State v. Stephen F. Scharf(074922) , 225 N.J. 547 ( 2016 )

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized).
State v. Stephen F. Scharf (A-46-14) (074922)
Argued February 2, 2016 -- Decided July 18, 2016
LaVECCHIA, J., writing for a unanimous Court.
In this appeal, the Court addresses whether it was error for the trial court to admit hearsay statements from
the victim’s friends and her therapist, including statements that the victim repeatedly told the witnesses of her fear of
defendant. The Court further considers whether the evidence, cumulatively, constituted an abuse of the trial court’s
discretion that caused defendant’s trial to be unjust.
In 2011, defendant was convicted of murdering his wife Jody, who fell off a cliff at the Palisades one
evening in 1992, shortly after filing for divorce from defendant. Defendant put forward a defense of accident. In
preparation for trial, the State’s evidence included oral statements made by Jody to her friends and therapist, which
were proposed for admission as going to Jody’s state of mind. The State sought to use the evidence to rebut
defendant’s narrative that Jody’s death was an unfortunate accident. The defense moved to exclude the hearsay
statements. Although, the defense acknowledged that state-of-mind evidence may become probative where accident
is the defense, counsel stressed the volume of potential state-of-mind evidence (the State proposed statements from
twenty-six witnesses). In response, the State clarified its intent to rely on Jody’s statements to only six individuals.
The trial court denied defendant’s motions. The court found Jody’s state of mind to be “highly probative,”
and determined that her statements would provide evidence to “directly counter” defendant’s assertion that the fall
was accidental. The court emphasized that the statements would be admitted solely to show Jody’s state of mind,
and directed the attorneys to prepare limiting instructions to make that clear. Concerning the proposed testimony by
Jody’s therapist, the court found that one of the statements -- namely, that Jody had refused defendant’s invitation to
the cliffs and that she had never been there before -- was admissible under N.J.R.E. 803(c)(3). The court allowed
the admission of other statements made to the therapist as statements made for the purpose of medical diagnosis and
treatment of depression. Again, the court asked the attorneys to prepare an appropriate limiting instruction.
On the third day of defendant’s trial, the State called five witnesses to testify to the statements that are at
issue in this appeal. The witnesses claimed that Jody repeatedly told them of her fear of defendant, particularly after
she had served him with a divorce complaint, and told them that she had declined defendant’s request to go to the
Palisades cliffs with him shortly before her death. The bulk of the testimony came from the first two witnesses,
Jody’s friend and her therapist, and the first three witnesses testified without objection from defense counsel.
Defense counsel registered an objection when the fourth witness was called, claiming that the testimony was
cumulative. The court allowed the testimony to proceed, and the remaining two witnesses were brief. Throughout
the testimony of those witnesses, defendant did not request a limiting instruction.
Over the next seven days of trial, the State presented testimony from fourteen witnesses concerning
physical and forensic evidence obtained during the investigation into Jody’s death. The evidence included
testimony that Jody’s injuries were “not consistent with an innocent fall,” and that Jody “had to have been propelled
from that point” on the cliffs given that a body from an innocent fall “could not go out that far.”
Following summations, the trial court instructed the jury. The instruction provided on the state-of-mind
hearsay testimony was negotiated between the parties and was what the defense had requested. The court instructed
the jury that, “[i]f you find that she made these statements then you may consider them only for the purpose of
determining her state of mind at the time those statements were made and for no other reason.” Defendant was
convicted of first-degree purposeful and knowing murder, N.J.S.A. 2C:11-3(a)(1) and N.J.S.A. 2C:11-3(a)(2).
An appellate panel reversed the conviction, concluding that the trial court erred in admitting the statements.
To the panel, Jody’s “expressions of fear of defendant were neither relevant nor material” and also were “highly
prejudicial and clearly cumulative.” The Court granted the State’s petition for certification. 221 N.J. 219 (2015).
HELD: State-of-mind hearsay statements by a deceased about fear of a defendant, who later advances in his or her
defense in a homicide prosecution a claim that the victim’s death was accidental, are admissible for the purpose of
proving the declarant’s state of mind under N.J.R.E. 803(c)(3). Such evidence is relevant when the door is opened by
the defense. A weighing for undue prejudice should follow a review for relevance under Rule 803(c)(3).
1. The Evidence Rules limit the admissibility of hearsay testimony. One exception allowing for the admission of
hearsay is the state-of-mind exception, N.J.R.E. 803(c)(3). When a matter places a declarant’s state of mind in
issue, the Rule allows a declarant’s out-of-court statement to be admitted for that singular purpose. The state-of-
mind exception does not broadly allow admission of a victim’s recounting of a defendant’s threats. However,
declarations of fear can be admitted to establish that the decedent was not the aggressor, did not commit suicide and
was not accidently killed, provided that those matters satisfy the relevancy requirement. When accident is proffered
as the explanation for a death, the state-of-mind hearsay exception has been used to admit testimony about a
decedent’s prior statements. See United States v. Brown, 490 F.2d 758, 767 (D.C. Cir. 1973). Other jurisdictions
similarly recognize that a homicide victim’s prior statements of fear of a defendant are both relevant and admissible
-- through state-of-mind testimony -- if the defendant in the case is claiming that an accident occurred. (pp. 25-29).
2. This is the first case in which the Court is squarely in a position to pass on whether state-of-mind hearsay may be
admitted to rebut a defense that the victim’s death was accidental. New Jersey’s case law previously suggested that
such evidence was admissible. The Court now holds that state-of-mind hearsay statements by a deceased about fear
of a defendant, who later advances in his or her defense in a homicide prosecution a claim that the victim’s death
was accidental, are admissible for the purpose of proving the declarant’s state of mind. Such evidence is relevant
when the door is opened by the defense, as occurred here. (pp. 29-30).
3. Having determined that state-of-mind evidence is relevant when defendant advances an accidental-death theory,
the Court assesses whether the trial court abused its discretion in admitting the evidence. The court was specific in
what it allowed: statements of fear of defendant; statements about defendant’s abusive conduct toward Jody, but not
specific acts; statements about her fear of heights; and statements about her intent to continue with the divorce. The
court cautioned that it was allowing limited reference to alleged domestic violence only for the “singular purpose” of
showing Jody’s state of mind. Importantly, the court stated that it would not permit any of the testimony to be used
to prove defendant’s motivation or conduct. Based on the argument advanced pretrial, the Court finds no error in
the trial court’s admissibility determination. The testimony was relevant to disputed, material factual issues about
Jody’s state of mind toward defendant, about her marital relationship, and about her likely conduct. (pp. 30-34).
4. The Court next addresses how the statements were handled at trial. Notably, the defense did not object to the
content of the testimony of the first three witnesses who testified to statements Jody made to them. Nor did counsel
request or suggest any limiting instruction at the time. Instead, the defense objected to the cumulative nature of the
two remaining witnesses after the fourth witness was called to the stand. The Court views the testimony of the
fourth and fifth witnesses from the vantage point of the trial court as the testimony unfolded. Plainly, the witnesses
were the tail of this testimony. That day, the State presented a total of five witnesses, and counsel did not object
until the short presentations of the fourth and fifth witnesses. Overall, the objected-to testimony was brief, covered
some different ground, and was not cumulative to the point of being erroneously admitted. (pp. 34-36).
