NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION
DOCKET NO. A-6332-07T4

STATE OF NEW JERSEY,

APPROVED FOR PUBLICATION
Plaintiff-Respondent,
July 16, 2010
v. APPELLATE DIVISION

PAUL A. FOGLIA,

Defendant-Appellant.
______________________________________________________

Submitted May 4, 2010 - Decided July 16, 2010

Before Judges Wefing, Messano and LeWinn.

On appeal from the Superior Court of New

Jersey, Law Division, Sussex County,
Indictment No. 05-11-0464.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Alison Perrone,
Designated Counsel, on the brief).

David J. Weaver, Sussex County Prosecutor,

attorney for respondent (Gregory R. Mueller,
First Assistant Prosecutor, of counsel and
on the brief).

Appellant filed a pro se supplemental brief.

The opinion of the court was delivered by

MESSANO, J.A.D.

Defendant Paul A. Foglia was indicted by the Sussex County

grand jury for the first-degree knowing and/or purposeful murder

of Elizabeth J. Lott, N.J.S.A. 2C:11-3(a)(1) and/or (2); second-

degree burglary, N.J.S.A. 2C:18-2; first-degree felony-murder of

Lott, N.J.S.A. 2C:11-3(a)(3); and third-degree possession of a

weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d). Following

a jury trial, defendant was convicted of knowing and/or

purposeful murder, the weapon offense, and the lesser-included

charge of criminal trespass, N.J.S.A. 2C:18-3. After merging

the weapon offense into the murder conviction, the judge

sentenced defendant to life imprisonment with an 85% period of

parole ineligibility pursuant to the No Early Release Act,

N.J.S.A. 2C:43-7.2, and a concurrent eighteen-month sentence on

the trespass conviction. On appeal, defendant raises the

following issues:

POINT ONE

THE ADMISSION OF EXTENSIVE PRIOR BAD-ACTS

EVIDENCE AND THE COURT'S FAILURE TO PROVIDE
A LIMITING INSTRUCTION DEPRIVED DEFENDANT OF
HIS RIGHT TO A FAIR TRIAL.

POINT TWO

THE TRIAL JUDGE'S REFUSAL TO MORE

SPECIFICALLY INSTRUCT THE JURY THAT A
CONTINUING COURSE OF ILL TREATMENT COULD
PROVIDE THE BASIS FOR A VERDICT OF
PASSION/PROVOCATION MANSLAUGHTER VIOLATED
DEFENDANT OF HIS RIGHT TO A FAIR TRIAL.

POINT THREE

PROSECUTORIAL MISCONDUCT DEPRIVED DEFENDANT

OF HIS RIGHT TO A FAIR TRIAL. (Not Raised
Below)

2 A-6332-07T4
 POINT FOUR

THE COURT ERRED IN EXCUSING JUROR NUMBER

SEVEN AFTER TWO DAYS OF DELIBERATIONS IN
ORDER TO ACCOMMODATE THE JUROR'S VACATION
PLANS. (Not Raised Below)

POINT FIVE

THE TRIAL COURT ABUSED ITS DISCRETION IN

SENTENCING DEFENDANT TO A LIFE TERM BECAUSE
A PROPER ANALYSIS OF THE AGGRAVATING FACTORS
DOES NOT SUPPORT SUCH A SENTENCE.

In a pro se supplemental brief, defendant raises the following

issues for our consideration:

POINT ONE

THE PASSION/PROVOCATION JURY CHARGE

INCORPORATED MISSTATEMENTS OF LAW AND OTHER
ERRORS WHICH PRECLUDED THE JURY FROM
PROPERLY CONSIDERING RELEVANT EVIDENCE
LIKELY TO REDUCE THE OFFENSE OF MURDER TO
MANSLAUGHTER. A LETTER SUBMITTED BY A
DELIBERATING JUROR PRIOR TO SENTENCING
ILLUSTRATES THE DEFECTS OF THE INSTRUCTION
AND THE UNRELIABILITY OF THE VERDICT.

POINT TWO

THE BURGLARY AND FELONY MURDER COUNTS,

PREDICATED ON THE DEFENDANT ENTERING THE
RESIDENCE WITH INTENT TO COMMIT MURDER,
AMOUNTED TO PREJUDICIAL DOUBLE CHARGING FOR
MURDER, WHICH INFECTED BOTH THE PLEA OFFER
AND THE TRIAL. THESE FLAWED COUNTS
ESTABLISHED A DEFECTIVE PLEA OFFER BY THE
STATE. AT TRIAL, THEY IMPERMISSIBLY SHIFTED
THE ATTENTION OF THE JURY TO IRRELEVANT AND
ERRONEOUS LEGAL CONCEPTS INSTEAD OF
CONSIDERING THE MURDER OR
PASSION/PROVOCATION ISSUE.

3 A-6332-07T4
We have considered these arguments in light of the record and

applicable legal standards. We reverse.

I.

At approximately 10:00 p.m. in the evening of September 24,

2004, Virginia "Gina" Liotta returned to the home she shared

with her two young sons and her sixty-seven year old mother,

Elizabeth J. Lott, in Wantage. Lott was a professor of

economics at Pace University in New York and in very poor

health. The house, described by the prosecutor as Lott's "dream

home," was situated on forty acres and quite isolated from other

homes in the area.

Along with her sons, Liotta had been out to dinner at her

uncle's home in Totowa. Upon returning home, the sliding door

to the family room was unlocked as it usually was. Liotta

entered and found her mother "lying . . . on the floor, face

down[,]" surrounded by blood, with a wooden, folding tray table

on top of her. Her thick eyeglasses were broken and lay on the

floor near her body. Liotta called 9-1-1 and emergency medical

personnel arrived at the home.

A neighbor, Jill Shrope, saw the emergency vehicles and

went to Lott's house. She took Liotta's older son, who was six,

back to her house, called defendant at the Fone Booth Bar and

Restaurant (the Fone Booth) where he worked as a bartender, and

4 A-6332-07T4
told him to come to her house. Defendant arrived at Shrope's

house approximately twenty minutes later.

Defendant and Liotta were involved in a tumultuous, twelve-

year romantic relationship, and he was the father of her two

sons. He had recently been hired by the Fone Booth, having

worked in the past as an automobile mechanic, a male dancer, and

a personal trainer. He was in excellent physical condition.

Lott did not care for defendant and limited his visits to

her home to only two days per week so that defendant could see

his sons. The acrimony between defendant and Lott, and the

reasons for it, were the subject of much testimony at trial, and

we examine that evidence in further detail below.

Investigators arrived at the crime scene, processed it, and

secured various items for analysis. There were no signs of

forced entry at the Lott home, nothing appeared to have been

stolen, and there was no evidence of a sexual assault.

Liotta and defendant went to the local police department

with Detective Sergeant Donald Peter of the Sussex County

Prosecutor's Office. Peter called the Fone Booth, and confirmed

that defendant had worked there during the evening, but that he

had left "for a period of time" claiming to be ill. Detective

Virgil Rome, Jr., of the Prosecutor's Office went to the Fone

Booth and secured the videotape from surveillance cameras at the

5 A-6332-07T4
bar parking lot. It revealed that defendant arrived for work at

6:01 p.m., left the premises at 7:51 p.m., and returned at 9:00

p.m., ample time for defendant to have gone to Lott's home, kill

her, and return.

At trial, defendant's fellow employees and a patron at the

bar testified that he did not appear to be ill on the evening of

September 24, but claimed that he was. Defendant left the bar

for some time. When he returned, he was disheveled, sweaty, and

his eyes were bloodshot. Although he apologized for leaving in

the middle of his shift, the manager fired him. Defendant

remained in the bar, however, and ordered some food; he appeared

nervous, was pacing, and repeatedly went to the men's room,

leaving the bar after receiving a phone call.

Investigators questioned defendant after advising him of

his Miranda1 rights. Defendant denied killing Lott, though he

admitted his relationship with her was not good. Defendant also

initially denied leaving the bar at all, but subsequently told

the police that he had left for twenty minutes to get some air.

When confronted with his fellow employees' statements that he

was gone for more than one hour, defendant admitted it might

have been longer than twenty minutes but that "he absolutely

1
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).

6 A-6332-07T4
never left the parking lot" of the Fone Booth. The

investigators collected defendant's shoes and clothing, as well

as DNA samples. Defendant's shoe tested positive for the

presence of Lott's blood. Defendant was arrested on September

29 and charged with her murder.

At trial, the State introduced forensic evidence that the

blood on defendant's shoe resulted from impact splatter and that

defendant had been standing within ten feet of the blood source

at the time. Lott was likely struck with the folding table when

she was in a horizontal position. The medical examiner opined

that Lott died from blunt impact trauma to her skull and brain,

having sustained a skull fracture to her right side that was

likely fatal and caused by significant force.

Alan Casey, a jailhouse informant, testified that defendant

told him while both were incarcerated in the Sussex County jail

that he went to Lott's house with the intention of killing her.

Defendant professed his love for Liotta and the children, and

that he wanted to live with them, but told Casey "the only way

for it to happen was for [Lott] to not be there." Casey claimed

defendant knew Lott would be alone in her home on the night of

September 24 because he had earlier spoken to Liotta by phone.

Indeed, in her testimony, Liotta corroborated a phone

conversation with defendant had occurred earlier in the evening.

7 A-6332-07T4
Defendant told Casey that when he appeared at Lott's home the

night of the murder, and she threatened to call the police, he

"snapped," pushed her to the ground, and hit her with the

folding table.

Defendant testified on his own behalf. It suffices to say

that defendant admitted killing Lott, but claimed he did so in

the heat of passion after she provoked him. As we note below,

defendant's anticipated passion/provocation defense became the

central focus of the trial even before it was asserted through

his testimony.

Defendant testified that he was sick on the night of the

murder and left the Fone Booth, though he claimed it was with

permission. He had spoken to Liotta by phone, and she was

upset. Defendant believed it was due to the constant tension

between her and her mother and he further thought they had

argued that day. Defendant decided to go to Lott's home and

speak to her about their problems.

Defendant saw Lott watching television through the rear

sliding door. He "tapped" on the door and Lott let him in.

However, the conversation deteriorated into a battery of

insults; he called Lott "[a] witch." Defendant claimed Lott

came at him swinging her arms and that she picked up the folding

table and swung it at him, hitting him in the left arm, causing

8 A-6332-07T4
a minor laceration. He grabbed the table from her and hit her

on the head. When she fell to the ground, he hit her again and

left the table on top of her. Defendant claimed that after Lott

hit him with the table, "[he] went into a blackout, a blur." He

was enraged because Lott told him he was "not good enough for

her daughter . . . [his] kids, [his] sons, [and] that if it was

up to her she'd take [his] kids away . . . and . . . [he] would

never see [them] again."

During cross-examination, defendant acknowledged that he

had given a number of different accounts of his activities on

the night of the homicide to law enforcement authorities. He

also admitted that in an attempt to have his bail lowered, he

had supplied a false certification in which he claimed the

police had coerced him into providing a formal statement

immediately after arrest.2 Defendant never indicated in any of

those prior statements, however, that Lott had threatened or hit

him with the folding table.

2
The State withdrew its proffer of the formal post-arrest
statement during pre-trial hearings on defendant's suppression
motion. Defendant attempted to introduce the statement before
testifying, the State objected, and the judge ruled it was
inadmissible. However, during cross-examination, defendant was
asked to review various portions of the statement, and did so
again on re-direct. Ultimately, the judge granted the State's
motion to admit the statement into evidence over defendant's
objection. There is no issue raised on appeal regarding
defendant's formal post-arrest statement.

9 A-6332-07T4
 There was other evidence that inferentially challenged the

credibility of defendant's version of the events in Lott's home.

For example, when he was initially interviewed by the police,

they observed no injury to his arm. Defendant also claimed that

when he returned to the Fone Booth after the homicide, his

frequent trips to the men's room were caused by nausea and his

need to take care of the cut, but surveillance videotape did not

appear to show any injury.

Based upon this evidence, and the additional evidence we

detail below, defendant was convicted of the knowing and

purposeful murder of Lott, possession of a weapon, the table,

with an intent to use it unlawfully against Lott, and criminal

trespass.

II.

Defendant argues that "extensive testimony regarding [his]

prior bad acts" was admitted in violation of N.J.R.E. 404(b),

that even if the evidence was admissible, its probative value

was outweighed by it potential prejudice, see N.J.R.E. 403, and

that the judge failed to provide any instructions to the jury on

the proper use of such testimony. Defendant identifies this

evidence as follows: "the fact that defendant had neglected his

son, had been unfaithful to his girlfriend, had been employed as

a male stripper, had amassed substantial credit card debt, and

10 A-6332-07T4
had forged his son's name on a credit card application." The

evidence at issue was introduced largely through Liotta's

testimony and the cross-examination of defendant.

On direct examination, Liotta described how she met

defendant in 1992 when she was a social worker and he was a

"male dancer." The relationship was "on again, off again," and,

although Liotta loved defendant, "[they] had a lot of problems."

Early in the relationship, she discovered defendant had another

girlfriend. Defendant "would call [her] obsessively" at work,

and call her "bosses" to make sure she was working.

Defendant objected to the evidence at sidebar, specifically

citing Liotta's testimony that defendant was "a male dancer,"

and claimed it was irrelevant. The judge overruled the

objection, finding the testimony to be "proper introductory

testimony to establish the nature of the relationship." The

judge also ruled that the testimony about defendant "calling and

checking" on Liotta was relevant because "it [went] to the issue

[defendant was] raising," presumably the passion/provocation

defense.

Liotta testified that although defendant continued to try

to find other employment, he spent several hours each day

lifting weights, "do[ing] aerobics," and going to the gym.

After the couple's first child was born in 1998, Liotta went to

11 A-6332-07T4
law school and graduated in 2003. The couple continued their

relationship, though they never lived together, and Liotta

became pregnant again in 2003. Lott was upset that Liotta "was

having another child with [defendant]." A second son was born,

and while Liotta believed that defendant "loved his children,"

she testified that "[h]e did not" support them financially.

Liotta began to testify about the first time Lott met

defendant. The couple had just started dating and defendant

arrived for Thanksgiving dinner. When asked about defendant's

dress and attitude at the dinner, defense counsel again

objected.

[Defense counsel]: The objection is the one

that I made . . . before. It's a continued
objection.

The reason that your Honor overruled my

objection was you said that it went to our
defenses. . . . [H]ow he lived[] does not
go to our defense.

. . . .

[Judge]: This is the entire relationship

that existed among these people since they
met each other. . . .

[Defense counsel]: . . . It's not what took

place between the witness and [defendant].
It's how Mrs. Lott reacted to what took
place. Whether she was justified or not is
not relevant. The passion and provocation
goes to the action, not the reason for the
action. . . . It's the expression of . . .
[Lott's] dislike that's relevant. It's not
the reason for it.

12 A-6332-07T4
The prosecutor argued the evidence went "to the motive of . . .

defendant," and demonstrated why Lott "hated [defendant] from

the beginning," something defense counsel asserted in his

opening statement. The judge overruled the objection.

Liotta continued to testify that at the dinner, defendant

"spit" out the food her mother had cooked because it was

prepared with salt. Her mother "was highly insulted." Liotta

went on to describe her mother's disapproval of defendant's

"dancing," and her concern that defendant was "doing other

things, sleeping with people for money, prostituting himself

. . . . [S]he was concerned that he could be in homosexual

relationships."

Liotta described an incident during her second pregnancy

when she was hospitalized and became ill in her room. Defendant

was the only person with her, but left without summoning a

nurse. Liotta "call[ed] for help until three . . . or four in

the morning . . . [and] just laid there throwing up."

Liotta described another incident that also occurred while

she was in the hospital. Defendant was supposed to pick up

their older son at school. When Liotta called him, defendant

told her his car had broken down far from the school. Liotta

became "hysterical," and began calling other parents; she

finally reached one, and when she explained the problem, the

13 A-6332-07T4
parent told her that defendant was there with her, "eating a can

of tuna fish." Liotta told her mother about the incident, and

Lott responded, "this is the kind of thing [defendant] does

. . . ."

Early in the relationship, Lott told her daughter that

defendant was "trying to control [her]" and was "stalking

[her]." In the summer of 2004, there was a verbal altercation

between defendant and Lott. She called defendant a "bum," and

he called her "a fat pig," in front of the couple's son.

In addition to Liotta's testimony, defendant identifies

several exchanges between him and the prosecutor on cross-

examination that produced evidence in violation of N.J.R.E.

404(b). For example, during direct examination, defendant

claimed that Lott did not like him because he "wasn't

professional." On cross-examination, the prosecutor extensively

questioned defendant about his debts, the fact that he had "lost

five jobs in five years as a mechanic," and that he had "never

saved anything . . . ." The prosecutor then asked:

Q. Do you remember applying for a credit

card in your son's name?

A. For Alex -- it was just for a joke.

Q. It was a joke?

A. I never used it. . . .

14 A-6332-07T4
 Q. It was a joke. It was a joke. You do
something that affects your son's credit --

A. I never used [it].

Q. -- and you laugh about it?

A. I didn't. I didn't know any better at

the time. I put his name on it. I got --

Q. Forged a credit card application.

Forged your son's name.

The prosecutor then questioned defendant extensively about his

failure to pay child support, something he had asked Liotta

about at length during her testimony.

The prosecutor also questioned defendant about an incident

involving "a naked woman" being found under his son's crib

shortly before his baptism; about defendant not telling Liotta

that he had been married before; and extensively about an

argument he had with another man who was friendly with Liotta

during "the early part of [their] relationship . . . ." The

prosecutor asked if defendant "assaulted" the other man, which

defendant denied, and whether he hid "in the bushes" before

confronting the man.

The prosecutor asked defendant about his "dancing":

Q. Let's talk about that. You say dancing.

We're not talking about the polka or the
tango or anything?

A. No. I worked in Chippendale's in New

York.

15 A-6332-07T4
 Q. Right. You danced at Feathers, right,
gay club?

A. One time. I didn't like it and I quit.

. . . .

Q. You used to strip for money?

A. No, I worked out in a sola flex machine,

but that was in like 1994.

Q. No. You danced, you took off your

clothes for money. That's what you did for
a living?

A. Oh, yeah.

Asked if Lott "knew about [his] dancing," defendant replied that

she did. The prosecutor then asked:

Q. She knew that you stripped at gay clubs?

A. No. And that was only twice. And I

quit.

Q. You know that she suspected that you

were involved in more conduct than just
taking off your clothes, right?

A. I had no idea.

Q. You didn't know[?]

A. I said I [had] no idea.

Q. She never called you [a] male whore

before?

A. No, she did not.

Over defense counsel's objection, the judge permitted the

prosecutor to inquire about defendant's relationship with Brian

16 A-6332-07T4
Schell. Defendant claimed he was Schell's "personal trainer,"

and that Schell "offered [him] money to do body worshipping."

During a break, the jury sent out a note asking what "body

worshiping" was, and the prosecutor, over defendant's objection

and contrary to the judge's earlier ruling limiting the

testimony, was permitted to continue his questioning of

defendant.

[Prosecutor:] [W]hen I was cross-examining

you before, you had a sexual relationship
with Brian Schell, right? There was a
sexual component to it?

[Defendant:] For him it was sexual, not me.

[Prosecutor:] What does that mean, for him

it was sexual? What are you talking about?

. . . .

[Defendant:] He got a sexual thrill out of

. . . watching me work out or touching my
body.

. . . .

[Prosecutor:] . . . That's what I'm trying

to get at. There was sexual contact between
you and Brian Schell and there was money
exchanged. Right?

Defendant: At the time there was, yes.

The State contends all of this evidence was "relevant to

rebut an unfair and inaccurate attack against the victim, and to

provide a proper framework for the jury to fully evaluate the

events leading up to the murder." It further argues the

17 A-6332-07T4
evidence was "relevant to the issue of passion/provocation

raised by the [d]efendant." According to the State, the

evidence did not fall within the ambit of Rule 404(b)'s

exclusion "of other crimes, wrongs, or acts," because the

testimony only showed that defendant's behavior was "boorish,

indolent and self-indulgent," and not that he had a propensity

to commit murder.

We believe the State's arguments misconstrue our

jurisprudence in this area. The evidence needed to be evaluated

pursuant to Rule 404(b) and most of it should have been excluded

because it was irrelevant. The only close question in our mind

is if reversal is required because the testimony "raise[s] a

reasonable doubt as to whether the [evidence] led the jury to a

verdict it otherwise might not have reached." State v.

Bankston, 63 N.J. 263, 273 (1973) (citing State v. Macon, 57

N.J. 325, 335-36 (1971)).

N.J.R.E. 404(b) provides:

[E]vidence of other crimes, wrongs, or acts

is not admissible to prove the disposition
of a person in order to show that such
person acted in conformity therewith.
[However,] [s]uch evidence may be admitted
for other purposes, such as proof of motive,
opportunity, intent, preparation, plan,
knowledge, identity or absence of mistake or
accident when such matters are relevant to a
material issue in dispute.

[Ibid.]

18 A-6332-07T4
 In State v. Cofield, 127 N.J. 328, 338 (1992), the Court

adopted a four-part test to determine the admissibility of such

evidence.

The Cofield test requires that:

1. The evidence of the other crime must be

admissible as relevant to a material issue;
2. It must be similar in kind and reasonably
close in time to the offense charged;
3. The evidence of the other crime must be
clear and convincing; and
4. The probative value of the evidence must
not be outweighed by its apparent prejudice.

[State v. Williams, 190 N.J. 114, 122 (2007)

(citations omitted).]

Additionally,

even if relevant under N.J.R.E. 404(b), such

evidence must nevertheless survive the
crucible for all relevant evidence:
"relevant 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."

[State v. Lykes, 192 N.J. 519, 534-35 (2007)

(quoting N.J.R.E. 403).]

We accord "great deference to the decision of the trial

[judge]" regarding the admissibility of N.J.R.E. 404(b)

evidence. State v. Barden, 195 N.J. 375, 390 (2008) (citing

Lykes, supra, 192 N.J. at 534). "However, when a trial court

does not analyze the admissibility of other-crimes evidence

19 A-6332-07T4
under Cofield, we may conduct a plenary review to determine its

admissibility." Barden, supra, 195 N.J. at 391 (citing Lykes,

supra, 192 N.J. at 534.)

In order to minimize the "inherent prejudice in the

admission of other-crimes evidence," the judge must "sanitize

the evidence when appropriate" before it is presented to the

jury. Barden, supra, 195 N.J. at 390. After the admission of

such evidence, the judge should clearly instruct the jury on the

prohibited and permitted uses for which it may consider the

evidence, and repeat the instructions at the conclusion of the

case. State v. Blakney, 189 N.J. 88, 93 (2006).

We reject the argument that the testimony was not subject

to analysis under Rule 404(b) because it did not involve a

"crime[], wrong[] or act[]" committed by defendant. The

analytic paradigm we detailed above has been applied in numerous

instances where the other bad conduct evidence did not amount to

a crime, or, to use the language of the Rule's predecessor, a

"civil wrong."3 See State v. Covell, 157 N.J. 554, 564-71 (1999)

(applying the analysis to defendant's statement that he liked

3
See Evid. R. 55 ("[E]vidence that a person committed a crime or
civil wrong on a specified occasion, is inadmissible to prove
his disposition to commit crime or civil wrong as the basis for
an inference that he committed a crime or civil wrong on another
specified occasion but, . . . such evidence is admissible to
prove some other fact in issue including motive, intent, plan,
knowledge, identity, or absence of mistake or accident.").

20 A-6332-07T4
"'young girls'" in a prosecution for luring); State v. Nance,

148 N.J. 376, 388-89 (1997) (applying the analysis to a series

of non-criminal "bad conduct" events between defendant and his

girlfriend); State v. Koskovich, 168 N.J. 448, 483 (2001)

(subjecting the defendant's writings, "[a]lthough not overtly

criminal in nature," to the Cofield analysis"). Moreover, some

of the alleged conduct disclosed through the testimony was

indeed criminal or quasi-criminal in nature, e.g., that

defendant forged an application for a credit card and was a male

prostitute.

We also reject the State's assertion that the Rule "only

prohibits reference to an act that demonstrates a propensity for

a similar action," and that the jury could not have considered

this evidence as demonstrating defendant's propensity to commit

murder. The Rule cannot be read in such a crabbed fashion. The

evil the Rule seeks to avoid is that "[i]f other crime evidence

were to be admitted, the jury might think of a defendant as a

bad person in general and convict . . . ." Biunno, Current N.J.

Rules of Evidence, comment 7 on N.J.R.E. 404 (2010) (citations

omitted); see also Model Jury Charges (Criminal), "Proof of

Uncharged Crimes, Wrongs, or Acts," (June 2007) (advising jury

"not [to] use th[e] evidence to decide that the defendant has a

21 A-6332-07T4
tendency to commit crimes or that (he/she) is a bad person")

(emphasis added).

To be sure, some of the evidence, particularly the early

part of Liotta's testimony describing the acrimony that existed

between her mother and defendant throughout their relationship,

was admissible outside the context of Rule 404(b). Our courts

have distinguished this type of evidence, generally under the

rubric of res gestae, because such evidence of "[t]he

defendant's actions 'serves to paint a complete picture of the

relevant criminal transaction' and therefore [is] admissible."

State v. Long, 173 N.J. 138, 156 (2002) (quoting State v.

Martini, 131 N.J. 176, 242 (1993), cert. denied, 516 U.S. 875,

116 S. Ct. 203, 133 L. Ed. 2d 137 (1995)). The judge correctly

recognized this when he overruled defendant's initial objection,

characterizing what had transpired to that point as "proper

introductory testimony to establish the nature of the

relationship." But that cannot be fairly applied to almost all

that followed. Indeed, when the balance of the testimony is

reviewed under the Cofield test, which we do de novo since the

trial judge never considered the question, we conclude that the

evidence cannot meet the first prong of the analysis, i.e., that

it be "relevant to a material issue . . . ." See Williams,

supra, 190 N.J. at 122 (citations omitted).

22 A-6332-07T4
 The Court has recently considered the issue of relevancy as

it relates to 404(b) evidence.

[T]o be relevant, the other-crimes evidence

must bear on a subject that is at issue at
the trial, for example, an element of the
offense or some other factor such as motive,
opportunity, intent, or plan. In
determining whether 404(b) evidence bears on
a material issue, the Court should consider
whether the matter was projected by the
defense as arguable before trial, raised by
the defense at trial, or was one that the
defense refused to concede. Further, the
other-crimes evidence must be necessary for
the proof of the disputed element. Indeed,
in assessing the fourth prong, courts should
consider whether the matter can be proved
adequately by other evidence.

[State v. P.S., ___ N.J. ___, ___

(2010) (slip op. at 26-27) (citations
omitted).]

The State attempted throughout the trial to argue that the

evidence was relevant for a variety of reasons. First, that it

showed motive, i.e., that defendant knew Lott hated him, that he

believed she was "poisoning" Liotta against him, and he wanted

the victim out of the picture. We agree that Lott's hatred of

defendant and her influence over her daughter were highly

relevant and provided a motive for why defendant killed her, and

by implication, a negation of his claim that Lott provoked him

when he attempted to mitigate the tension between them.

But we fail to see how specific instances of defendant's

conduct towards Liotta while she was in the hosptial, or his

23 A-6332-07T4
financial circumstances, or his job as a male dancer, or

insinuations of prostitution and credit card fraud, were

relevant to his motive for killing Lott. Certainly, the State

introduced the general theme of the bitter animosity between

defendant and Lott through the testimony of Liotta and her

brother Joseph, and, to the extent it did so without references

to specific conduct by defendant, the evidence was proper.

Defendant essentially admitted in his statements to the police,

and certainly in his testimony, that Lott hated him and

attempted to influence her daughter to sever her relationship

with him. Lott may have been well-justified in her evaluation

of defendant's character and in trying to break his hold over

her daughter; but whether Lott's dislike of defendant was

deserved or not was irrelevant to defendant's motive.4

4
We also note that during trial, the State argued on occasion
that defendant had other motives for killing Lott. For example,
in arguing that defendant's "body worshipping" activity with
Schell was admissible, the State claimed that defendant killed
Lott because she called him "a male whore." This epithet, the
State argued, was particularly "sting[ing]" because defendant
had, in fact, engaged in prostitution. In his summation, in
listing all of defendant's motives, the prosecutor claimed
defendant killed Lott "to keep his secret" regarding Schell.
But, there was no evidence that Lott called defendant "a male
whore" to his face, and defendant denied that she ever did.
There was no evidence that Lott knew defendant had engaged in
"sexual contact" with Schell. The State also advanced an
argument in front of the jury, through the questioning of
defendant, and again in summation, that Lott was killed so that
defendant would have access to her estate, even though he was
(continued)

24 A-6332-07T4
 The State also advanced an argument repeatedly at trial, as

it does before us in a single sentence, without any citation,

that the evidence "was relevant to the issue of

passion/provocation raised by the defense." We disagree.

As the Supreme Court has instructed,

Murder is reduced to manslaughter if the

murder is committed in the heat of passion
in response to a reasonable provocation.
N.J.S.A. 2C:11-4b(2). Passion/provocation
manslaughter has four elements: (1)
reasonable and adequate provocation; (2) no
cooling-off time in the period between the
provocation and the slaying; (3) a defendant
who actually was impassioned by the
provocation; and (4) a defendant who did not
cool off before the slaying. The first two
elements of the offense are objective; thus,
if they are supported by the evidence, the
trial court should instruct the jury on
passion/provocation manslaughter, leaving
the determination of the remaining elements
to the jury.

[State v. Josephs, 174 N.J. 44, 103 (2002)

(citations omitted).]

To be sure, "the State must prove beyond a reasonable doubt that

defendant had not killed his victim in the heat of passion

caused by a reasonable provocation[,]" in order to secure a

(continued)
not married to Liotta. In summation, the prosecutor claimed
that defendant "needed some money" and "the reasonable security
that . . . Lott could give him." We believe the State's theory
that Lott was killed for her money was speculative based on the
evidence adduced before the jury, but, more importantly, much of
the testimony that was admitted was not probative of such
motive.

25 A-6332-07T4
murder conviction. State v. Viera, 346 N.J. Super. 198, 212

(App. Div. 2001) (citations omitted), certif. denied, 174 N.J.

38 (2002).

However, the State has not demonstrated how Lott's

animosity toward defendant, well-justified or not, is relevant

to prove an essential element of murder, or disprove an element

of defendant's asserted claim. During the trial, in response to

defendant's objection, the prosecutor claimed the evidence

showed "[t]here were plenty of reasons that [Lott] didn't like

. . . defendant." Because she "had valid reasons to treat . . .

defendant the way she did," the prosecutor argued Lott's

provocative conduct, if it took place as defendant claimed, was

not "unreasonable."

This argument, however, entirely misstates the relevant

inquiry. Regarding the adequacy of the provocation, "[t]he

question . . . essentially amounts to whether loss of self-

control is a reasonable reaction." State v. Mauricio, 117 N.J.

402, 412 (1990). Lott's reason for treating defendant as she

did, or as he claimed she did, was irrelevant because the "test

is purely objective, [and] the provocation must be 'sufficient

to arouse the passions of an ordinary [person] beyond the power

of his [or her] control.'" Ibid. (quoting State v. King, 37

N.J. 285, 301-02 (1962) (in turn quoting State v. Herrmann, 77

26 A-6332-07T4
N.J.L. 534, 535 (E. & A. 1909))). In other words, the fact that

defendant engaged in the "boorish, indolent and self-indulgent"

instances of specific conduct the State adduced, and further

assuming Lott knew about them, we fail to see how that knowledge

is relevant to any materially, disputed fact regarding

defendant's asserted passion/provocation manslaughter defense.

In reality, the State's justification for introducing this

extensive testimony, as acknowledged in its brief, was to "rebut

an inaccurate and unfair attack on the victim." We assume this

means that defendant's testimony regarding the events that

occurred over twelve years, and his conclusion that Lott's

hatred of him was misplaced, was fair game and could be attacked

through specific instances of his bad conduct to show that

Lott's hatred was justified. There is no basis for this in our

evidence rules. See N.J.R.E. 608(a) (excluding "specific

instances of conduct" as proof of a character trait affecting

credibility); see also State v. Darby, 174 N.J. 509, 520 (2002)

(generally noting that other-crime evidence is not admissible

solely to affect credibility).

We conclude that virtually all of the evidence adduced by

the State was inadmissible and should have been excluded.

Although defendant objected in some instances, he did not in

many others. For example, much of the cross-examination of

27 A-6332-07T4
defendant was uninterrupted by objection. Whether reviewed as

plain error or not, see R. 2:10-2, the question is whether the

evidence as a whole "raise[s] a reasonable doubt as to whether

. . . [it] led the jury to a result it otherwise might not have

reached." Bankston, supra, 63 N.J. at 273 (citation omitted).

The State's proofs were substantial. It produced

circumstantial evidence that defendant's claim of going to

Lott's house to ease the tension between them was incredible,

that he told Casey his intention was otherwise, that he

repeatedly lied about his whereabouts that night to the police,

that his physical superiority over Lott made any attack by her

unlikely, and that he had the motive to kill her. The only

material issue in dispute was defendant's state of mind, and in

this regard, defendant's evidence was limited to his testimony,

and, in an ironic way, the same evidence of hatred and distrust

that the State used to prove motive. Because there were no

eyewitnesses to the murder except defendant, the jury's

assessment of his credibility was critical.

The Court has recognized that "'[t]he likelihood of

prejudice is acute when the proffered evidence is proof of a

defendant's uncharged misconduct.'" Barden, supra, 195 N.J. at

394 (quoting State v. Stevens, 115 N.J. 289, 302 (1989)).

Moreover, while we deem the evidence to be irrelevant, and

28 A-6332-07T4
inadmissible in the first instance, the jury was never provided

with any instruction regarding the permissible and impermissible

uses of such other bad acts testimony. Thus, without any

guidance, the jury was free to utilize the testimony for an

impermissible purpose, i.e., that the defendant was a bad

person. Viewed in tandem, we maintain a reasonable doubt that

the repeated admission of irrelevant other bad acts evidence may

have led the jury to a result that it otherwise may not have

reached, and we therefore reverse defendant's conviction.

III.

As a result of our conclusion, we need not address the

issues defendant raises in Points Four and Five. We find the

issue defendant has raised in Point Two of his pro se

supplemental brief to be of insufficient merit to warrant any

further discussion. See R. 2:11-3(e)(2). We address the

remaining points only for guidance in the event of a retrial.

In Point Two and in Point One of his supplemental pro se

brief, defendant contends the judge failed to properly instruct

the jury as to passion/provocation manslaughter. He admits that

the judge utilized the model charge, and, as per his request,

specifically referenced the "twelve-year history between [him]

and Lott." However, he claims the charge "did not sufficiently

explain how the cumulative impact of a series of events . . .

29 A-6332-07T4
could be relevant to the issue of provocation," and emphasized

"the necessity of there being 'a significant physical

confrontation' immediately preceding the killing."

We believe the judge properly utilized the model jury

charge as it then existed. He explained the relevance of the

extended acrimony between defendant and Lott, thus tailoring the

jury instruction to the facts presented. See State v. Robinson,

165 N.J. 32, 42-43 (2000). The judge properly told the jurors

that there needed to be more than words alone to substantiate a

reasonable provocation. See Viera, supra, 346 N.J. Super. at

215 ("[O]rdinarily words alone, no matter how offensive or

insulting, do not constitute adequate provocation to reduce

murder to manslaughter.") (citation omitted).

To the extent defendant claims that the judge erred by

telling the jury there needed to be "a significant physical

confrontation" between defendant and Lott, we note the model

charge uses that phrase. Moreover, the phrase connotes the fact

that defendant's response must be to a reasonable provocation.

See State v. Docaj, 407 N.J. Super. 352, 368-69 (App. Div.)

("Although perhaps sufficient to warrant the instruction, the

evidence of an alleged slap was conceded to be insufficient to

constitute adequate provocation.") (footnote omitted), certif.

denied, 200 N.J. 370 (2009); see also State v. Oglesby, 122 N.J.

30 A-6332-07T4
522, 536 (1991) (finding insufficient provocation to warrant an

instruction on passion/provocation manslaughter when unarmed

victim slapped the defendant).

As defendant notes in his pro se brief, however, the model

charge used by the trial judge contained an error that we

recognized in Docaj, supra, 407 N.J. Super. at 370-71. On

retrial, the charge must comply with our holding.

The State argues that there was no need to provide the

passion/provocation charge because the evidence was insufficient

to support the claim. We do not address the issue because we do

not know what proofs may be adduced during any retrial.

We also note that defendant, in Point Three, alleges that

prosecutorial misconduct in summation requires reversal. We

would not reach the same conclusion. However, the prosecutor's

frequent comments that defendant was "a liar" should not be

repeated.

Reversed.

31 A-6332-07T4