NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2922-14T1
STATE OF NEW JERSEY,
APPROVED FOR PUBLICATION
Plaintiff-Respondent,
December 29, 2016
v. APPELLATE DIVISION
LEE E. MOORER,
Defendant-Appellant.
___________________________________
Submitted October 17, 2016 – Decided December 29, 2016
Before Judges Fisher, Ostrer, and Leone.
On appeal from Superior Court of New Jersey,
Law Division, Salem County, Indictment No.
13-09-0514.
Joseph E. Krakora, Public Defender, attorney
for appellant (Stephen P. Hunter, Assistant
Deputy Public Defender, of counsel and on
the brief).
John T. Lenahan, Salem County Prosecutor,
attorney for respondent (Lisa M. Rastelli,
Assistant Prosecutor, on the brief).
The opinion of the court was delivered by
LEONE, J.A.D.
Defendant appeals his December 17, 2014 judgment of
conviction for third-degree possession of a controlled dangerous
substance (CDS) under N.J.S.A. 2C:35-10(a)(1). He argues the
trial court should have instructed the jury on what he claims is
a lesser-included offense: failure to deliver a CDS to a law
enforcement officer, N.J.S.A. 2C:35-10(c). We affirm. We hold
that "failure to make lawful disposition" under N.J.S.A. 2C:35-
10(c) is not a lesser-included offense of possession of a CDS
under N.J.S.A. 2C:35-10(a). We also hold that under New
Jersey's evidence rule permitting substantive use of consistent
statements to rebut "recent fabrication," N.J.R.E. 803(a)(2),
fabrication is "recent" if it post-dates a prior consistent
statement.
The testimony at trial included the following facts. On
May 31, 2013, Detective Nicholas Bowen received an anonymous tip
stating two females would leave a house on Broad Street in
Salem. He was told they would "retrieve money from the . . .
ATM machine at the Deepwater Credit Union . . . and walk back to
purchase crack cocaine from [a] black male." After receiving
this information, Bowen started surveillance to corroborate the
tip.
Detective Bowen observed two females walk to Deepwater
Credit Union, appear to withdraw money from the ATM, and walk
toward the house on Broad Street. When Bowen called to one of
the women to stop, they began running toward the house. Bowen
chased after them, joined by Patrolman James Endres. When the
2 A-2922-14T1
women approached the door to the Broad Street house, one of them
yelled something to the effect of, "It's the cops. Toss your
shit." Bowen and Endres followed them into the house, where the
officers found defendant, another male, and a female seated on a
couch in the living room.
Bowen observed the other male throw a cigarette pack into
the dining room. Bowen and Endres retrieved the cigarette pack
and discovered a crack pipe inside. They placed the other male
under arrest.
The officers' attention was then drawn to defendant, who
"became fidgety and kept looking around." Both Detective Bowen
and Patrolman Endres testified they saw defendant
surreptitiously take off his hat and throw it behind the couch.
The officers saw what appeared to be a crack rock near
defendant's feet. Defendant was placed under arrest. The
officers then checked near the hat and found two additional
pieces of crack cocaine.
A jury convicted defendant of third-degree possession of
cocaine in violation of N.J.S.A. 2C:35-10(a)(1). On December
12, 2014, the trial court sentenced him to three years of
probation.
Defendant appeals, raising two points:
POINT I - THE FAILURE TO CHARGE A LESSER-
INCLUDED OFFENSE REQUESTED BY THE DEFENSE
3 A-2922-14T1
THAT WAS RATIONALLY BASED IN THE RECORD
DENIED DEFENDANT A FAIR TRIAL. U.S. Const.
Amend. XIV; N.J. Const. Art. I, ¶ 1.
POINT II - THE IMPROPER ADMISSION OF PRIOR
CONSISTENT STATEMENTS OVER DEFENSE OBJECTION
TO BOLSTER THE STATE'S PRIMARY WITNESS
DENIED DEFENDANT A FAIR TRIAL. U.S. Const.
Amend. XIV; N.J. Const. Art. I, ¶ 1.
II.
Defendant argues the trial court erred when it denied his
request to instruct the jury that failure to make a lawful
disposition of a CDS, N.J.S.A. 2C:35-10(c), was a lesser-
included offense of possession of a CDS, N.J.S.A. 2C:35-10(a).