5. On appeal, defendant advanced arguments not presented to the trial court: Defendant argued that the prejudicial
content of Jody’s statements required their exclusion, and that the jury instructions on the use of the state-of-mind
evidence were inadequate. Here, the better practice would have been for the trial court to have limited the state-of-
mind testimony. However, the evidence of the five witnesses, presented on a single day of this multi-day trial, was
not an overriding part of the State’s presentation; the great bulk of the State’s case, presented over many days,
focused on the investigation and forensic evidence. The jury also was told by the court to use the statements only
for the purpose of understanding Jody’s state of mind. Thus, the Court does not perceive the admission of the
evidence to constitute plain error. Nor does the Court find plain error in the jury instruction. In light of the manner
in which the trial court solicited input and engaged with counsel over a proper limiting instruction, the result here
was a negotiated charge that the Court cannot say caused defendant’s trial to be unjust. (pp. 36-41).
6. Having addressed the arguments raised in this matter, the Court highlights its concerns about dangers associated
with use of state-of-mind testimony about a declarant’s fear of a defendant. Care must be taken to guard against
undue prejudice and the risk that the jury may misuse the evidence. Accordingly, trial courts are obligated to
perform an express Rule 403 weighing of evidence in addition to an assessment for relevance of the victim’s state-
of-mind testimony under Rule 803(c)(3). A weighing for undue prejudice should follow a review for relevance
2
under Rule 803(c)(3). In addition to the court’s ability to exclude such evidence, the trial court should consider
limiting its amount, including redacting or sanitizing it as appropriate, to balance the interests of the proponent of
the testimony and that of the party against whom it is used. Further, a proper limiting instruction is necessary to
guard against the risk that the jury will consider the victim’s statements of fear as evidence of the defendant’s intent
or actions. The better practice, whether requested or not, is to tailor the charge on how to use the state-of-mind
evidence to the facts and to tell the jury how the evidence may be used and how it may not be used. (pp. 41-45).
The judgment of the Appellate Division is REVERSED and the matter is remanded for consideration of
defendant’s unaddressed appellate arguments.
CHIEF JUSTICE RABNER; JUSTICES ALBIN, FERNANDEZ-VINA and SOLOMON; and
JUDGE CUFF (temporarily assigned) join in JUSTICE LaVECCHIA’s opinion. JUSTICE PATTERSON
did not participate.
3
SUPREME COURT OF NEW JERSEY
A-46 September Term 2014
074922
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
STEPHEN F. SCHARF,
Defendant-Respondent.
Argued February 2, 2016 – Decided July 18, 2016
On certification to the Superior Court,
Appellate Division.
Catherine A. Foddai, Senior Assistant
Prosecutor, argued the cause for appellant
(John L. Molinelli, Bergen County
Prosecutor, attorney).
Stephen W. Kirsch, Assistant Deputy Public
Defender, argued the cause for respondent
(Joseph E. Krakora, Public Defender,
attorney).
Ian C. Kennedy, Deputy Attorney General,
argued the cause for amicus curiae, Attorney
General of New Jersey (John J. Hoffman,
Acting Attorney General, attorney; Mr.
Kennedy and Daniel I. Bornstein, Deputy
Attorney General, of counsel and on the
briefs).
JUSTICE LaVECCHIA delivered the opinion of the Court.
Defendant Stephen Scharf was convicted of first-degree
purposeful and knowing murder of his wife Jody, who fell to her
death off a cliff at the Palisades. Defendant put forward a
1
defense of accident. During the trial, the court allowed the
State to present, in rebuttal to the defense of accident,
hearsay statements, under N.J.R.E. 803(c)(3) and (c)(4), from
Jody’s friends and her therapist. The witnesses claimed that
Jody repeatedly told them of her fear of defendant, particularly
after she had served him with a divorce complaint, and told them
that she had declined defendant’s request to go to the Palisades
cliffs with him shortly before her death.
On appeal, the Appellate Division reversed the conviction
because the reviewing court concluded that the trial court erred
in admitting the hearsay statements. The case is before us on
the State’s petition for certification. State v. Scharf, 221
N.J. 219 (2015). The appeal requires us to address whether it
was error for the trial court to have admitted the evidence and,
even if the evidence was admissible, whether the evidence,
cumulatively, constituted an abuse of the trial court’s
discretion that caused defendant’s trial to be unjust.
I.
A.
On September 20, 1992, Palisades Interstate Parkway police
officers responded to a report that a person had fallen from the
Englewood cliffs.1 First responder, Officer Paul Abbott,
1 To place the legal issue in context, we summarize the facts as
they were presented during the trial. Because the murder for
2
explained in his testimony that the cliffs provide a scenic
lookout across the Hudson River. When Abbott arrived at the
scene at approximately 8:12 p.m., it was already dark.
Defendant approached Abbott in the parking area and told him
that his wife had fallen from the cliff. Abbott drove defendant
to the northern end of the cliffs -- the area from which
defendant said that his wife had fallen. Officer Lowell Tomayo,
who responded to the scene with Abbott, followed in a second
vehicle. Upon arriving at the northern end of the cliffs,
defendant guided the officers on foot down an unmaintained and
overgrown path into a wooded area.
According to testimony from Abbott and Tomayo, the officers
and defendant eventually reached the edge of the cliff, and
defendant indicated the precise spot from where his wife had
fallen, pointing to a flat rock that jutted out from the cliff.
A fence separated the wooded area from the cliff’s edge. The
officers crossed the fence and called Jody’s name, but received
no response. The officers saw a pocketbook lying approximately
eight feet below the cliff; it was later identified as belonging
to Jody. Jody’s body was recovered late that night. Forensic
which defendant was convicted occurred in 1992 and the trial
took place in 2011, the proceedings that explain that delay are
also recounted.
3
examination of her body established that, at the time of her
death, she had a blood alcohol content of 0.12%.
Defendant was escorted to police headquarters, where he
spoke with Detective Ronald Karnick and gave a written statement
concerning what had happened that evening. In that statement,
defendant told Karnick that he and his wife had planned to go
into New York City to a comedy club that evening, that the
lookout on the cliff had been “their spot,” and that they had
been drinking in their car prior to walking to the lookout
point. Defendant said that he and Jody walked down the trail,
climbed through the fence, and sat on the flat rock that he had
shown to the officers earlier. According to defendant, he and
Jody began engaging in amorous activities, at which point Jody
indicated she was uncomfortable so he offered to retrieve a
blanket and some wine from the car. Defendant said that he and
Jody both stood up, and then Jody suddenly fell forward off the
rock. Defendant said that he called her name but received no
response.
Karnick obtained defendant’s permission to search his
vehicle and found in it a cooler, a wine glass, two wine coolers
(one full, one empty), a bottle of wine, a knife, a blanket,
some bandages, two white towels, a candle, a receipt, a box of
crackers, a jewelry box containing a cross and a “gold-type
chain,” and a claw hammer.
4
As the investigation continued, subsequent questioning of
defendant uncovered additional information. Defendant revealed
that, two weeks prior to her death, Jody served defendant with a
divorce complaint that alleged defendant was abusive and
unfaithful. Defendant told investigators that Jody was a heavy
drinker and that both he and she had dated other people as part
of an open marriage. However, defendant told the investigators
that he had ended his relationships with the other women and
hoped that a “trip to the cliffs” would lead to his and Jody’s
reconciliation.
In an interview a few days after Jody’s death, defendant
stated that he and his wife had planned to go out to dinner and
then to New York City on September 20, 1992, the evening of her
death. Defendant told the officers that, the night before, he
and Jody had dined out together with their son, but on the next
evening, which was a Sunday, they arranged for someone to watch
their son. They were on the way to New York City, from their
home in Morris County, when, defendant claimed, he and Jody
decided to make a detour to the cliffs.
