explaining that "a defendant cannot beseech and request the trial court to take a certain course of action, and upon adoption by the court, take his chance on the outcome of the trial, and if unfavorable, then condemn the very procedure he sought and urged, claiming it to be error and prejudicial. Thus, when a defendant asks the court to take his proffered approach and the court does so, we have held that relief will not be forthcoming on a claim of error by that defendant." (citations and internal quotation marks omitted)
How later courts described this case
- explaining that "a defendant cannot beseech and request the trial court to take a certain course of action, and upon adoption by the court, take his chance on the outcome of the trial, and if unfavorable, then condemn the very procedure he sought and urged, claiming it to be error and prejudicial. Thus, when a defendant asks the court to take his proffered approach and the court does so, we have held that relief will not be forthcoming on a claim of error by that defendant." (citations and internal quotation marks omitted)
- holding that "a defendant cannot beseech and request the trial court to take a certain course of action, and upon adoption by the court, take his chance on the outcome of the trial, and if unfavorable, then condemn the very procedure he sought . . . claiming it to be error and prejudicial"
- holding that even in the absence of a request-to-charge, "a trial court has an independent obligation to instruct on lesser-included charges when the facts adduced at trial clearly indicate that a jury could convict on the lesser while acquitting on the greater offense"
- holding that the defendant could not ask the trial court to take a certain course of action and later condemn the very procedure that he sought as prejudicial error
Written by the judges who cited it.
The opinion
Justice VERNIERO,
concurring and dissenting.
I join the Court in reversing defendant’s conviction and concur in all but one narrow aspect of its opinion. Regarding defendant’s retrial, I would permit the State to play the videotaped excerpt of Arthur Thomas’s testimony from defendant’s previous murder trial. In a real sense, that testimony constitutes the entire reason that defendant allegedly attacked Thomas. From that perspective it is highly relevant, highly probative evidence that should be admitted consistent with N.J.R.E. 403 and 404(b).
The tape presents Thomas testifying that he observed defendant waive a gun, that he heard a “bang,” and that he then saw defendant run from the scene. It does not contain the word “murder” or offer any opinion on defendant’s alleged guilt, and it runs less than two minutes in length. Given that the State’s theory concerning defendant’s motive focuses almost completely on the testimony captured on that tape, I find no adequate substitute for playing it before the jury. If defendant’s retrial is to be a search for the truth, then the jury should not be blindfolded but instead should be permitted to see the alleged victim exactly as defendant saw him, namely, as an adverse witness at the prior proceeding.
In view of the foregoing, I agree completely with the succinct analysis articulated by Judge (now Justice) Wallace, who stated on behalf of the unanimous Appellate Division panel in this ease:
*370 Here, the evidence that Thomas testified against defendant at a prior trial was offered to prove an element of the “retaliation against a witness” charge and to establish a motive for the murder charge. The motive evidence was highly relevant in this case. “A wider range of evidence is admissible to establish motive or intent than is permitted in support of other issues.” State v. Crumb, 277 N.J.Super. 311, 317 , 649 A.2d 879 [, 882] (App.Div.1994).[T]he trial court permitted, over defendant’s objection, the playing of a videotaped excerpt of Thomas’s testimony at the prior murder trial which identified defendant as the suspect and cautioned the jury that the evidence was not being admitted for the truth of what Thomas testified, but merely to prove that he was a witness against defendant.
We are satisfied that the trial court did not abuse its discretion in admitting this evidence. Whether under a Rule 404(b) analysis, or a Rule 403 analysis, the evidence was highly relevant and not unduly prejudicial to warrant exclusion. Although not requested to do so, we are convinced that if the court had been requested to undertake a 404(b) analysis, the court would have found the other taimes evidence of Thomas’s testimony against defendant satisfied the four-prong [test under State v. Cofield, 127 N.J. 328, 338 , 605 A.2d 230 [, 235] (1992)].
[State v. Jenkins, 356 N.J.Super. 413, 429-30 , 812 A.2d 1143,1153 (2003).]
In sum, the videotape is critical for the purpose of explaining defendant’s alleged motive. The tape, which we viewed as part of the record, shows Thomas placidly testifying to what he had observed without any trace of emotionalism. I am not convinced that its brief playing, within the context of a whole trial, would be “so inflammatory as to distract the jurors from performing their jobs fairly and in a deliberate fashion.” State v. Koskovich, 168 N.J. 448, 487 , 776 A.2d 144, 166 (2001). To the contrary, excluding it will prevent the jury from considering evidence that is highly probative, highly relevant, and unique. Accordingly, I would permit jurors at defendant’s retrial to see and hear the videotape with an appropriate limiting instruction, and I respectfully dissent from the majority’s contrary conclusion.
For affirming — Chief Justice PORITZ and Justices LONG, LaVECCHIA, ZAZZALI, and ALBIN — 5.
Concurring in part/dissenting in part — Justice VERNIERO— 1.