The court stated it did not believe failure to make a lawful
disposition was a lesser-included offense but it would "look at
that charge tonight and see if it fits." Although defendant
again raised the issue on the second day of trial, further
discussion was postponed, no decision was made, and no
instruction was given on the offense of failure to make a lawful
disposition. Nonetheless, no error occurred because we hold
N.J.S.A. 2C:35-10(c) is not a lesser-included offense of
N.J.S.A. 2C:35-10(a).
N.J.S.A. 2C:35-10(a) provides: "It is unlawful for any
person, knowingly or purposely, to obtain, or to possess,
actually or constructively, a controlled dangerous substance or
4 A-2922-14T1
controlled substance analog."1 Defendant contends he was
entitled to an instruction on N.J.S.A. 2C:35-10(c) as a lesser-
included offense. N.J.S.A. 2C:35-10(c) provides:
Any person who knowingly obtains or
possesses a controlled dangerous substance
or controlled substance analog in violation
of subsection a. of this section and who
fails to voluntarily deliver the substance
to the nearest law enforcement officer is
guilty of a disorderly persons offense.
Nothing in this subsection shall be
construed to preclude a prosecution or
conviction for any other offense defined in
this title or any other statute.
"On its face, the statute applies only to those who obtain or
possess controlled dangerous substances in violation of N.J.S.A.
2C:35-10a." State v. Patton, 133 N.J. 389, 398 (1993).
To determine if failure to make a lawful disposition is a
lesser-included offense of possession of a CDS, we look to
N.J.S.A. 2C:1-8(d), which "governs lesser-included offenses."
State v. Maloney, 216 N.J. 91, 106 (2013). N.J.S.A. 2C:1-8(d)
provides:
A defendant may be convicted of an offense
included in an offense charged whether or
not the included offense is an indictable
offense. An offense is so included when:
(1) It is established by proof of
the same or less than all the
facts required to establish the
1
The violation is a third-degree crime if the CDS is "classified
in Schedule I, II, III or IV." N.J.S.A. 2C:35-10(a)(1).
5 A-2922-14T1
commission of the offense
charged; or
(2) It consists of an attempt or
conspiracy to commit the offense
charged or to commit an offense
otherwise included therein; or
(3) It differs from the offense
charged only in the respect that
a less serious injury or risk of
injury to the same person,
property or public interest or a
lesser kind of culpability
suffices to establish its
commission.
In addition, N.J.S.A. 2C:1-8(e) provides: "The court shall
not charge the jury with respect to an included offense unless
there is a rational basis for a verdict convicting the defendant
of the included offense."
[N.J.S.A. 2C:1-8(e)] has been characterized
and construed as requiring not only a
rational basis in the evidence for a jury to
convict the defendant of the included
offense but requiring also a rational basis
in the evidence for a jury to acquit the
defendant of the charged offense before the
court may instruct the jury on an uncharged
offense.
[State v. Brent, 137 N.J. 107, 113-14
(1994).]
Thus, a party seeking a lesser-included offense charge must show
"(1) that the requested charge satisf[ies] the definition of an
included offense set forth in N.J.S.A. 2C:1-8d, and (2) that
there [is] a rational basis in the evidence to support a charge
6 A-2922-14T1
on that included offense." Maloney, supra, 216 N.J. at 107
(quoting State v. Thomas, 187 N.J. 119, 131 (2006)).
N.J.S.A. 2C:35-10(c) is not a lesser-included offense of
N.J.S.A. 2C:35-10(a) under any of the subsections of N.J.S.A.
2C:1-8(d). Subsection (d)(1) does not apply because N.J.S.A.
2C:35-10(c) requires both that the defendant knowingly possessed
a CDS in violation of N.J.S.A. 2C:35-10(a) and that the
defendant failed to deliver that substance to a law enforcement
officer. Thus, N.J.S.A. 2C:35-10(c) requires a second element
not required by N.J.S.A. 2C:35-10(a). Subsection (d)(2) is not
applicable because N.J.S.A. 2C:35-10(c) involves neither
conspiracy nor attempt. Subsection (d)(3) does not apply
because N.J.S.A. 2C:35-10(c) requires a violation of N.J.S.A.