At the time of law enforcement’s initial investigation into
the circumstances of Jody’s death, interviews of Jody’s friends
and acquaintances called into question several of defendant’s
assertions, including Jody’s state of mind, her activities, and
her interactions with defendant leading up to her death. Also,
5
according to the testimony of the investigating officers,
defendant’s responses to repeated questioning revealed
inconsistencies, including differing versions of how the fall
occurred, and some inculpatory indications. Nonetheless, the
criminal investigation into the circumstances of Jody’s death
did not lead initially to charges being filed against defendant.
However, certain events that occurred after Jody’s death and
before defendant’s indictment bear notice at this point.
At the time Jody died, the medical examiner concluded that
the cause of death was “multiple fractures and injuries”;
however, the examiner remained uncertain about the “manner of
death” and listed it as “pending investigation” on the death
certificate. The medical examiner amended the “manner of death”
in 1993 to “could not be determined.”
The record also reveals that, during the year prior to her
death, defendant obtained a life insurance policy on Jody in the
amount of $500,000 -- $300,000 as a basic amount of insurance
and $200,000 as an accidental death benefit. After Jody’s
death, defendant did not file a claim for the proceeds of that
policy. After the proceeds had remained unclaimed for the
lawfully required number of years, the insurer forwarded the
monies to the State as unclaimed funds. See N.J.S.A. 46:30B-9,
-22. In 2003, defendant claimed the money held by the State,
which had grown to $770,650.83 with interest.
6
The Bergen County Prosecutor’s Office reevaluated the
circumstances of Jody’s death in 2004, and for the first time,
the medical examiner went to the location at the cliffs to view
the area where Jody fell and where her body was recovered.
After reinvestigation of the matter, in 2007, the medical
examiner amended the “manner of death” on Jody’s death
certificate from “could not be determined” to “homicide.” The
Bergen County Prosecutor’s reevaluation of the evidence and
follow-up interviews, detailed in the discussion of the trial
testimony, led to a decision to pursue a murder charge against
defendant for the 1992 death of his wife.
A grand jury indicted defendant for first-degree purposeful
and knowing murder, N.J.S.A. 2C:11-3(a)(1) and 2C:11-3(a)(2).
B.
As noted, defendant proffered a defense of accident. The
State’s evidence in preparation for trial included oral
statements made by Jody to her friends and to her therapist,
which were proposed for admission by the State as going to the
state of mind of the victim. The State sought to use the
evidence to rebut defendant’s narrative that Jody’s death was
due to an unfortunate accident that took place when he and she
were alone on the cliffs on the evening of Sunday, September 20,
1992.
7
The defense filed a pretrial motion to exclude Jody’s
hearsay statements. At the pretrial hearing on the motion,
defense counsel “acknowledge[d] that where accident is the
defense [state-of-mind evidence] may become probative.”
However, defense counsel stressed the large volume of potential
state-of-mind evidence that was proffered by the State (there
were thirty-four potential statements from twenty-six
witnesses), arguing that the trial court needed to determine
whether the statements made by Jody were made in good faith at
the time when they were spoken. In response to the motion, the
State whittled down its list of proposed witnesses on this
issue. It clarified its intent to rely on Jody’s statements to
six individuals regarding her state of mind around the time of
her death.
In a written decision issued April 11, 2011, the trial
court denied defendant’s motions to exclude the proposed
testimony of Jody’s statements to friends and to exclude the
statements made to her therapist. The trial court acknowledged
that twenty-six individuals had provided the State with
approximately thirty-four statements made by Jody, but that the
State had narrowed that list down to the ones before the court.
The court stated that it carefully reviewed those statements
prior to ruling to assess whether they contained admissible
evidence. After reviewing the state-of-mind hearsay exception
8
under N.J.R.E. 803(c)(3), and noting that defendant was arguing
that Jody’s fall was accidental, the court stated that “New
Jersey courts have recognized that when a defendant claims that
the victim’s death was accidental, then the victim’s state of
mind becomes relevant and the victim’s statements of fear
become[] admissible.” The court found Jody’s state of mind to
be “highly probative” on the issues to be tried in this matter
and concluded that the State should be permitted to introduce
the testimony of the six witnesses who would tell of Jody’s
expressed fear of defendant and of his abusive conduct, her
expressed intent to continue with the divorce proceedings
initiated against defendant, and her expressed fear of heights.
According to the trial court, Jody’s statements to those
six identified individuals were made close enough in time to the
events of September 20, 1992 and would provide evidence that
would “directly counter” defendant’s assertion that Jody’s fall
from the Palisades cliffs while alone with defendant was
accidental. The court specifically stated that it would allow
limited reference to alleged domestic violence to be elicited
from the witnesses and only for the “singular purpose” of
showing Jody’s state of mind. However, the court warned that
the statements would not be permitted to “prove the defendant’s
motivation or conduct” and emphasized that “[t]hese statements
are solely admissible to show Jody’s state of mind.” The court
9
directed the attorneys to prepare limiting instructions that
would be provided to the jury in order to make that distinction
clear.
Concerning the proposed testimony by Jody’s therapist, the
court found that a statement made by Jody to the therapist –-
namely, that she had refused defendant’s invitation to accompany
him on a picnic to the Palisades and that she had never been to
that spot before -- was admissible under N.J.R.E. 803(c)(3).
The court considered the statement to relate to the
“relationship between Jody and defendant” and to be part of “the
‘mosaic’ of the event.” The court explained that the fact that
Jody told her therapist that she had never been to the Palisades
was “part of the totality of her relationship with the defendant
and placed in issue the defendant’s version of their marital
relationship.”
The court allowed the admission of other statements made by
Jody to her therapist under N.J.R.E. 803(c)(4) as statements
made for the purpose of medical diagnosis and treatment. To
that end, the court found that “the statements relating to both
the cause and symptoms of Jody’s depression carr[ied] with them
inherent reliability because Jody would necessarily have
believed that effective treatment . . . was largely dependent
upon the accuracy of the information provided to” her therapist.
In admitting that testimony, the court stated it was convinced
10
that Jody’s statements to her therapist were “medically
necessary for effective treatment,” adding that it considered it
appropriate to allow the therapist’s testimony “as to cause,
symptoms and feelings Jody conveyed to her while she was
treating Jody for depression.” Again, the court asked the
attorneys to prepare an appropriate limiting instruction that
would discuss the purpose for which this evidence could be
considered by the jury.
C.
Defendant’s jury trial began with opening statements on
April 19, 2011. Over the entire first two days of trial, the
State called three witnesses: Jonathan Scharf, the son of Jody
and defendant, and two women with whom defendant had had
extramarital relationships.
Jonathan’s testimony was damaging to his father, although
the defense brought out differences between Jonathan’s interview
at the time of his mother’s death when he was a child, and which
was apparently not recorded, and his recorded testimony at the
time of his father’s arrest, as well as additional information
that did not come out until trial.2 Undermining the narrative
2 Defense counsel pointed out inconsistencies between Jonathan’s
testimony on direct examination and his statements to police
shortly after defendant was arrested. Jonathan explained those
inconsistencies by admitting that he was afraid of his father
and held back in his second interview, even though he was an
adult at the time. Jonathan stated that he was concerned that
11
presented by defendant to police interrogators, Jonathan, who
was ten years old at the time of his mother’s death, testified
that he accompanied his parents when they went out to dinner the
Saturday night before Jody’s death because Jody had not wanted
to go out alone with defendant; she had insisted that Jonathan
had to be with them. He also testified that his parents had
never been to the cliffs before the date of the incident. His
testimony also included reference to his mother’s fear of
heights, even to the extent that she would not climb a step
ladder because of that fear.
The two women who had extramarital affairs with defendant
also provided damaging testimony, specifically recounting
statements by defendant that negated his assertion that he had
ended his extramarital relationships with them.
T.S. testified that she began dating defendant in 1990 and
that after about six to seven months, he began to regularly
spend three nights per week at her home. T.S. testified that
defendant never expressed a desire to end their relationship.
Defendant had told T.S. that he was not married -- he claimed
that his wife had died in a car accident in Georgia ten years
earlier -- and that he had fathered his son Jonathan with a
defendant might try to harm Jonathan’s wife and that he wanted
to be sure defendant was in custody before he disclosed some of
the events about which he testified.
12
“career woman” who lived in the same residential complex as him
but who did not want to get married. According to T.S.,
defendant told her that the custody arrangement over Jonathan
was “amicable.” At some point, defendant mentioned the
possibility of marriage. Although T.S. was not interested in
marriage, the relationship continued. More specifically to the
time period of Jody’s death, T.S. testified that defendant did
not join her as planned on a long Labor Day weekend trip in
September 1992. Arriving late, defendant told her that he was
under a lot of stress, apologized, and stated that, if T.S.
would “give [him] to the end of September . . . everything will
be okay, the stress will be -- a lot of the stress will be
gone.”
The other woman who testified, K.S., met defendant in 1990
through a newspaper dating advertisement. Defendant told K.S.
that he was divorced and had a son. As they continued to see
each other, defendant later admitted that he was married, but
claimed that he was planning to get a divorce. K.S. stated that
she contacted Jody by phone and that Jody also told her that she
and defendant were separated and that they dated other people.
The relationship between K.S. and defendant ended shortly
thereafter.
K.S. testified that defendant continued to contact her
through the end of 1990 into 1991 and that, in the early part of
13
1992, K.S. began to see defendant again once defendant informed
her that Jody was going to file for divorce. K.S. stated that
defendant even showed her in July of 1992 the as-yet unserved
divorce papers that Jody’s attorney had prepared.3
In her testimony, K.S. described her relationship with
defendant in September 1992 as “serious,” stating that the two
had briefly discussed marriage. Defendant had never expressed a
desire to end their relationship, according to K.S. She
testified that defendant called her to inform her of Jody’s
death, explaining that they had gone to the Palisades and Jody
had fallen from a rock.
It was on the third day of the trial that the State called
five witnesses to testify to the statements, made by Jody to
them, that are at issue in this appeal. The testimony of all
five individuals was completed that day. The great bulk of the
testimony that day came from the first two witnesses, M.H.,
Jody’s friend, and Patricia Teague, Jody’s therapist.
M.H. testified that she and Jody became friends because
they frequented the same lunch spot when the two were in the
same area conducting business. She stated that Jody was “very
frightened of [defendant].” M.H. described how, in the month
3 Examination of the record reveals that, in July, Jody had filed
for divorce but that the papers had not yet been served on
defendant. The papers were served in September, shortly before
her death.
14
leading up to Jody’s death, Jody frequently mentioned her fear
of defendant, stating that she “felt he was going to really hurt
her.” Having gone through a divorce fifteen years earlier, M.H.
had discussed with Jody taking steps toward a divorce. Jody
confided in M.H. around the time that she served defendant with
divorce papers in the late summer of 1992, telling M.H. that she
“was very afraid” and that she feared that “once these papers
are served on [her] husband . . . something’s going to happen to
[her].” M.H. added that Jody was “very afraid for her life” and
“very afraid that he was going to kill her.” According to M.H.,
Jody said that “if anything happens after this, I want you to
know who did it.” Defense counsel did not object during M.H.’s
testimony.
The second witness, Jody’s therapist, Patricia Teague,
testified that “verbal, mental physical abuse” led to Jody’s
feelings of serious depression, which were the focus of their
sessions together. Teague also stated that in the course of
their discussions Jody had told her that she had never been to
the cliffs and that, although defendant recently had invited her
to go with him to the cliffs, she had told Teague that she did
not intend to go there ever with defendant. Defense counsel did
not object to this testimony.
The third witness was M.G., who testified that she knew
Jody because she worked at a restaurant frequented by Jody and
15
her son, when he had activities going on in a park nearby, or
sometimes by Jody alone. M.G. testified that she last saw Jody
on the Saturday before she died when Jody came into the
restaurant. Because she was busy with customers, M.G. was
unable to talk with Jody, but she was passed a note from Jody,
which informed her that Jody had served defendant with divorce
papers on Friday and that defendant “was very unhappy about it
and . . . she was kind of afraid.” Although in the note Jody
had asked M.G. to call her later, M.G. did not. By way of
background, M.G. explained that she and Jody had discussed
Jody’s marital problems in previous conversations and how Jody
wanted defendant out of the house. On cross-examination, M.G.
added that she had encouraged Jody to take legal action to help
herself. Again, defense counsel did not object.
When the fourth witness, M.D., was called to the stand,
defense counsel requested to be heard at sidebar. In that
exchange, defense counsel registered an objection to the next
witnesses, claiming that the testimony was cumulative. Counsel
stated, “I expect the Prosecutor basically to put another three
witnesses [on] to say the exact same thing that Jody says, she
was afraid of my client and I think it[’s] gotten to the point
where it’s cumulative and that it shouldn’t proceed any further.
All these witnesses are basically going to say the exact same
thing.” The prosecutor responded that each witness came from a
16
different part of Jody’s life and asserted the right to present
those different perspectives. The court allowed the testimony
to proceed, stating: “Okay. All right. The objection is that
it’s cumulative. Let’s see what they have to say. You can make
further objections.”
The remaining two witnesses were brief, comprising
respectively twelve and ten pages of transcript, direct and
cross-examination combined.
M.D., defendant’s and Jody’s neighbor, testified that she
last saw Jody on the Saturday before she died because she was
working at the same restaurant as M.G. M.D. stated that Jody
told her that she had filed for divorce, that she had served
defendant with divorce papers, and that defendant had refused to
sign the papers and threatened her life. M.D. also stated that
Jody had “feared for her life” and that defendant had told her,
upon receiving the divorce papers, that “he would see her dead
before he’d let her -- before he would sign them.” Defense
counsel did not object to that content but, at the conclusion of
M.D.’s testimony, stated that he was “just making that
continuing objection that [he] made at last sidebar.”
The last witness called by the State that day was A.R., who
worked as a bartender at the restaurant where Jody and M.H.
would meet for lunch on workdays. According to A.R., Jody had
told her that defendant was abusive and had shown A.R. a photo
17
of defendant after she filed for the divorce so A.R. could
recognize him, and let Jody know if he ever came into the
restaurant. She also stated that, when she saw Jody the Friday
before she died, Jody was very upset and told her that she “was
afraid [defendant] was going to kill her because of the
divorce.” Defense counsel did not object.
Throughout the testimony of those witnesses, defendant did
not request a limiting instruction to the jury, despite the
court’s pretrial request for counsel to develop and propose a
limiting instruction for the court’s use. The topic of a
limiting instruction did not come up until the charge
conference.
Over the next seven days of the trial, the State presented
testimony from fourteen witnesses concerning physical and
forensic evidence obtained during the investigation into Jody’s
death. The State called the investigating officers who
responded to the scene the evening of Jody’s fall, the ones who
were responsible for executing consent searches of defendant’s
vehicle and residence, and the ones who later interviewed
defendant. Those officers discussed certain behaviors exhibited
by defendant during their investigation and how his statements
were, at times, inconsistent. One officer who was with
defendant during the search of defendant’s residence, testified
that defendant said to him “you don’t believe this was an
18
accident.” The officer responded that he did “believe an
accident happened,” but that when he in turn asked defendant if
it was, defendant shook his head somewhat and replied “no” as he
put his head down. Another officer who was present also
testified to witnessing that exchange.
