendency" to prejudice the jury, Reddish, 181 N.J. at 608, 859 A.2d 1173 (quoting Stevens, 115 N.J. at 302, 558 A.2d 833 ), other-crimes evidence proffered under Rule 404(b)...