2C:35-10(a) and thus cannot be said to be satisfied by a lesser
injury, risk, or culpability.
Indeed, the legislative history of N.J.S.A. 2C:35-10(c)
shows it was enacted to give prosecutors "a method of
facilitating 'speedy trials' by downgrading cases involving
possession of CDS" under N.J.S.A. 2C:35-10(a). State v.
Gredder, 319 N.J. Super. 420, 425 (App. Div. 1999). In Patton,
our Supreme Court reviewed N.J.S.A. 2C:35-10(c)'s legislative
history. After the 1987 enactment of the Comprehensive Drug
Reform Act of 1986, there was "a dramatic increase in the number
7 A-2922-14T1
of drug arrests" which "exacerbated the pressure on the criminal
courts." Patton, supra, 133 N.J. at 393–94. "[T]he Supreme
Court Task Force on Speedy Trial acknowledged that the caseload
of the criminal-justice system could be reduced significantly by
prosecutors exercising their discretion to refer matters to
municipal court for prosecution as disorderly-persons offenses."
Id. at 394.
The Task Force recommended the Legislature enact a statute
"creating appropriate disorderly persons offenses for possession
of small quantities of certain drugs . . . to permit the use of
prosecutorial discretion in the charging and screening process."
Ibid. (quoting N.J. Supreme Court 1986 Judicial Conference on
Speedy Trial, Report of the Committee on Delay Points and
Problems Affecting Speedy Trial 53 (1986)). In 1988, the
Legislature "implement[ed] th[at] recommendation" by amending
N.J.S.A. 2C:35-10 to add subsection (c) for "use[] only as a
mechanism to downgrade simple possession, an indictable offense,
to a disorderly-persons offense." Id. at 394, 401.
We faced a similar situation in State v. N.A., 355 N.J.
Super. 143 (App. Div. 2002), certif. denied, 175 N.J. 434
(2003). There, we held N.J.S.A. 9:6-3 was not a lesser-included
offense of N.J.S.A. 2C:24-4(a). Id. at 154. The Legislature
enacted N.J.S.A. 2C:24-4(a) to make it a second-degree offense
8 A-2922-14T1
for a person having care of a child to "make [the] child an
abused or neglected child as defined in" N.J.S.A. 9:6-3.
N.J.S.A. 2C:24-4(a). N.J.S.A. 9:6-3 already made it a fourth-
degree crime for such a person to abuse or neglect a child. In
enacting N.J.S.A. 2C:24-4(a), the Legislature's "'intent [wa]s
to incorporate the crime now defined in [N.J.S.A.] 9:6-3 without
substantial change except for the penalty provisions.'" N.A.,
supra, 355 N.J. Super. at 153 (citation omitted). We found "a
legislative intent that both statutes are to be preserved
perhaps to provide prosecutors the option of charging a lesser
offense under appropriate circumstances." Ibid.
"Under these unique circumstances," we concluded in N.A.
that N.J.S.A. 9:6-3 "should not have been charged as a lesser
included offense" of N.J.S.A. 2C:24-4(a). Id. at 154.
"Submission of both offenses would involve the jury in the act
of imposition of sentence." Ibid. We stressed that generally
"a jury's consideration of the evidence is confined to what, if
any, offenses have been committed by the defendant rather than
the penalty which may or must be imposed." Ibid. "The
rationale for this limitation is that sentencing information
fails to help the jury in deciding the issue of guilt, distracts
the jury by confusing the issues to be decided, and invites a
compromise verdict." Ibid. "Submission of both offenses would
9 A-2922-14T1
transform the traditional function of the jury, a consequence
which should not occur lightly. Rather, we elect to defer to
the discretion reposed in the prosecutor regarding the nature
and extent of the charges to be presented to the Grand Jury."
Ibid.
In N.A., we followed the lead of State v. D.V., 348 N.J.
Super. 107 (App. Div. 2002), aff'd o.b., 176 N.J. 338 (2003),
which ruled that a "prosecutor may select between a crime of the
second degree under [N.J.S.A. 2C:24-4(a)] and a fourth degree
offense under [N.J.S.A. 9:6-3]" and that "[t]he selection of the
charge rests in the sound discretion of the prosecutor." Id. at
115-16 (citation omitted). This in turn reflected the "well
'settled rule' that when 'an act violates more than one criminal
statute, the Government may prosecute under either so long as it
does not discriminate against any class of defendants.'" State
v. Kittrell, 145 N.J. 112, 129 (1996) (quoting United States v.