Also testifying for the State were members of the rescue
team involved in recovering Jody’s body. The State then
presented the testimony of a land surveyor, who had measured the
height of the cliffs, and an investigator who took measurements
of the area and conducted and videotaped experiments that
involved throwing sandbags matching Jody’s weight off the cliff.
Finally, the State called two forensic pathologists, one of whom
had composed the autopsy report. A summary of their testimony
follows.
Dr. Maryann Clayton, who performed the autopsy on Jody,
initially noted that the majority of Jody’s injuries were to her
head and face, as well as to the right side of her body. At the
time the autopsy was performed, Dr. Clayton determined that the
cause of death was multiple fractures and injuries, but the
manner of death was listed as “pending investigation” on the
original death certificate. Dr. Clayton also noted at that time
that she found it unusual that there were no visible indications
of abrasions, lacerations, or contusions on the back surface of
19
Jody’s body, nor were there any breaks in her arm, pelvic, or
leg bones.
In January 1993, Dr. Clayton concluded that the manner of
death could not be determined and an amendment to the death
certificate was entered. In January of 2006, as part of a
reinvestigation into Jody’s death, Dr. Clayton journeyed for the
first time to the bottom of the cliffs to view the place from
which Jody’s body was recovered. That different perspective led
Dr. Clayton to conclude that Jody’s injuries were “not
consistent with a patient that passively rolls down the cliffs
to the bottom and meets their demise.” Dr. Clayton also noted
that Jody’s injuries were unlike those of other individuals who
had died as a result of falling from a high distance. Dr.
Clayton thus concluded that Jody had to have experienced a
“propulsive force,” meaning that “[s]he had to be propelled out
to be able to reach” the tree that she struck on the way down.
Dr. Clayton then amended the manner of Jody’s death to homicide.
The other forensic pathologist, Dr. Michael Baden, became
involved with the case in 2004 when contacted by the
Prosecutor’s Office during the reinvestigation into Jody’s
death. Dr. Baden noted that the distance from the point where
an individual fell to where the individual landed is an
important factor in determining the manner in which someone
fell. For example, Dr. Baden stated that a person who fell
20
accidentally would be “within a couple of feet of the base” from
which he or she fell while a person who is propelled would be a
“much larger” distance away. With that in mind, Dr. Baden
concluded that Jody’s injuries were “not consistent with an
innocent fall from the point indicated at that lookout area.”
Dr. Baden, like Dr. Clayton, also concluded that the manner of
death was homicide, given that a body from an innocent fall
“could not go out that far” and that Jody “had to have been
propelled from that point” on the cliffs.
Summations occurred on May 24, 2011, and the trial court
instructed the jury that same day. The instruction provided on
the state-of-mind hearsay testimony was negotiated between the
parties and was what the defense had requested. The court
instructed the jury that, “[i]f you find that she made these
statements then you may consider them only for the purpose of
determining her state of mind at the time those statements were
made and for no other reason.”
Defendant was convicted of first-degree purposeful and
knowing murder, N.J.S.A. 2C:11-3(a)(1) and N.J.S.A. 2C:11-
3(a)(2), and was sentenced to life in prison, subject to thirty
years of parole ineligibility.
Defendant appealed, and the Appellate Division reversed his
conviction. The primary issue for the panel was whether the
trial court erred in admitting the hearsay statements from
21
Jody’s friends and therapist. To the panel, Jody’s “expressions
of fear of defendant were neither relevant nor material” and
also were “highly prejudicial and clearly cumulative.”
The panel determined that Jody’s statements were not
relevant because her state of mind was not at issue. According
to the panel, Jody’s “fear of defendant, even if based on their
past history, simply does not make it more or less likely that,
once having gone to the Englewood Cliffs with defendant, while
she was under the influence of alcohol, an accident could not
have occurred.” To that end, the panel noted that “[t]here is
no reason that the victim’s fear of defendant would have made it
less likely that an accident occurred.” Additionally, the panel
did not find a connection between Jody’s state of mind and her
conduct, because, regardless of her fear of defendant, there had
been testimony at trial that she had spent time with defendant
the night before her death. According to the panel, the
prejudicial impact of evidence of Jody’s fear outweighed any
probative value.
The panel reached the same conclusion regarding Teague’s
testimony with “regard to [Jody’s] fear of defendant and any
history of domestic violence.” Those statements were determined
not to meet the standard for relevancy under N.J.R.E. 401
because the panel did not view Jody’s “state of mind, her fear,
and the alleged abuse inflicted by defendant [as] probative on
22
any issue in the case.” The panel further held Jody’s statement
to Teague -- that she had never been to the cliffs and declined
defendant’s invitation to go there with him -- was also
inadmissible.
The panel concluded that those errors were “clearly capable
of producing an unjust result,” R. 2:10-2, reversed defendant’s
conviction, and remanded the matter for retrial.
We granted the State’s petition for certification. We also
granted amicus curiae status to the Attorney General of New
Jersey.
II.
The State argues essentially the same points made to the
Appellate Division. It maintains that evidence of Jody’s state
of mind was relevant to counter the defense that Jody’s death
was accidental and was admissible under hearsay exceptions. The
testimony was limited to only five witnesses and was kept
limited to a proper purpose. The State maintains that admission
of the evidence was not error but rather a proper exercise of
the trial court’s discretionary role as the gatekeeper of
evidence permitted to be introduced at trial. As for the
court’s charge to the jury, the State notes that the defense did
not provide the court with any specific proposal or request with
respect to limiting instructions that would have been more
23
adequate than what the trial court provided. Thus, the State
contends that defendant’s trial was not unjust.
The Attorney General’s arguments support those advanced by
the State, emphasizing that the charge delivered to the jury was
a negotiated one.
The defense urges affirmance of the Appellate Division’s
judgment. It argues that Jody’s state of mind is not relevant
because the State failed to show how Jody’s fear of defendant
makes it more or less likely that defendant intentionally pushed
Jody from the cliff rather than that she had an accidental fall.
To that end, defendant contends that hearsay declarations of a
decedent’s fear of a defendant are generally inadmissible
because the decedent’s state of mind -- that he or she was
fearful of a defendant -- is not relevant to answering the
principal question in a homicide trial: whether the defendant
killed with the requisite state of mind. Testimony regarding
Jody’s state of mind at the time of her death cannot be used,
according to defendant, to infer defendant’s actions on the
night of her death.
Moreover, defendant continues, the statements are highly
prejudicial because “[they] raise[] in the jurors’ minds the
specter of a frightening defendant worthy of the decedent’s
fear.” According to defendant, our case law requires that
courts look to whether the declarant’s state of mind actually
24
proves any matter in the dispute or whether it serves to simply
inflame the prejudice of the jury. Thus, defendant emphasizes
that any testimony regarding Jody’s fear of defendant should
have been regarded as inadmissible hearsay due to its “extreme
potential to inflame the jury.”
III.
A.
In this review of the admission of hearsay testimony about
the decedent’s expressions of fear of her husband uttered
shortly before her death under unusual circumstances, we must
begin with basics.
Evidence must be relevant for it to be admissible, meaning
that 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; see State v. Darby, 174 N.J. 509, 519 (2002)
(explaining that “the inquiry should focus on the logical
connection between the proffered evidence and a fact in issue”
(quotation marks omitted)). In the search for the truth, all
relevant evidence is admissible unless otherwise excluded by the
New Jersey Rules of Evidence. See N.J.R.E. 402.
The Evidence Rules take special care to limit the
admissibility of hearsay testimony. See N.J.R.E. 801(c)
(defining hearsay as “a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in
25
evidence to prove the truth of the matter asserted”).
Generally, hearsay is not admissible, “except as provided by
[New Jersey’s rules of evidence] or by other law.” N.J.R.E.
802.
