State v. Rose

• Decision Date: 08 June 2011
• Citation: 206 N.J. 141,19 A.3d 985
• Parties: STATE of New Jersey, Plaintiff–Respondent,v.Zarik ROSE, Defendant–Appellant.
• Court: New Jersey Supreme Court

206 N.J. 141

19 A.3d 985

STATE of New Jersey, Plaintiff–Respondent,

v.Zarik ROSE, Defendant–Appellant.

Supreme Court of New Jersey.

Argued Jan. 4, 2011.Decided June 8, 2011.

Susan Brody, Assistant Deputy Public Defender, argued the cause for appellant (Yvonne Smith Segar, Public Defender, attorney).Frank Muroski, Deputy Attorney General, argued the cause for respondent (Paula T. Dow, Attorney General of New Jersey, attorney; Mr. Muroski, Robyn B. Mitchell, Deputy Attorney General, and Ashlea D. Thomas, Special Deputy Attorney General, of counsel and on the briefs).Alison S. Perrone argued the cause for amicus curiae Association of Criminal Defense Lawyers of New Jersey.Justice LaVECCHIA delivered the opinion of the Court.

Defendant Zarik Rose was convicted, as an accomplice, of the purposeful murder of Charles Mosley. The State's theory at trial was that defendant arranged for the murder while in jail and about to go to trial on earlier charges that he had attempted to murder the victim. In this appeal, we address whether evidence of defendant's previous indictment and incarceration on the pending attempted murder charges was admissible in defendant's trial for murder.

The disputed evidence was introduced at trial through several sources, two of which deserve to be highlighted. Larry Graves testified that, while he and defendant were in jail together and Graves's release date was approaching, defendant solicited him to kill Mosley. In fact, Graves pled guilty to aggravated manslaughter for killing Mosley and, pursuant to his agreement with the State, testified against defendant. Salvatore Puglia, who also met defendant while the two were in jail, testified that defendant had mentioned having Mosley “whacked” or making sure he did not testify in connection with the pending attempted murder charge against defendant. The State's evidence about defendant's pending indictment for attempted murder of Mosley, addressed through the anticipated testimony of Puglia and Graves, was reviewed pretrial by the trial court and declared admissible. The court determined that Graves's testimony was admissible as res gestae, but circumspectly provided the jury with a limiting instruction about the use of the evidence. As for Puglia's testimony, the trial court analyzed it under the rubric of New Jersey Rule of Evidence 404(b), found that it was not evidence of another crime but rather was evidence that involved this crime, and admitted the testimony after concluding that its probative value was not outweighed by its prejudicial effect. The court again provided a limiting instruction to channel the jury's use of that evidence. During the trial, defendant stipulated to the admission of a copy of his indictment on the attempted murder charges.

Defendant was convicted of purposeful murder and, on appeal, the Appellate Division affirmed. However, in specifically finding no error in the admission of the disputed evidence, the panel engaged in a fundamentally different analysis based on Evidence Rules 401 and 403. We issued a limited grant of certification, State v. Rose, 203 N.J. 96, 999 A.2d 465 (2010), to address only the admissibility of the evidence pertaining to defendant's prior indictment and incarceration on charges that he attempted to murder the victim, and now affirm the judgment of the Appellate Division. We conclude that the disputed evidence was admissible under a straightforward application of Evidence Rule 404(b). The evidence went to non-propensity purposes, chiefly motive, but also plan and intent by defendant, and the trial court provided instructions that properly limited the jury's use of the evidence to those legitimate purposes.

That said, the various positions taken by counsel, the trial court, and the Appellate Division on how to analyze the disputed evidence relating to defendant's previous indictment on charges for the attempted murder of the victim, demonstrate that there exists confusion and uncertainty about use of the common law doctrine of res gestae and its status as a viable feature of New Jersey's evidence jurisprudence. Accordingly, we address in this appeal the continued invocation of res gestae as an explanation for the admission of evidence, and hold that the doctrine of res gestae no longer has vitality in light of the formal Rules of Evidence.

I.

To set the stage for our review of the evidential rulings in issue, we begin with a recitation of the facts involved in the criminal charges against defendant.

A.

In 1995, defendant was incarcerated on charges relating to the attempted murder of Charles Mosley, the murder victim in the present appeal. While in jail, defendant met Puglia,¹ and explained to him that he and Mosley had an altercation over $1,500 that Mosley owed him. According to Puglia, defendant told him that during that altercation “one thing led to another” and that Mosley subsequently “pressed some serious charges” against defendant that defendant felt were “overinflated.” Defendant told Puglia that he did not want Mosley to appear as a witness against him at trial and that “plan A was to pay [Mosley] off and plan B was to get him whacked.”

In the fall of 1997, while still in jail awaiting trial on the attempted murder charges, defendant became acquainted with Graves, a fellow inmate. According to Graves, defendant told him on several occasions that he needed Mosley killed because his trial was scheduled to start on December 1, and Mosley was to be the prosecution's key witness. When Graves informed defendant that he was soon to be released from jail, defendant propositioned him: if Graves would kill Mosley, defendant would give him $2,000 to $3,000 and a quantity of drugs.

Graves agreed, so defendant conveyed pertinent details about Mosley: defendant gave him Mosley's telephone number and address in Franklinville, New Jersey, and told him that Mosley sold automobiles from his home. They planned to have Graves express interest in a truck with an automatic lift, use that interest to gain entrance into an office located at the front of Mosley's house, and then kill Mosley. Defendant also warned Graves that Mosley kept guns in his house. They further agreed that after the deed was done, Graves would inform defendant whether he had “sold the car,” which was code for having killed Mosley.

When Graves was released from jail on November 19, 1997, he went to his step-mother's home in Glassboro, and from there, took a bus to Franklinville the next day. When he arrived at Mosley's house, he found no one home, and his attempts to contact Mosley by telephone were unsuccessful. That night, defendant placed a collect call to Graves and asked whether Graves had “sold the car,” to which Graves responded that he had not, but that he planned to return to Mosley's the following day. Graves returned to Mosley's home the next day; again no one was home, but this time Graves managed to contact Mosley by phone. That night, defendant again called Graves and asked whether he had “sold the car.” When Graves responded in the negative, defendant sounded a “little bit ... worried”; he instructed Graves to return the following day.

Graves returned the next day for a third time and found Mosley at home. He told Mosley that he wanted to speak with him about a truck and was invited into Mosley's office. As the conversation progressed, Mosley seemingly grew suspicious of Graves. Mosley pointed to a cracked window, told Graves that someone had tried to break into his house, and that individual was now “in the cemetery.” Graves grew “uneasy” and “uncomfortable” and rose to leave, having changed his mind about carrying out the plan. As he walked towards the door, Graves “mentioned something about [defendant],” at which point Mosley “jumped up and grabbed a crowbar or a lug wrench” from the side of his desk and swung it at Graves. Graves managed to dodge the object, grab Mosley, and the two began to wrestle. Graves gained control of the object and used it to strike Mosley in the head. Graves then choked Mosley until he appeared to be dead. Graves took a “few hundred dollars” from Mosley's wallet and searched the house for weapons, but came up empty-handed. That night, Graves received another call from defendant, whom he told that he had “sold the car.” ²

As a result of Mosley's death, the charges against defendant were dropped in December 1997, and he was released from jail. He went to Graves's house, thanked him, and told him that he would get the money to pay him soon, but he never actually paid Graves. Defendant also cautioned Graves not to tell anyone about what had happened.

Although police suspected that defendant was involved in Mosley's death, they were unable, initially, to connect him to the murder. The only forensic evidence that the police collected was a fingerprint that did not produce any matches when entered into the Automated Fingerprint Identification System.

However, a few months later, an undercover sting operation led to Puglia's arrest for distribution of marijuana.³ The officers who interviewed Puglia believed that he would be able to help them connect defendant to Mosley's death. Puglia agreed to wear a “wire” to record his conversations with defendant ⁴ and a consensual intercept authorization was obtained from the prosecutor's office. Detective Danielle Lorusso, acting undercover as Puglia's girlfriend, drove Puglia and defendant around. On February 8, 1998, when Puglia spoke with defendant about having someone who had set him up killed, defendant cryptically referenced his situation with Mosley a few times, including the following recorded exchange:

[Puglia]: That pussy was talking s* *t last night man.

[Defendant]: Yo, I mean it won't even cost you that much to get him (indiscernible).

[Puglia]: To get him f* *ked up.

[Defendant]: Oh just, I mean I don't think you gonna, it's really not worth killing them, but I mean it, with me it was either, it was a life or...