Batchelder, 442 U.S. 114, 123-24, 99 S. Ct. 2198, 2204, 60 L.
Ed. 2d 755, 764-65 (1979)); see D.V., supra, 348 N.J. Super. at
114-15.
In enacting N.J.S.A. 2C:35-10(c), the Legislature similarly
intended "'to incorporate the crime now defined in [N.J.S.A.
2C:35-10(a)] without substantial change except for the penalty
provisions'" in order "to provide prosecutors the option of
10 A-2922-14T1
charging a lesser offense under appropriate circumstances." See
N.A., supra, 355 N.J. Super. at 153 (citation omitted). For
similar reasons, N.J.S.A. 2C:35-10(c) should not be charged as a
lesser-included offense because "[s]ubmission of both offenses
would involve the jury in the act of imposition of sentence."
See id. at 154.
In addition, "'to justify a lesser included offense
instruction, a rational basis must exist in the evidence for a
jury to acquit the defendant of the greater offense as well as
to convict the defendant of the lesser, unindicted offense.'"
State v. Funderburg, 225 N.J. 66, 81 (2016) (citation omitted);
see, e.g., State v. Cagno, 211 N.J. 488, 522 (2012), cert.
denied, __ U.S. __, 133 S. Ct. 877, 184 L. Ed. 2d 687 (2013).
There could never be a rational basis for a jury to convict a
defendant of violating N.J.S.A. 2C:35-10(c) while acquitting him
of violating N.J.S.A. 2C:35-10(a), as a defendant must be "in
violation of subsection a." to violate N.J.S.A. 2C:35-10(c).
Absent such a "rational basis," it is inappropriate to instruct
on N.J.S.A. 2C:35-10(c) as a lesser-included offense of N.J.S.A.
2C:35-10(a).
For the same reasons, the trial court was not required to
instruct the jury on N.J.S.A. 2C:35-10(c) as a related offense.
See Thomas, supra, 187 N.J. at 132-34. "[R]elated offenses are
11 A-2922-14T1
those that 'share a common factual ground, but not a commonality
in statutory elements, with the crimes charged in the
indictment.'" Maloney, supra, 216 N.J. at 107 (quoting Thomas,
supra, 187 N.J. at 132). "A court may instruct on a related
offense when 'the defendant requests or consents to the related
offense charge, and there is a rational basis in the evidence to
sustain the related offense.'" Id. at 108 (quoting Thomas,
supra, 187 N.J. at 133). Here, there was no rational basis for
the jury to convict defendant of failure to make a lawful
disposition but acquit him of possession of a CDS. Cf. id. at
111-14 (Albin, J., dissenting) (asserting the trial court should
have instructed on a related offense so the jury could have
convicted on that charge and acquitted on the greater charge).
Absent such a rational basis, giving an instruction on a related
offense is improper because
a trial court cannot charge a jury on any
offense requested by the defendant or
suggested by the evidence. A trial court
should not "scour the statutes to determine
if there are some uncharged offenses of
which the defendant may be guilty. The
prosecutor has the primary charging
responsibility[.]"
[Thomas, supra, 187 N.J. at 133 (quoting
Brent, supra, 137 N.J. at 118).]
12 A-2922-14T1
III.
Defendant next challenges the admission of Detective
Bowen's prior consistent testimony concerning whether defendant
took off his hat and threw it behind the couch. "'Considerable
latitude is afforded a trial court in determining whether to
admit evidence, and that determination will be reversed only if
it constitutes an abuse of discretion.'" State v. Kuropchak,
221 N.J. 368, 385 (2015) (citation omitted). "Under that
standard, an appellate court should not substitute its own
judgment for that of the trial court, unless 'the trial court's
ruling "was so wide of the mark that a manifest denial of
justice resulted."'" Id. at 385-86 (citations omitted). We
must hew to that standard of review.
Detective Bowen wrote a report the night of the May 31,
2013 arrest. Patrolman Endres did not complete his report until
June 7, 2013. Although Endres's report mentioned that defendant
took off his hat and threw it behind the couch, Bowen's report
did not.