One exception allowing for the admission of hearsay is the
state-of-mind exception. N.J.R.E. 803(c)(3) provides:
A statement made in good faith of the
declarant’s then existing state of mind,
emotion, sensation or physical condition (such
as intent, plan, motive, design, mental
feeling, pain, or bodily health), but not
including a statement of memory or belief to
prove the fact remembered or believed unless
it relates to the execution, revocation,
identification, or terms of declarant’s will.
When a matter places a declarant’s state of mind in issue, the
Rule allows a declarant’s out-of-court statement to be admitted
for that singular purpose. State v. Benedetto, 120 N.J. 250,
255-56 (1990). The exception is applied carefully; hearsay
testimony is admissible on state of mind when it is relevant and
bears a logical connection to the issues at trial. State v.
McLaughlin, 205 N.J. 185, 189 (2011). Our case law bears out
that cautious approach.
When it comes to an expression of fear by the out-of-court
declarant, the state-of-mind exception is analyzed carefully
concerning its relation to the issues at trial and whether the
hearsay should be permitted for a limited use. The state-of-
mind exception to the hearsay rule does not broadly allow
26
admission of a victim’s recounting of a defendant’s threats.
See, e.g., Benedetto, supra, 120 N.J. at 259-61 (finding that
victim’s statements describing threats were “not relevant to any
issue and not explanatory of how defendant had acted on the
night of [the victim’s death]”); State v. Downey, 206 N.J.
Super. 382, 392 (App. Div. 1986) (noting weight of authority
supporting same).
However, declarations of fear can be admitted “to
establish[] that the decedent was not the aggressor, did not
commit suicide and was not accidently killed,” provided that
those matters satisfy the relevancy requirement. State v.
Machado, 111 N.J. 480, 485 (1988) (citing Downey, supra, 206
N.J. Super. at 392-93); see also State v. Calleia, 206 N.J. 274,
292 (2011) (noting general guidance that “declaration of the
victim’s state of mind . . . should not be used to prove the
defendant’s motivation or conduct” (quotation marks and citation
omitted)). A victim’s state-of-mind hearsay statements are
relevant to assessments of his or her own actions, and thus such
statements can be relevant in the assessment of the truth of
another’s stated reasons for conduct that occurred with that
victim. Calleia, supra, 206 N.J. at 296.
More specifically to the matter at hand, when accident is
proffered as the explanation for a death, the state-of-mind
hearsay exception has been used to admit testimony about a
27
decedent’s prior statements. In United States v. Brown, 490
F.2d 758, 767 (D.C. Cir. 1973), the D.C. Circuit observed that
“courts have developed three rather well-defined categories in
which the need for [state-of-mind evidence] overcomes almost any
possible prejudice”: (1) when a defendant is claiming self-
defense; (2) when a defendant proffers a defense on the ground
that the deceased committed suicide; and, of relevance to the
present appeal, (3) when a defendant claims that there was an
accidental death. Although finding undue prejudice in the
statements in issue before the court, the Brown panel noted that
this type of state-of-mind testimony possesses a “significant
degree of relevance.” Ibid. Indeed, it is generally accepted
that “such statements are admissible where the defense claims
self-defense, suicide, or accidental death because in each of
those situations the statements look to the future in that
decedent’s fear makes unlikely and thus helps to rebut defense
claims about the decedent’s subsequent conduct.” 2 McCormick on
Evidence § 276 at 403-04 (Broun ed., 7th ed. 2013).
Courts in other jurisdictions similarly recognize that a
homicide victim’s prior statements of fear of a defendant are
both relevant and admissible -- through state-of-mind testimony
-- if the defendant in the case is claiming that an accident
occurred. See, e.g., Jones v. United States, 398 A.2d 11, 12-13
(D.C. 1979) (finding state-of-mind testimony to be admissible
28
where defendant claimed victim accidentally fell down stairs);
State v. Richards, 552 N.W.2d 197, 209 (Minn. 1996) (finding
that, because defendant raised accident and/or suicide as
defense to homicide charge, victim’s state of mind was relevant
and trial court did not err in admitting state-of-mind
testimony); State v. Crawford, 472 S.E.2d 920, 927 (N.C. 1996)
(concluding that victim’s state of mind was relevant “to the
issues involved in the instant case, including explaining and
refuting defendant’s claims of self-defense and accident”);
State v. Aesoph, 647 N.W.2d 743, 757 (S.D. 2002) (finding
victim’s state-of-mind testimony was admissible and noting that
“it is well understood that a murder victim’s statements,
regarding fear of the accused, are admissible to rebut a
defendant’s claim of accidental death” (citations omitted));
Clay v. Commonwealth, 546 S.E.2d 728, 730 (Va. 2001)
(determining that trial court committed no abuse of discretion
in admitting victim’s statements regarding fear of accused
because defendant claimed victim’s death was accidental and
because victim’s statements were relevant and probative of
whether accidental nature of death was likely).
This is the first case in which we are squarely in a
position to pass on whether state-of-mind hearsay may be
admitted to rebut a defense that the victim’s death was
accidental. Our case law previously suggested that it was
29
admissible; we now hold that state-of-mind hearsay statements by
a deceased about fear of a defendant, who later advances in his
or her defense in a homicide prosecution a claim that the
victim’s death was accidental, are admissible for the purpose of
proving the declarant’s state of mind under N.J.R.E. 803(c)(3).
Such evidence is relevant when the door is opened by the
defense, as occurred here by defendant’s advancement of accident
as the cause of Jody’s death under unusual circumstances.
Having determined that state-of-mind evidence about the victim
is relevant when an accidental-death theory is advanced by
defendant, we turn to assess whether the trial court abused its
discretion in admitting the evidence.
IV.
A.
Evidentiary rulings made by the trial court are reviewed
under an abuse-of-discretion standard. Hisenaj v. Kuehner, 194
N.J. 6, 12 (2008). To that end, trial courts are granted broad
discretion in making decisions regarding evidentiary matters,
such as whether a piece of evidence is relevant, see Green v.
N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999), and whether a
particular hearsay statement is admissible under an appropriate
exception, see State v. Buda, 195 N.J. 278, 294-95 (2008).
In pretrial argument before the trial court, the defense
conceded that state-of-mind evidence “may be probative” when
30
accident is the defense and focused its attack about
admissibility on the volume of statements that the State sought
to introduce and the good faith of Jody’s statements when made.
Responding to the arguments advanced pretrial, the trial court
assessed the voluntarily reduced list of witnesses from whom the
State sought to elicit the state-of-mind hearsay statements of
the deceased and concluded that they were relevant for the
singular purpose of the jury’s assessment of Jody’s state of
mind and how that related to the issues to be decided in this
homicide case. Specifically, the court determined to allow
testimony from six witnesses (although only five actually
testified) about Jody’s statements expressed shortly before her
death and during the time when she was moving forward with her
divorce action by having it filed and served on defendant. The
court emphasized the statements’ temporal proximity both to the
actions unfolding regarding the divorce and the date of Jody’s
death. The court concluded that the statements were rendered
close enough in time to enhance their probative value and
provide a direct counter to defendant’s narrative that this was
all just an accidental death. Without expressing it precisely
in terms of good faith, the court found the statements
sufficiently reliable to put them before the jury for their
assessment for that limited purpose.
31
The court was specific in what it was allowing: statements
of fear of defendant; statements about defendant’s abusive
conduct toward her, but not specific acts; statements about her
fear of heights; and statements about her intent to continue
with the divorce action she initiated. On the matter of
defendant’s abuse, the court cautioned that it was allowing
limited reference to alleged domestic violence and only for the
“singular purpose” of showing Jody’s state of mind. Thus, it
would allow the jury to weigh those statements against
defendant’s counter narrative that Jody willingly went with
defendant, whom she was divorcing, to an isolated and dangerous
spot where she allegedly accidentally fell to her death. It
bears repeating that defendant asserted that the cliffs were
“their spot,” that he and Jody might have reconciled and not
divorced, and that amorous activities were still, at that time,
possible between them.
Indeed, concerning Teague’s proffered testimony that Jody
told her in a therapy session that she had never gone to the
cliffs with defendant and that she had recently turned down his
request that she go there with him, the court noted the highly
relevant nature of that evidence to paint a picture of the
general relationship between defendant and Jody shortly before
the events of the evening of September 20, 1992 took place.
Plainly regarding that statement as intrinsic to the
32
relationship “mosaic” that both parties to the case would be
presenting, the court determined to allow Jody’s statements, all
of which were close in time to the event of her death.4
Importantly, the court expressly stated that it would not
permit any of the testimony to be used to prove defendant’s
motivation or conduct. The statements could be used to show
only Jody’s state of mind, and that use was deemed permissible
by the court because only her words were available to speak for
her about the likelihood that she acted as defendant asserted.
Based on the argument advanced pretrial, we find no error
in the trial court’s admissibility determination. The testimony
about Jody’s oral statements reflective of her state of mind was
relevant because defendant opened the door to it by arguing that
an accidental death occurred here. Defendant’s argument
pretrial did not more specifically focus on the content of
Jody’s out-of-court state-of-mind statements.
4 We reject the argument that Teague could not testify to
statements made by Jody during her counseling sessions with her
because the defense asserts that the statements were not for the
purpose of medical diagnosis or treatment. As the State
properly argued, these statements were admissible as having been
obtained as part of Teague’s process of diagnosing the root
causes of Jody’s depressive feelings for which she was
administering professional care and treatment to Jody. See
N.J.R.E. 803(c)(4); see also R.S. v. Knighton, 125 N.J. 79, 88
(1991) (observing that, “when the cause of a symptom, pain, or
physical sensation is relevant to diagnosis and treatment,
courts will admit the statement”). We find no abuse of
discretion in the trial court’s admission of Teague’s testimony.
33
On appeal, defendant argues that this state-of-mind
evidence could not possibly assist in the important assessment
of whether defendant killed with the requisite state of mind and
therefore its relevance was overvalued by the trial court. We
reject that argument. It is too limiting a frame for the
admissibility determination we review. Whether Jody would have
gone alone with defendant, willingly, anywhere, let alone to an
isolated place, at night, on the cliffs, where she said she had
never been and would not go when asked before, makes this
evidence highly probative of her state of mind. It was relevant
to disputed, material factual issues about Jody’s state of mind
toward defendant, about her marital relationship, and about her
likely conduct that were ultimately argued in this trial where
the defense was accidental death. In conclusion, we find no
abuse of discretion in the court’s determination not to grant
defendant’s motion to exclude the evidence for the reasons
advanced.
B.
Turning to how the statements were handled at trial when
admitted during the presentation of the testimony, we again view
those statements from the trial court’s vantage point because we
review the court’s admission of hearsay statements under an
abuse-of-discretion standard. See Buda, supra, 195 N.J. at 295(noting that “[o]ur review of these evidentiary determinations
34
likewise is limited to determining whether the trial court’s
decisions . . . constituted an abuse of discretion”).
Therefore, we examine the arguments, and objections, if any,
when made before the trial court as the evidence was presented.
See id. at 294-95.
Notably, the defense raised no objection to the admission
of the statements of M.H., Teague, or M.G. There was not a
single objection to the content of the testimony of those first
three witnesses. Nor did counsel request or suggest any
limiting instruction at the time. Instead, the defense mounted
an objection to the cumulative nature of the two remaining
witnesses when M.D. was about to testify (A.R. followed M.D. and
was the last witness presented by the State on this subject).
The court preliminarily accepted the State’s argument that it
was entitled to bring in testimony from the perspective of
people who interacted with Jody from different parts of her
life, said “let’s see what they say,” and informed defense
counsel that it would permit further objections. No specific
objection came during any point in M.D.’s testimony.
Just prior to A.R.’s testimony, counsel stated he was
continuing his objection based on the cumulative nature of the
testimony as was argued at sidebar, but there was no objection
to any specific part of A.R.’s testimony, just as there had been
none to M.D.’s testimony.
35
We recognize the hesitancy that a trial court might have
with interjecting in this testimony when defense counsel did not
object to any specific piece of the testimony by those witnesses
and who was himself actively questioning the witnesses about
Jody’s statements on cross-examination. Concerning the
cumulative-testimony general objection, we note that M.D.’s
testimony took up only twelve pages and A.R.’s ten pages in the
transcript. That included their direct and cross-examination.
Plainly, these witnesses were the tail of this testimony and we
view it from the vantage point of the trial court as the
testimony unfolded. That day, the State had presented a total
of five witnesses. The first two, M.H. and Teague, were by far
the longest, with M.G. trailing far behind in length. Not until
the short presentations of M.D. and A.R. did the court confront
an objection. We will not substitute our judgment for that of
the trial judge who sat through that day of testimony and
reacted fairly to the parties’ arguments about the remaining two
witnesses. Overall, the objected-to testimony was brief,
covered some different ground, and was not cumulative to the
point of being erroneously admitted. We determine that there
was no abuse of discretion by the trial court.
V.
On appeal, defendant advanced arguments not presented to
the trial court. Defendant argued that the prejudicial content
36
of the phraseology of the utterances by Jody, as testified to by
the witnesses, should have required their exclusion. According
to defendant, their admission rendered the conviction reversible
as a matter of plain error. Defendant also contended that the
trial court’s instructions to the jury on the use of the state-
of-mind evidence were inadequate.
A.
Generally, arguments about the prejudicial nature of
individual statements should have been made to the trial court.
See State v. Robinson, 200 N.J. 1, 19 (2009) (“The jurisdiction
of appellate courts rightly is bounded by the proofs and
objections critically explored on the record before the trial
court by the parties themselves.”). An appellate court is
better positioned to reviewing evidential arguments first
presented to the trial court.
That said, on the merits of defendant’s arguments, the
statements of Jody’s fear of defendant and of her fear of
violence by defendant were plainly prejudicial to defendant
because they conveyed unfavorable information about defendant,
as perceived by Jody. There was testimony repeating numerous
statements by Jody about her fear of defendant, several about
her fear of violence by defendant, and even testimony that she
feared that he would kill her. The quantity and quality of some
of those statements give us pause. The better practice here
37
would have been for the trial court to have limited the amount
and content of the state-of-mind testimony elicited through the
witnesses.
But the admitted statements clearly were relevant for
rebutting defendant’s claim about how he and Jody were
interacting at the point in time that she ended up one evening
on a remote cliff on the Palisades with defendant when she was
pursuing a divorce action against him and was requesting friends
to let her know if he came around places she frequented looking
for her. The hearsay statements were directly relevant and were
of assistance to the jury in its assessment of the likelihood
that Jody would have voluntarily accompanied defendant to the
edge of a cliff for a romantic interlude. This was classic
state-of-mind evidence used to counter an accidental-death
defense to a charge of homicide. Cf. Aesoph, supra, 647 N.W.2d
at 748, 755-57 (finding that state-of-mind hearsay testimony of
defendant’s deceased wife, who was divorcing him and had fled
home, that she feared violence by defendant was admissible in
rebuttal of defendant’s claim of accidental death); see
generally 2 McCormick on Evidence, supra, § 276 at 403-04
(stating that state-of-mind testimony is admissible to rebut
defense of accident because statements rebut defendant’s claims
about decedent’s conduct).
