Opinion
DOCKET NO. A-2916-13T4
03-05-2015
STATE OF NEW JERSEY, Plaintiff-Appellant, v. LAQUESHA CATHCART and TISHA CATHCART, Defendants-Respondents.
Joie Piderit, Assistant Prosecutor, argued the cause for appellant (Andrew C. Carey, Middlesex County Prosecutor, attorney; Ms. Piderit, of counsel and on the brief). Shaun Rai Whitney, Assistant Deputy Public Defender, argued the cause for respondent Laquesha Cathcart (Joseph E. Krakora, Public Defender, attorney; Ms. Whitney, of counsel and on the joint brief). William M. Fetky argued the cause for respondent Tisha Cathcart (Law Offices of William M. Fetky, attorneys; Mr. Fetky, of counsel and on the joint brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz, Espinosa and St. John. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 12-04-0676. Joie Piderit, Assistant Prosecutor, argued the cause for appellant (Andrew C. Carey, Middlesex County Prosecutor, attorney; Ms. Piderit, of counsel and on the brief). Shaun Rai Whitney, Assistant Deputy Public Defender, argued the cause for respondent Laquesha Cathcart (Joseph E. Krakora, Public Defender, attorney; Ms. Whitney, of counsel and on the joint brief). William M. Fetky argued the cause for respondent Tisha Cathcart (Law Offices of William M. Fetky, attorneys; Mr. Fetky, of counsel and on the joint brief). PER CURIAM
We granted leave to the State to appeal from a January 14, 2014 pretrial ruling, which held that oral statements of witnesses and an oral statement attributed to one co-defendant was inadmissible at trial. The ruling also precluded testimony regarding the pregnancy and miscarriage of one of the victims, R.L. The matter was considered by this court after briefs and oral argument addressed the merits of the issues raised on appeal. For the reasons that follow, we affirm in part and reverse in part.
The State contends that it will prove these facts at trial. On December 9, 2011, defendants Tisha Cathcart and Laquesha Cathcart forced their way into the victims' apartment in New Brunswick, in response to a dispute over a parking spot. Defendants assaulted R.L. and her daughter, J.D., in the presence of R.L.'s husband, F.D., and her son. During the course of the assault, R.L.'s son told defendants, "my mom's pregnant." Her daughter also said, "my mom is pregnant," to which one of the defendants replied, "I don't care." After these statements, R.L. claims "they started hitting me more" and "they were kicking me in the stomach." At the time of the assault, R.L. was approximately seven-to-eight weeks pregnant. After the assault, in addition to other injuries, she experienced daily vaginal bleeding and constant abdominal cramping. On December 15, 2011, six days after the assault, R.L. suffered a miscarriage.
On April 25, 2012, a Middlesex County Grand Jury returned six count Indictment No. 12-04-0676 against Tisha Cathcart and Laquesha Cathcart. Counts one and two charged second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); count three charged second-degree burglary, N.J.S.A. 2C:18-2; counts four and five charged first-degree robbery, N.J.S.A. 2C:15-1; count six charged fourth-degree theft by unlawful taking, N.J.S.A. 2C:20-3(a). Prior to trial, the trial court dismissed the first-degree robbery counts (counts four and five). The count relevant to our analysis here is count one, which charged defendants with, purposely or knowingly, attempting to cause or causing serious bodily injury to R.L.
Defendants moved to exclude medical testimony relating to the pregnancy and miscarriage suffered by R.L., which was opposed by the State. The trial court, in a comprehensive oral opinion, granted defendants' motion to preclude testimony regarding the victim's pregnancy and miscarriage. That decision was memorialized by a January 14, 2014 amended order.
In arriving at its decision, the trial court analyzed New Jersey cases and several out-of-state cases under the rubric balancing the probative value against inordinate prejudice of proffered evidence. The court concluded that if evidence of the victim's miscarriage were admitted, there would be "a substantial risk that the jury's attitude towards the death of a fetus would cloud its ability to fairly and impartially weigh the evidence in this case." We note that at oral argument before us, the State acknowledged that it will not seek to prove by expert testimony that the assault caused the miscarriage. However, the State argues the fact that the victim suffered daily vaginal bleeding and constant abdominal cramping after the assault should be admissible as probative of defendants' state of mind.