In her opening statement, defense counsel told the jury:
One officer is going to testify consistent
with the report that he authored. A report
that claims that Mr. Moorer took off his
hat, threw it behind the couch.
That officer is going to testify that
Mr. Moorer made certain comments about why
he tossed the hat behind the couch.
13 A-2922-14T1
That officer is going to testify that
he went behind the couch and found a small
quantity of crack cocaine next to the hat
that Mr. Moorer had been wearing. . . .
The other officer, hopefully, will
testify consistent with his observations, as
they were recorded in his report. I'm not
going to blow the trumpet right now.
Instead, I'm going to ask you to pay close
attention.
On direct, Detective Bowen testified that he observed
defendant on the couch "mov[ing] his hat off" and that it "went
directly behind him." Bowen testified defendant looked "like he
was trying to . . . avoid detection." He also testified that he
forgot to mention defendant's discarding the hat in his report,
probably because of the lateness of the hour when he prepared
the report.
Defense counsel cross-examined Bowen repeatedly about the
hat. She asked: if he was trained to record his observations in
his report; if it contained everything he perceived; if his
report contained all the important details; and if the detail
about the hat was important. She marked Bowen's report as an
exhibit, had Bowen read it, and asked if it mentioned defendant
taking off his hat. She questioned Bowen's claim that he forgot
to mention the hat due to the late hour when the report was
prepared. She also asked if Bowen had reviewed his report
"before testifying here today," if he had reviewed "anybody
14 A-2922-14T1
else's report," and if he saw "Patrolman Endres's report after
he wrote it," which Bowen said he might have seen.
On redirect, the prosecutor asked Bowen if he testified on
a prior occasion. When defense counsel objected, the prosecutor
argued that defense counsel had attacked Bowen's credibility
using a prior inconsistent statement and that Bowen "can be
rehabilitated with a prior consistent statement" under N.J.R.E.
803. The trial court overruled the objection, finding that
defense counsel made "a suggestion" that the hat was only
recently mentioned by Bowen, and thus that N.J.R.E. 803(a)(2)
allowed the use of Bowen's prior consistent testimony to rebut
an implication of recent fabrication. Accordingly, Bowen read
from a prior transcript where he had testified: "I noticed that
Mr. Moorer made a quick movement with his hand and . . . took
[his hat] off and put it behind the couch."2
In her closing argument, defense counsel made explicit what
was implicit in her opening and cross-examination. She argued
Detective Bowen and Patrolman Endres were lying about defendant
taking off a hat and throwing it behind the couch. She
emphasized Bowen's training and experience in writing reports,
2
The parties both represent to us that Bowen read from his grand
jury testimony. At trial, however, the prosecutor stated it was
"not a Grand Jury Transcript," it was "a transcript from a prior
proceeding."
15 A-2922-14T1
the importance of accurate reports, and the failure of Bowen's
report "to mention anything about Mr. Moorer wearing a hat or
removing it" as Bowen testified at trial. She argued "there's
no way that . . . Detective Bowen[] would omit those details
because he was tired or [because of the] lateness of the hour.
That's just an excuse." She argued that it was "curious" that
Bowen's report differed from Endres's report and that "the State
tried to have Bowen diffuse that bomb on direct examination."
The trial court properly admitted Bowen's prior testimony
under N.J.R.E. 803(a)(2), which provides:
A statement previously made by a person who
is a witness at a trial or hearing [is not
excluded by the hearsay rule], provided it
would have been admissible if made by the
declarant while testifying and the statement
. . . is consistent with the witness'
testimony and is offered to rebut an express
or implied charge against the witness of
recent fabrication or improper influence or
motive.
"A 'charge' of recent fabrication can be effected through
implication by the cross-examiner[.]" State v. Johnson, 235
N.J. Super. 547, 555 (App. Div.) (quoting State v. King, 115
N.J. Super. 140, 146 (App. Div.), certif. denied, 59 N.J. 268
(1971)), certif. denied, 118 N.J. 214 (1989). Further, such a
charge can be implied in the opening statement and confirmed by
the closing argument.
16 A-2922-14T1
Here, implicitly in her opening statement and cross-
examination, and explicitly in her closing argument, defense
counsel suggested to the jury that Detective Bowen fabricated
his testimony that defendant discarded the hat, contrary to his
report which did not mention defendant discarding the hat.