38
The evidence of the five witnesses was not an overriding
part of the State’s presentation. The five witnesses completed
all their testimony in a single day of this long, multi-day
trial. The great bulk of the State’s case, presented over the
many days, focused on the investigation and the forensic
evidence regarding the scientific unlikelihood that Jody could
have accidentally fallen forward off the cliff and landed as she
did with the injuries she sustained. And, the State
painstakingly brought out defendant’s many inconsistent
statements, including his differing versions of how the fall
occurred. The jury was told by the court to use those
statements only for the purpose of understanding Jody’s state of
mind. In reviewing the arguments of the parties, there was no
suggestion made to the jury to use the evidence in any other way
or for any other purpose. Moreover, the State’s summation did
not dwell on Jody’s statements, but rather emphasized the
forensic evidence and defendant’s actions and his inconsistent
statements. The State used the forensic evidence in summation
to show the implausibility that Jody could have simply fallen
from the cliff and landed where her body was found. Thus,
although the testimony included repeated statements by Jody
about her fear of defendant, we do not perceive the content of
the evidence admitted to constitute plain error requiring
reversal of this conviction.
39
Nor do we find plain error in the instruction provided by
the court to the jury, although we have more to say about
instructing the jury in these settings. To the extent that
defendant attacks the adequacy of the trial court’s limiting
instruction on the use of that evidence, we make the following
observations.
First, the defense’s few objections during the eliciting of
the testimony went only to the asserted cumulative nature of the
evidence. At no point during the presentation of the witnesses
did counsel propose instructing the jury at that time on the use
of the testimony.
Second, it bears recalling that when the trial court ruled
pretrial that the state-of-mind evidence would not be excluded,
it instructed counsel to prepare and submit language to properly
instruct the jury about the evidence’s use. None was
forthcoming during the trial apparently.
Third, the issue of a limiting instruction finally came up
during the charge conference. The transcript of the charge
conference demonstrates that the State offered proposed language
on the permissible use of the state-of-mind evidence. The
defense reacted to that proposal, requesting removal of any
proposed use other than to show the victim’s state of mind.
After a pointed exchange between counsel, the court reserved on
the question. The charge ultimately provided was limited to
40
what the defense requested be given. In light of the manner in
which the trial court solicited input on an instruction to the
jury, and engaged with counsel over a proper limiting
instruction, the result here was a negotiated jury charge that
we cannot say caused defendant’s trial to be unjust.
B.
Having addressed the arguments raised in this matter, we
would be remiss were we not to highlight our concern about
dangers associated with use of state-of-mind testimony about a
declarant’s fear of a defendant.
Testimony about a decedent’s stated fear of the defendant
and, more pointedly, a decedent’s stated fear of violence at the
hands of the defendant, is powerful evidence. It clearly
carries prejudicial impact for the defendant but the question is
whether it is unfairly prejudicial. See N.J.R.E. 403. For that
very reason, many courts evaluating the proper use of such
state-of-mind evidence have recognized that, even if the
proposed testimony is admissible as relevant evidence under the
state-of-mind exception to the hearsay rule, it can be subject
to exclusion if its relevance is substantially outweighed by the
danger of unfair prejudice. See State v. Bauer, 598 N.W.2d 352,
367 (Minn. 1999) overruled on other grounds by, State v. McCoy,
682 N.W.2d 153, 160 n.6 (Minn. 2004); Campbell v. United States,
391 A.2d 283, 287 (D.C. App. 1978).
41
We share the concern of courts in sister jurisdictions
about the need to take great care with such perilous evidence.
Care must be taken to guard against undue prejudice and the risk
that the jury may misuse the evidence.
Accordingly, to address our concern about proper use of
state-of-mind hearsay evidence of a homicide victim’s fear of a
defendant, and especially the victim’s statements of fear of
violence by the defendant, we shall impose on trial courts, as
gatekeepers to the admissibility of such evidence, the
obligation to perform an express Rule 403 weighing of evidence
in addition to an assessment for relevance of the victim’s
state-of-mind testimony under Rule 803(c)(3). A weighing for
undue prejudice should follow a review for relevance under Rule
803(c)(3). In addition to the court’s ability to exclude such
evidence, the trial court should consider limiting its amount,
including redacting or sanitizing it as the court determines
appropriate, to balance the interests of the proponent of the
testimony and that of the party against whom it is used. For
example, a court might allow the jury to hear relevant evidence
about the victim’s “fear” of a defendant but might redact more
prejudicial parts of a victim’s statement that she feared death
at the hands of the defendant. The latter part adds little of
relevance and can be unduly prejudicial. The sheer force of the
latter type of statement suggests that because the victim
42
thought the defendant would kill her, he must have done so –-
which is not a permissible inference.
Further, a proper limiting instruction is necessary. “It
is the independent duty of the court to ensure that the jurors
receive accurate instructions on the law as it pertains to the
facts and issues of each case, irrespective of the particular
language suggested by either party.” State v. Reddish, 181 N.J.
553, 613 (2004) (citing State v. Thompson, 59 N.J. 396, 411
(1971)). Indeed, “[i]t is difficult to overstate the importance
of jury instructions” as “[a]ppropriate and proper charges are
essential for a fair trial.” Ibid. (quoting State v. Green, 86
N.J. 281, 287 (1981)); see also State v. Baum, 224 N.J. 147, 159
(2016).
A limiting instruction is required here to guard against
the risk that the jury will consider the victim’s statements of
fear as evidence of the defendant’s intent or actions. See
Calleia, supra, 206 N.J. at 292. Such state-of-mind testimony
may properly be used only for evaluating the victim’s actions or
the likelihood of him or her acting in a certain way. Id. at
296. The evidence is relevant, as it was in this case, for
assessing the likelihood of the victim’s actions when the jury
considers the defense of accidental death proffered in a
homicide prosecution. However, the evidence may not be used as
evidence of the defendant’s actions or intent. Id. at 292.
43
Through a limiting instruction, the jury should be told the
permissible and prohibited purposes of the evidence. Cf. State
v. Cofield, 127 N.J. 328, 341 (1992).
In light of those concerns, the better practice to be
followed, whether requested or not, is to tailor the charge on
how to use the state-of-mind evidence to the facts and to tell
the jury how the evidence may be used and how it may not be
used. For example, the court here could have told the jury that
the state-of-mind evidence -- Jody’s fear of defendant –- was
relevant to the issue of whether Jody voluntarily went to the
edge of a cliff with defendant. State-of-mind evidence bears on
how Jody likely acted on the night of her death. Ultimately,
the inferences concerning how Jody’s state of mind affected her
conduct were for the jury to draw. Moreover, to deflect risk
that the jury might misperceive the limited use to which it may
put such evidence, a limiting instruction should be provided at
the time the evidence is presented, as well as at the close of
the evidence when the jury charge is delivered prior to
deliberations. See State v. Winder, 200 N.J. 231, 256 (2009)
(noting importance of “prompt” limiting instruction at time
evidence is admitted in addition to at time of closing
instruction); State v. Lykes, 192 N.J. 519, 537 (2007) (noting
same). The pointed and immediate direction to the jury as to
the limited permissible use of such evidence will protect
44
defendants while underscoring for the proponent of the testimony
the permissible use for which it is advanced.
VI.
The judgment of the Appellate Division is reversed. The
matter is remanded for consideration of defendant’s unaddressed
appellate arguments.
CHIEF JUSTICE RABNER; JUSTICES ALBIN, FERNANDEZ-VINA and
SOLOMON; and JUDGE CUFF (temporarily assigned) join in JUSTICE
LaVECCHIA’s opinion. JUSTICE PATTERSON did not participate.
45