The trial court considered the State's argument that the specific targeting of the victim's abdomen, after defendants were told of her pregnancy, was highly relevant to the defendants' intention to cause serious bodily injury. The court decided that "the State has other evidence at its disposal with which to demonstrate defendants' purposeful intent that does not carry with it substantial prejudice." The court determined that "the fact that the defendants entered the victim's home, walked up a set of stairs, and then proceeded to brutally assault R.L., despite her family's pleas for them to stop . . . is just as strong evidence of the intent of the defendants." The court then concluded the evidence of the victim's pregnancy and subsequent miscarriage, while relevant, was inadmissible under Evidence Rule 403. It is from that order that the State appeals, arguing:
EVIDENCE THAT DEFENDANTS KNEW THAT THE VICTIM WAS PREGNANT IS RELEVANT AND PROBATIVE EVIDENCE THAT DEFENDANTS INTENDED TO PURPOSELY CAUSE SERIOUS BODILY INJURY.
N.J.R.E. 403 specifically grants a trial court discretion to exclude otherwise admissible evidence under specified circumstances. State v. Buckley, 216 N.J. 249, 261 n.3 (2013). Its decision will be reversed on appeal only on a finding of an abuse of discretion. State v. Rose, 206 N.J. 141, 157 (2011).
"Traditional rules of appellate review require substantial deference to a trial court's evidentiary rulings." State v. Morton, 155 N.J. 383, 453 (1998). See also Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment 1 on N.J.R.E. 403 (2014) ("The burden is clearly on the party urging exclusion of evidence to convince the court that the N.J.R.E. 403 considerations should control."). Our review of a trial judge's purely legal conclusions, however, is plenary. State v. Wolfe, 431 N.J. Super. 356, 360 (App. Div. 2013) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995), certif. denied, 217 N.J. 285 (2014).
N.J.R.E. 403 provides, in pertinent part:
[R]elevant evidence may be excluded if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence.
The factors favoring exclusion must be shown to substantially outweigh the probative value of the contested evidence. See Morton, supra, 155 N.J. at 453. The party challenging inclusion of evidence has a difficult burden under N.J.R.E. 403. "The mere possibility that evidence could be prejudicial does not justify its exclusion." State v. Swint, 328 N.J. Super. 236, 253 (App. Div.), certif. denied, 165 N.J. 492 (2000). Thus, evidence claimed to be prejudicial can only be excluded if its probative value "is so significantly outweighed by [its] inherently inflammatory potential as to have a probable capacity to divert the minds of the jurors from a reasonable and fair evaluation" of the case. State v. Thompson, 59 N.J. 396, 421 (1971). In Morton, supra, for example, when discussing the use of photographs of a murder victim, the Court observed "[t]he presence of blood and gruesome details [in photographs] are not ipso facto grounds for exclusion." Morton, supra, 155 N.J. at 455-56 (citations and quotation marks omitted).
In arriving at the decision to exclude relevant evidence, a court must consider the availability of other evidence that can be used to prove the same point. Biunno, Weissbard & Zegas, supra, comment 3 on N.J.R.E. 403. As the court has instructed:
Probative value is enhanced by the absence of any other evidence that can prove the same point. See State v. Stevens, 115 N.J. 289, 303 (1989). Conversely, relevant evidence loses some of its probative value if there is other non-inflammatory evidence available to prove that point. See Johnson, 120 N.J. 263, 298 (1990); State v. Davis, 116 N.J. 341, 366 (1989).
. . . .
