The Law Division judge heard arguments on defendant’s motion and denied defendant’s request. The judge remarked that the relevant “delay” was from the date of the incident to the date of indictment, not from the date of indictment to the date of trial. As for the proper test to apply, the judge cited to State v. Cappadona, 127 N.J. Super. 555 (App. Div.), certif. denied, 65 N.J. 574, cert. denied, 419 U.S. 1034 (1974). The judge acknowledged Cappadona was not directly on point; it dealt with the delay between indictment and trial. Still, the judge observed that the four factors Cappadona deemed relevant � length of delay, reason for delay, defendant’s assertion of his right and the prejudice from the delay � might be relevant to defendant Townsend’s situation.

The judge then discussed State v. Alexander, 310 N.J. Super. 348 (App. Div.), certif. denied, 156 N.J. 408 (1998). In that case, the defendant faced many charges, including attempted murder and armed robbery. This pre-indictment delay was nearly two-and-one-half years. It was observed that the Sixth Amendment speedy trial clause does not apply to pre-indictment delay because the Sixth Amendment is not triggered until arrest or indictment. Alexander found the validity of a pre-indictment delay is better measured by the due process clauses of the federal and state constitutions.

Alexander makes several important points. First, pre-indictment delays are not subject to the Sixth Amendment speedy trial standards, since those are only implicated post-arrest. Second, the relevant test is a two-pronged analysis from State v. Aguirre, 287 N.J. Super. 128, 132 (App. Div.), certif. denied, 144 N.J. 585 (1996), which requires a defendant to show (1) there was no legitimate reason for the delay and (2) defendant was prejudiced. Third, assuming defendant had established the first prong, there was no actual prejudice established in a two-year delay. One witness’ death would not have affected an undelayed trial and there was no real proof that the telephone records, if available, would have supported defendant’s theory.

The judge essentially applied Alexander. His hesitation was rather on the first prong of whether there was a legitimate reason for the delay. As the judge phrased it, his concern was “whether [the State] was irresponsible or if it contributed to the delay in an unreasonable sense.” On this issue the judge concluded that an indictment could have been returned against Townsend in 1981. Still, “the evidence at that time was such that the [State] could not reasonably anticipate conviction given the evidence it had.”

The judge observed that two of the state’s main witnesses, Jason and Brian Williams, were 7 and 3, respectively, when the crime occurred. In the judge’s view, these witnesses “are now in a much better position to verbalize what they did and did not experience.” The judge also said “the so-called dying declaration was such in 1981 as to permit a reasonably informed determination to be made by the prosecutor then, that it would be unwise for the prosecutor to move the case with the state of the evidence that then existed . . . that declaration converted what would otherwise be a case more ripe for conviction to one less ripe for conviction, although in any circumstance, might have been sufficient to produce an indictment now.” The judge recognized that there was no statute of limitations for murder.

It must be determined (1) whether the trial judge used the proper test for a claim of undue delay between the criminal event and the leveling of the charges; and (2) whether the facts supported denial of the motion. The trial judge used the right test and applied it correctly.

On the first issue, case law adequately supports Alexander as the proper test for a delay between the criminal event and arrest. The other two possible tests � the Cappadona four-part test and R. 3:25-3 � do not fit the mold. The federal standards that form the basis of Cappadona‘s four-part test do not deal with pre-arrest delays. Rule 3:25-3, which requires a judge to ask whether “there is an unreasonable delay in presenting the charge to a grand jury or in filing an accusation against a defendant who has been held to answer upon a complaint,” does not work either. The language of R. 3:25-3 suggests it applies to delays after the defendant is detained. It applies to “an unreasonable delay in presenting the charge to a grand jury or in filing an accusation against a defendant who has been held to answer upon a complaint[.]” Id. The use of “ defendant” implies the person has already been arrested and charged, and the use of “has been held” suggests the delay occurred while the person was in custody.