Moreover, defendant repeatedly implied Detective Bowen's
fabrication was recent. Defense counsel's opening comment that
Detective Bowen "hopefully, will testify consistent with his
observations, as they were recorded in his report," suggested
that if he did not, he would be fabricating a new story on the
witness stand. Defense counsel's cross-examination – asking if
Bowen reviewed his report "before testifying here today,"
reviewed "anybody else's report," and saw "Patrolman Endres'
report after he wrote it" – implied that Bowen might have
reviewed Endres's report in preparation for testifying at trial,
giving rise to a motive to fabricate to mirror Endres's version
of the facts. Defense counsel's closing argument that "the
State tried to have Bowen diffuse [the difference between his
report and Endres's report] on direct examination" implied that
the State had instructed Bowen to give testimony similar to
Endres's report.
Therefore, it was not an abuse of discretion for the trial
court to find an "implied charge against the witness of recent
17 A-2922-14T1
fabrication." N.J.R.E. 803(a)(2). We defer to the trial
court's first-hand observations.
[I]t is the impression the cross-examiner
makes upon the jury in the heat of the trial
rather than what an appellate court would
discern from a coldly analytical study of
the testimony which must control review of
the somewhat discretionary exercise of
judgment made by the trial judge in the
matter.
[Johnson, supra, 235 N.J. Super. at 555-56
(quoting King, supra, 115 N.J. Super. at
146-47).]
Nonetheless, defendant argues defense counsel never claimed
Bowen's testimony was a recent fabrication or "a 'recent
contrivance.'" State v. Gomez, 246 N.J. Super. 209, 223 (App.
Div. 1991) (quoting State v. Sullivan, 24 N.J. 18, 39, cert.
denied, 355 U.S. 840, 78 S. Ct. 52, 2 L. Ed. 2d 51 (1957)).
Defendant argues defense counsel instead merely employed
impeachment using a prior inconsistent statement. "An attack on
a party's credibility through prior inconsistent statements does
not necessarily give plaintiff the right to use a prior
consistent statement to buttress the party's credibility."
Palmisano v. Pear, 306 N.J. Super. 395, 403 (App. Div. 1997).
Here, however, defense counsel's opening, cross-
examination, and closing all implied that Detective Bowen
accurately recorded the events when he wrote his report on the
night of the arrest and that he recently fabricated a new
18 A-2922-14T1
version of events when testifying, or in preparation for
testifying, at trial. See Johnson, supra, 235 N.J. Super. at
555 (admitting a witness's prior statement after the "defense
counsel highlighted several inconsistencies in details between
the prior statement and [the witness's] trial testimony, thus
creating the inference that [he] had not been truthful at
trial").
Such fabrication during trial or in preparation for trial
is certainly "recent" in common parlance. See King, supra, 115
N.J. Super. at 146 (admitting a witness's statement to police
and grand jury testimony where the defense counsel alluded to
the witness's threat a week before trial that she would lie at
the trial).
Moreover, Bowen's prior consistent testimony occurred in a
proceeding prior to trial, and apparently prior to trial
preparation. Where the prior consistent statement was made
before the motive to fabricate arose, the fabrication is
"recent" enough under N.J.R.E. 803(a)(2). "The scope of the
exception encompasses prior consistent statements made by the
witness before the alleged 'improper influence or motive' to
demonstrate that the witness did not change his or her story."
19 A-2922-14T1
Neno v. Clinton, 167 N.J. 573, 580 (2001).3 "[T]hough the common
phrase is 'recent' fabrication or contrivance, the term 'recent'
is misleading. It is not required to be near in point of time
to the trial, but only that the alleged contrivance be closer to
the trial in point of time than the consistent statement." 2
McCormick on Evidence § 47, at 316 n.36 (Broun ed., 2013);
accord Mason v. United States, 53 A.3d 1084, 1090 n.4 (D.C.
2012). Thus, "the word 'recent' means that the prior consistent
statement which may be admitted is one made before the alleged
motive to fabricate arose." Powers v. Cheeley, 771 P.2d 622,
625 (Or. 1989); see People v. Singer, 89 N.E.2d 710, 711 (N.Y.
1949) ("'[R]ecent' as so used, has a relative, not an absolute
meaning"); accord Jones v. State, 889 S.W.2d 706, 716 (Ark.
1994). Thus, we hold fabrication is "recent" if it post-dates a
prior consistent statement.
In that situation, the prior consistent statement has clear
probative value:
Impeachment by charging that the testimony
is a recent fabrication or results from an
improper influence or motive is, as a
general matter, capable of direct and
forceful refutation through introduction of
out-of-court consistent statements that
3
In any event, as we discuss below, we have interpreted the
scope of the exception even more broadly. See State v.
Muhammad, 359 N.J. Super. 361, 387-88 (App. Div.), certif.
denied, 178 N.J. 36 (2003).
20 A-2922-14T1
predate the alleged fabrication, influence,
or motive. A consistent statement that
predates the motive is a square rebuttal of
the charge that the testimony was contrived
as a consequence of that motive.
[Tome v. United States, 513 U.S. 150, 158,
115 S. Ct. 696, 701, 130 L. Ed. 2d 574, 582-
83 (1995).]
In any event, New Jersey has never adopted a strict
temporal requirement for the admission of a prior consistent
statement. "New Jersey's previous rule on the admissibility of
prior consistent statements was contained in Evid. R. 20[.]"
State v. Chew, 150 N.J. 30, 78 (1997), cert. denied, 528 U.S.
1052, 120 S. Ct. 593, 145 L. Ed. 2d 493 (1999). "[T]he
predecessor Rule 20 was interpreted as not to contain a temporal
requirement 'that a party seeking admission of a prior
consistent statement show that the prior statement was made
before any alleged motive to falsify existed on the part of the
declarant.'" Id. at 79 (quoting Johnson, supra, 235 N.J. Super.
at 556).
In 1993, New Jersey adopted N.J.R.E. 803(a)(2), which both
"repeats a portion of N.J Evid. R. 20" and "follows Fed. R.
Evid. 801(d)(1)(B) verbatim." Biunno, Weissbard & Zegas,
Current N.J. Rules of Evidence [hereinafter Biunno], 1991
Supreme Court Committee Comment on N.J.R.E. 803(a) (2016). Our
Supreme Court declined to "resolve whether N.J.R.E. 803(a)(2)
21 A-2922-14T1
contains the temporal requirement of the federal rule." Chew,
supra, 150 N.J. at 81. Subsequently, we reaffirmed that
"[t]here has been no clear determination, either by Rule
amendment or case law, since Chew to impose a mandatory temporal
requirement on N.J.R.E. 803(a)(2)." Muhammad, supra, 359 N.J.
Super. at 388.
Accordingly, it was not an abuse of discretion to admit
Detective Bowen's consistent testimony to help refute the
allegation of recent fabrication. See Chew, supra, 150 N.J. at
80–81 (admitting consistent statements made after some motive to
fabricate arose, but before other motives to fabricate arose);
Muhammad, supra, 359 N.J. Super. at 388–89 (same).
Finally, the admission of the prior statement "did not
constitute prejudicial error." Johnson, supra, 235 N.J. Super.
at 556-57. There was substantial evidence of defendant's guilt
aside from defendant's discarding of the hat. Detective Bowen
and Patrolman Endres discovered defendant inside a house where
they found drugs. When the officers arrived, defendant became
"fidgety." The officers discovered a crack rock near his feet
and two additional pieces of crack cocaine near where he was
sitting.
Moreover, there was other evidence of defendant's
discarding of his hat besides Bowen's testimony. Endres
22 A-2922-14T1
independently testified that defendant "quickly . . . grabbed
[his hat] and moved it back a little bit and then quickly . . .
pushed it. Like just discarded it right behind him." Finding
this suspicious, Endres asked "why he took his hat off," to
which defendant said "he didn't feel like wearing it anymore."
Given this and other evidence, the admission of Bowen's
duplicative prior testimony was not reversible error.
Affirmed.
23 A-2922-14T1
State of New Jersey v. Lee E. Moorer (13-09-0514, Salem County and Statewide)
Court: New Jersey Superior Court Appellate Division
Date filed: 2016-12-29
Citations: 448 N.J. Super. 94, 151 A.3d 109
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