Some types of evidence require a very strong showing of prejudice to justify exclusion. One example is evidence of motive or intent. The Court in State v. Carter, 91 N.J. 86, 106 (1982) (quoting 1 Wharton, Criminal Evidence, P170 at 316 (13th ed. 1972)), stated that "evidence as to motive of a criminal defendant is admissible even though it may be prejudicial in the sense that it will arouse or inflame the jury against the defendant." See also [State v. Rogers, 19 N.J. 218, 228 (1955)] ("[W]henever the motive or intent of the accused is important and material, a somewhat wider range of evidence is permitted in showing such motive or intent than is allowed in the support of other issues.").
[State v. Covell, 157 N.J. 554, 569-70 (1999).]
Here, the State seeks admission of the challenged evidence to prove intent. Our Supreme Court has recognized that courts have generally admitted a wide range of evidence to prove a defendant's motive or intent. State v. Long, 173 N.J. 138, 162-65 (2002). "[E]vidence of motive or intent[] 'require[s] a very strong showing of prejudice to justify exclusion.'" State v. Koskovich, 168 N.J. 448, 486 (2001) (quoting Covell, supra, 157 N.J. at 570). Evidence may be "shrouded with unsavory implications[,] [but that] is no reason for exclusion when it is a significant part of the proof. The unwholesome aspects, authored by defendant [herself], if the evidence is to be believed, [is admissible if] inextricably entwined with the material facts." Long, supra, 173 N.J. at 165 (quoting State v. West, 29 N.J. 327, 335 (1959)) (quotation marks omitted).
In Sanchez, to prove the defendant's purposeful intent, the State sought the admission of photographs depicting close-ups of gunshot wounds on the victim's hand, chest cavity and face. State v. Sanchez, 224 N.J. Super. 231, 249 (App. Div.), certif. denied, 111 N.J. 653 (1988). The defendant objected, arguing the probative value of the evidence was outweighed by its prejudicial effect and was irrelevant as the manner of the victim's death was not disputed. Id. at 249-50. However, the defendant's trial strategy was to admit he killed the victim, but at best he was guilty of some form of manslaughter, not knowing or purposeful murder. Id. at 250. We held the photographs were admissible to show the requisite purpose or knowledge to support the charge of murder as opposed to manslaughter. Ibid.
Here, the testimony of the victim's pregnancy is proffered to show intent to cause serious bodily injury upon R.L., as opposed to the lesser injury of either significant bodily injury or bodily injury. It is helpful to examine the State's burden to show the required mental state for each of these offenses.
To convict each defendant of aggravated assault, be it directly or as an accomplice, the State is required to prove that the defendant attempted to cause serious bodily injury, State v. Mingo, 263 N.J. Super. 296, 305 (App. Div. 1992) (D'Annunzio, J., dissenting), rev'd, 132 N.J. 75 (1993) (adopting the dissenting opinion of Judge D'Annunzio), or acted with the purpose that someone else engage in conduct constituting aggravated assault. State v. Savage, 172 N.J. 374, 393 (2002). N.J.S.A. 2C:11-1(b) defines "[s]erious bodily injury" as "bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ."
In contrast, "[s]ignificant bodily injury" is defined as "bodily injury which creates a temporary loss of the function of any bodily member or organ or temporary loss of any one of the five senses[,]" N.J.S.A. 2C:11-1(d), and "[b]odily injury" is defined as "physical pain, illness or any impairment of physical condition." N.J.S.A. 2C:11-1(a).
An individual is guilty of second-degree aggravated assault if the person "[a]ttempts to cause serious bodily injury to another, or causes injury purposely or knowingly or under circumstances manifesting extreme indifference to the value of human life recklessly causes such injury." N.J.S.A. 2C:12-1(b)(1) (emphasis added). Reckless conduct "manifesting extreme indifference to the value of human life," is significantly more serious than ordinary reckless conduct. See State v. Curtis, 195 N.J. Super. 354, 364, 367 (App. Div. 1984), certif. denied, 99 N.J. 212 (1984). This additional element focuses on the circumstances under which the defendant acted, rather than the defendant's state of mind. Id. at 364-65; see also State v. Saunders, 277 N.J. Super. 322, 326 (App. Div. 1994), certif. denied, 139 N.J. 442 (1995).