As noted, the trial judge turned his decision on the first prong. The state contended it had more mature witnesses. The state said it now had the testimony of a woman, then age 13 in 1981, who would not testify because her mother would forbid her cooperation. The witness stated she saw defendant in his truck and he crashed through a gate, weakening the defense theory that Williams was killed by another vehicle, not a truck, coming through the gate. The state also said it now had the helpful statement of a neighbor whose residence adjoined Williams’ residence. There also were additional statements of relatives detailing prior acts of domestic violence that would show motive under N.J.R.E. 404(b). The state demonstrated that this additional evidence was not a mere refinement of its available 1981 evidence, but included both additional relevant witnesses and corroborative testimony. To the state “the investigation needed to remain open to develop other witnesses” in part because “everyone was so petrified of defendant.”

The state further argues persuasively that there was no proven actual prejudice to defendant, but only vague assertions of lost witnesses, faded memories and misplaced documents. Defendant argues there were lost witnesses, including police officers and a nurse, who might have heard Williams say she was hit by a car. Defendant also claimed other lost witnesses could have testified about the relationship between himself and Williams. Defendant also lamented the lack of N.J.R.E. 404(b) rebuttal evidence. Still, defendant did not explain persuasively why the state’s conduct lacked legitimate justification, especially when this was a murder case.

Defendant’s claims of actual prejudice with regard to the inability to call helpful witnesses are vague, if not fanciful and very speculative. As for Alexander‘s first prong, the state notes that no New Jersey court has explained whether “legitimate reason for delay” requires that the defendant show the delay was intentional, a strategic maneuver. The state argues it could still satisfy the first prong if it were so defined. The state asserts convincingly that although it could have indicted in 1981, it could not reasonably have anticipated a conviction.

There might be extreme cases where due process could bar a long-delayed murder prosecution. For example, if a defendant showed that the state had sufficient evidence to indict for murder, but did not indict until the potential defendant’s main exculpatory witness died, due process might be triggered. In such a situation, the defense could be entirely eviscerated by the passage of time.

IV. Defendant asserts the judge erred by admitting testimony concerning the alleged prior instances of violence by defendant directed against the victim. The scope of review of a trial judge’s determination on the admissibility of other “bad conduct” evidence is narrow and deferential, limited to an “abuse of discretion” standard.

In State v. Cofield, 127 N.J. 328, 338 (1992), the Supreme Court placed additional constraints on the admission of character evidence against an accused. Such evidence (1) must be relevant to a material issue that is genuinely disputed; (2) the other conduct must be similar in kind to that which is charged currently and must have occurred reasonably close in time to the events at issue in the criminal trial; (3) evidence of the other conduct must be clear and convincing; and (4) its probative value must not be outweighed by prejudice to the defendant.

At the time of Williams’ death, Jason was 7, Brian was 3, and Freddie was 15. At that time, Brian and Jason lived with Williams and defendant (also nicknamed “Poncho”) at 64 Bond Street in Trenton. Each said they saw defendant beat Williams on various earlier occasions. Jason and Brian testified that they saw the beating incident they said led to Williams’ death.

The bad-acts evidence was “highly probative of several issues in dispute � defendant’s intent or purpose, his state of mind, his motive, the absence of mistake or accident. … ” The state properly relies on State v. Long, 173 N.J. 138, 162 (2002), for the proposition that evidence of a defendant’s prior assaults on his victim is so highly probative of these issues that it is seldom excluded because of undue prejudice.

Courts have frequently allowed other-crimes evidence as a permissible evidence of motive, intent and state of mind.

V. N.J.R.E. 804(b)(2) authorizes the introduction of a “dying declaration” as admissible hearsay.

In this case, the testimony on the dying declaration came from Detective Pogorzelski. He started with the Trenton Police Department in April 1968 and retired in June 1994. When he arrived at the hospital, a doctor informed him that “it would be very hard for [Williams] to understand any of [Detective Pogorzelski's] questions, that because of her being in an intoxicated condition and being under medication.” The detective approached Williams as she lay in the intensive-care unit. He “told her she was in a very bad condition, things did not look good for her, and that she would have to talk to me.” Williams “just laid there and kind of moaned.”

Detective Pogorzelski then asked Williams if defendant beat her. She moved her head from side-to-side. The officer interpreted this as a “no.” When he asked her if she was hit by a truck, she made the same motion. When he asked her if she was hit by a car, “she went up and down with her head, [a] kind of motion telling me yes, that she was hit by a car.” She could not verbalize her answers; she then became unresponsive. Detective Pogorzelski’s testimony was consistent with his testimony at a pretrial evidentiary hearing on the declaration’s admissibility.

During the evidentiary hearings, the parties debated whether Williams’ responses to Detective Pogorzelski satisfied N.J.R.E. 804(b)(2). Defendant argued that Williams was aware of her impending death, and that her responses were voluntary and in good faith. Defendant said that since Williams knew to shake her head “no” to two questions and then nodded a “yes” to another question she understood the questions asked of her. The state argued Williams did not realize she was dying, and that her answers lacked credibility because she feared further abuse.

The judge observed this was an unusual situation because the defense sought to use a dying declaration as exculpatory evidence, not as incriminating evidence.

Defendant’s counsel expressed concern about the admission of the BWS testimony in conjunction with the dying declaration. After an N.J.R.E. 104 hearing on the testimony proposed from Dr. Kabus, the state’s BWS expert, and Dr. Coughlin, the defendant’s BWS expert, the judge ruled that if defendant wanted to introduce the dying declaration, he would allow the state to introduce BWS testimony.

During trial, but before Dr. Kabus testified, defense counsel requested an offer of proof from the state as to what the expert would say. Even though under the earlier ruling any BWS testimony was admissible, both the judge and the prosecutor began to express reservations about the admissibility of the BWS evidence where Dr. Kabus could not conclude Williams actually had the BWS syndrome.

The state said it would introduce the generalities of BWS, without having Dr. Kabus opine as to Mrs. Williams herself. Defense counsel objected because the expert testimony has to have some relationship to this case.

The trial judge adopted an equitable balancing justification for admitting the BWS testimony, despite the fact that Dr. Kabus could not say Williams had a BWS diagnosis. The first justification was that he was previously indulgent to the defense when he admitted the dying declaration testimony. A second justification was that it was useful “general information” evidence, and thus helpful to the trier of fact under N.J.R.E. 702. A third was that this testimony combined with N.J.R.E. 404(b) testimony on defendant’s prior acts of abuse to give added context to the dying declaration.

After this ruling, Dr. Kabus and the defense’s expert, Dr. Coughlin, testified about BWS. Dr. Kabus was qualified as an expert “in battered women and [BWS]” and “ to testify with respect to [BWS] as an adjunct to or part of Post Traumatic Stress Disorder.” Both experts distinguished between a battered woman and a woman with BWS. To have BWS, a woman must exhibit five of eight BWS characteristics. But a woman who does not meet five of the eight BWS characteristics might still be “battered.” Dr. Kabus agreed that the difference is a matter of degree. Dr. Coughlin did not fully agree.

Dr. Kabus testified that a common trait of women with BWS � lying to protect the abuser for fear of future abuse � can also be present in women who are battered but who do not have BWS. By contrast, Dr. Coughlin said that just because a woman is battered does not mean an expert can predict what her behavior will be. Instead, “‘predict behavior’ has more to do with me for what kind of treatment I need to provide for the person, what’s likely to happen in our treatment, what supports do I need to provide for the person.” Although Dr. Coughlin agreed there are commonalities in behavior between battered women and women with BWS, he said there was no extant research to support the presence of lying as a protective device in both BWS women and non-BWS battered women. While clinically he had seen both BWS women and non-BWS battered women who lie to protect abusers, no research supported this as a characteristic in both.

Aside from the various justifications used before and at trial for admission of the expert testimony, all expert testimony must meet the requirements of N.J.R.E. 702 and 703. The judge relied on N.J.R.E. 702 to say that the BWS testimony would be helpful to the trier of fact. That may have been so, but this does not end the inquiry. Expert testimony must satisfy N.J.R.E. 703, which states:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

The judge rationalized the expert BWS testimony as “general information” evidence akin to a detective’s expert testimony on drug distribution. But ultimately, Dr. Kabus was asked about her opinions on the characteristics of non-BWS battered women.

Specifically, the state sought to elicit Dr. Kabus’ opinion that non-BWS battered women, like women with BWS, are likely to lie to protect their abusers. Of course, the state wanted this testimony to discredit Williams’ dying declaration. Within that opinion are several sub-opinions, including the opinions that non-BWS battered women are a discrete analytical category, that characteristics of non-BWS battered women resemble the characteristics of women with BWS, and that lying to protect abusers is one overlapping characteristic. All of these statements are not just “general information” but discrete expert opinions. As such, they are subject to N.J.R.E. 703. Under N.J.R.E. 703, they had to be based on sufficient facts or data, either made known to the expert before trial or of the type reasonably relied on in the field. The state did not make such a demonstration. The state did not use Dr. Kabus’ testimony for general information, but for her specific opinion that non-BWS battered women act like women with BWS, and a common characteristic of both is that they lie to protect abusers.

The admission of the victim’s dying declaration was not sufficient to justify admission of the BWS expert testimony. Nowhere in the rules of evidence does admissibility hinge on the judge’s prior liberality in admitting evidence favorable to the opposing side. For evidence to be admissible, it must be relevant and not excluded by other rules. Prior liberality is not an exception to the rule of admissibility, especially in a criminal case.

In this case, the BWS testimony should have been relevant and should have satisfied N.J.R.E. 703 standards. Dr. Kabus’ statements that non-BWS battered women exhibit similar characteristics to women with BWS, such as lying to protect abusers, were net opinions. Their admission was potentially highly prejudicial, tending to discredit the linchpin of the defense case. While Dr. Coughlin did testify that no research has demonstrated commonality between non-BWS battered women and women with BWS, this does not cure or offset the inevitable prejudice occasioned by Dr. Kabus’ testimony. The rules choose that exclusion, not cross-examination, is the safeguard against prejudice. The state had other ways to attack the dying declaration. There was the suggestion that Williams was both intoxicated and highly medicated at the time of the statement. The state could have pursued these grounds, as was its right under N.J.R.E. 806 (attacking and supporting credibility of hearsay declarant). Dr. Kobus’ testimony did not satisfy the grounds for admissibility. The jury cannot be permitted to draw an expert conclusion from evidence where the state’s expert could not.

Defendant’s related argument on the lack of a BWS expert-testimony jury instruction satisfies the plain-error standard, R. 2:10-2. This provides an additional basis to reverse. The judge gave the standard charge for experts. There was no mention of the special characteristics of BWS testimony in the jury charge. Because defense counsel did not submit a request to charge, R. 1:8-7, or otherwise object to the charge, this alleged error requires reversal only if clearly capable of producing an unjust result, R. 1:7-2; R. 2:10-2, which it did.

If it was reversible error in State v. Ellis, 280 N.J. Super. 533, 546-47 (App. Div. 1995), not to give a jury instruction on BWS explaining that testimony’s limited use where the subject was diagnosed with BWS, there is stronger reason to require a special instruction in this case. Here, the trial judge said he would admit the evidence only as “general information” and wanted to avoid jury speculation that Williams had BWS. Under the teaching of Ellis, a specific jury instruction was necessary at a minimum to explain the limited purposes for which the state could use the BWS testimony and to point out that Williams was not diagnosed with BWS. In its brief, the state suggests the requirement of a jury instruction depends on the alternative factual context of cases in which BWS evidence is used. However, the thrust of the BWS case authority is that this expert testimony is “limited use” testimony, and that point must be made clear to the jury. Otherwise, there is substantial potential for misuse.

Reversed.

� Digested by Steven P. Bann

[The slip opinion is 52 pages long.]

For appellant � Jay L. Wilensky, Assistant Deputy Public Defender (Yvonne Smith Segars, Public Defender). For respondent � Debra A. Owens, Deputy Attorney General (Peter C. Harvey, Attorney General).