The State argues the fact defendants were told of the victim's pregnancy directly proves each defendant's intent to cause serious bodily injury. Moreover, that fact gives meaning to the statement by one of the defendants of "I don't care." Further, the State alleges the attack intensified once defendants learned of the pregnancy. The State contends this evidence is relevant, necessary and highly probative in proving an essential element of the crime: defendants' state of mind, that is, that defendants attempted to cause serious bodily injury to the victim when they shifted the focus of their attack to the victim's vulnerable abdomen upon learning of the pregnancy. The State argues there is no other evidence by which to prove that defendant purposefully targeted the victim's "special vulnerability" as a pregnant woman.
The jury will be required to determine whether each defendant committed a knowing or purposeful second-degree aggravated assault as charged in the count one. The testimony is highly relevant on the issue of each defendant's criminal state of mind and whether, consistent with the State's theory, the nature of the kicks to the victim's abdomen evidenced an attack "performed with such convulsive ferocity that it could only have been the product of a knowing purpose to cause [serious bodily injury]." State v. Micheliche, 220 N.J. Super. 532, 545 (App. Div.), certif. denied, 109 N.J. 40 (1987). The evidence will enable the jury to study the nature and extent of the injury to R.L. and aid in its assessment of each defendant's degree of culpability. No other evidence is available to prove the reason for the intentional targeting of R.L.'s abdomen and the reason why the assault became more ferocious after the defendants learned the victim was pregnant.
In order to prove count one, the State must prove either the requisite state of mind of each defendant or, under circumstances manifesting extreme indifference to the value of human life, each defendant recklessly attempted to cause or caused such serious bodily injury. N.J.S.A. 2C:12-1(b)(1). Therefore, the proofs with regard to knowing or purposeful aggravated assault, the State's theory of the case, and its presentation to the jury may be different than a presentation grounded in the requisite recklessness. The court's ruling under review, if upheld, will result in impeding the State's ability to provide an element of proof gleaned from the aim of the attack and defendants' own words. It is highly probative that, upon learning of the victim's pregnancy, defendants targeted the victim's abdomen with their kicks.
We, therefore, conclude that the statements to the defendants that R.L. is pregnant are highly relevant on the issue of each defendant's criminal state of mind, and, therefore, the court erred in determining the probative value is so significantly outweighed by their inherently inflammatory potential as to have a probable capacity to divert the minds of the jurors from a reasonable and fair evaluation of the basic issue of guilt or innocence.
As to the evidence that R.L. suffered a miscarriage, we do not reach the same conclusion. Although the State acknowledged that it will not seek to prove by expert testimony that the assault caused the miscarriage, it argues that evidence of the miscarriage is sufficiently probative of defendants' intent to cause serious bodily injury to overcome its inherent prejudice. We disagree and affirm the trial judge's decision to exclude that evidence. Evidence of the victim's pregnancy, along with the other facts presented, sufficiently allows the State to prove defendants' intent without including evidence which is unnecessarily prejudicial.
Finally, although we have concluded that evidence of the victim's pregnancy should not be excluded under N.J.R.E. 403, we need not examine the threshold issue of the admissibility of the "I don't care" statement as an exception to the hearsay rule. The State may generally admit out-of-court statements of a defendant as a statement of a party opponent, N.J.R.E. 803(b)(1); Covell, supra, 157 N.J. at 572. Generally, subject to certain considerations not relevant here, and subject to N.J.R.E. 104(c), the State may introduce at a criminal trial any relevant statement made by a defendant. Further, under the co- conspirator exception to the hearsay rule, the statement may be admissible. N.J.R.E. 803(b)(5).
The record before us does not demonstrate which defendant purportedly made the "I don't care" statement. Should the State decide to offer this statement at trial, it will have to demonstrate to the court's satisfaction at a N.J.R.E. 104 hearing the admissibility of the statement. Further, we leave to the trial court the decision whether to admit the statement of a co-defendant who does not testify at a joint trial.
Affirmed in part, reversed and remanded in part. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION