                                                      SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized).

                                   State v. Stephen F. Scharf (A-46-14) (074922)

Argued February 2, 2016 -- Decided July 18, 2016

LaVECCHIA, J., writing for a unanimous Court.

         In this appeal, the Court addresses whether it was error for the trial court to admit hearsay statements from
the victim’s friends and her therapist, including statements that the victim repeatedly told the witnesses of her fear of
defendant. The Court further considers whether the evidence, cumulatively, constituted an abuse of the trial court’s
discretion that caused defendant’s trial to be unjust.

          In 2011, defendant was convicted of murdering his wife Jody, who fell off a cliff at the Palisades one
evening in 1992, shortly after filing for divorce from defendant. Defendant put forward a defense of accident. In
preparation for trial, the State’s evidence included oral statements made by Jody to her friends and therapist, which
were proposed for admission as going to Jody’s state of mind. The State sought to use the evidence to rebut
defendant’s narrative that Jody’s death was an unfortunate accident. The defense moved to exclude the hearsay
statements. Although, the defense acknowledged that state-of-mind evidence may become probative where accident
is the defense, counsel stressed the volume of potential state-of-mind evidence (the State proposed statements from
twenty-six witnesses). In response, the State clarified its intent to rely on Jody’s statements to only six individuals.

          The trial court denied defendant’s motions. The court found Jody’s state of mind to be “highly probative,”
and determined that her statements would provide evidence to “directly counter” defendant’s assertion that the fall
was accidental. The court emphasized that the statements would be admitted solely to show Jody’s state of mind,
and directed the attorneys to prepare limiting instructions to make that clear. Concerning the proposed testimony by
Jody’s therapist, the court found that one of the statements -- namely, that Jody had refused defendant’s invitation to
the cliffs and that she had never been there before -- was admissible under N.J.R.E. 803(c)(3). The court allowed
the admission of other statements made to the therapist as statements made for the purpose of medical diagnosis and
treatment of depression. Again, the court asked the attorneys to prepare an appropriate limiting instruction.

          On the third day of defendant’s trial, the State called five witnesses to testify to the statements that are at
issue in this appeal. The witnesses claimed that Jody repeatedly told them of her fear of defendant, particularly after
she had served him with a divorce complaint, and told them that she had declined defendant’s request to go to the
Palisades cliffs with him shortly before her death. The bulk of the testimony came from the first two witnesses,
Jody’s friend and her therapist, and the first three witnesses testified without objection from defense counsel.
Defense counsel registered an objection when the fourth witness was called, claiming that the testimony was
cumulative. The court allowed the testimony to proceed, and the remaining two witnesses were brief. Throughout
the testimony of those witnesses, defendant did not request a limiting instruction.

         Over the next seven days of trial, the State presented testimony from fourteen witnesses concerning
physical and forensic evidence obtained during the investigation into Jody’s death. The evidence included
testimony that Jody’s injuries were “not consistent with an innocent fall,” and that Jody “had to have been propelled
from that point” on the cliffs given that a body from an innocent fall “could not go out that far.”

          Following summations, the trial court instructed the jury. The instruction provided on the state-of-mind
hearsay testimony was negotiated between the parties and was what the defense had requested. The court instructed
the jury that, “[i]f you find that she made these statements then you may consider them only for the purpose of
determining her state of mind at the time those statements were made and for no other reason.” Defendant was
convicted of first-degree purposeful and knowing murder, N.J.S.A. 2C:11-3(a)(1) and N.J.S.A. 2C:11-3(a)(2).

         An appellate panel reversed the conviction, concluding that the trial court erred in admitting the statements.
To the panel, Jody’s “expressions of fear of defendant were neither relevant nor material” and also were “highly
prejudicial and clearly cumulative.” The Court granted the State’s petition for certification. 221 N.J. 219 (2015).
HELD: State-of-mind hearsay statements by a deceased about fear of a defendant, who later advances in his or her
defense in a homicide prosecution a claim that the victim’s death was accidental, are admissible for the purpose of
proving the declarant’s state of mind under N.J.R.E. 803(c)(3). Such evidence is relevant when the door is opened by
the defense. A weighing for undue prejudice should follow a review for relevance under Rule 803(c)(3).

1. The Evidence Rules limit the admissibility of hearsay testimony. One exception allowing for the admission of
hearsay is the state-of-mind exception, N.J.R.E. 803(c)(3). When a matter places a declarant’s state of mind in
issue, the Rule allows a declarant’s out-of-court statement to be admitted for that singular purpose. The state-of-
mind exception does not broadly allow admission of a victim’s recounting of a defendant’s threats. However,
declarations of fear can be admitted to establish that the decedent was not the aggressor, did not commit suicide and
was not accidently killed, provided that those matters satisfy the relevancy requirement. When accident is proffered
as the explanation for a death, the state-of-mind hearsay exception has been used to admit testimony about a
decedent’s prior statements. See United States v. Brown, 490 F.2d 758, 767 (D.C. Cir. 1973). Other jurisdictions
similarly recognize that a homicide victim’s prior statements of fear of a defendant are both relevant and admissible
-- through state-of-mind testimony -- if the defendant in the case is claiming that an accident occurred. (pp. 25-29).

2. This is the first case in which the Court is squarely in a position to pass on whether state-of-mind hearsay may be
admitted to rebut a defense that the victim’s death was accidental. New Jersey’s case law previously suggested that
such evidence was admissible. The Court now holds that state-of-mind hearsay statements by a deceased about fear
of a defendant, who later advances in his or her defense in a homicide prosecution a claim that the victim’s death
was accidental, are admissible for the purpose of proving the declarant’s state of mind. Such evidence is relevant
when the door is opened by the defense, as occurred here. (pp. 29-30).

3. Having determined that state-of-mind evidence is relevant when defendant advances an accidental-death theory,
the Court assesses whether the trial court abused its discretion in admitting the evidence. The court was specific in
what it allowed: statements of fear of defendant; statements about defendant’s abusive conduct toward Jody, but not
specific acts; statements about her fear of heights; and statements about her intent to continue with the divorce. The
court cautioned that it was allowing limited reference to alleged domestic violence only for the “singular purpose” of
showing Jody’s state of mind. Importantly, the court stated that it would not permit any of the testimony to be used
to prove defendant’s motivation or conduct. Based on the argument advanced pretrial, the Court finds no error in
the trial court’s admissibility determination. The testimony was relevant to disputed, material factual issues about
Jody’s state of mind toward defendant, about her marital relationship, and about her likely conduct. (pp. 30-34).

4. The Court next addresses how the statements were handled at trial. Notably, the defense did not object to the
content of the testimony of the first three witnesses who testified to statements Jody made to them. Nor did counsel
request or suggest any limiting instruction at the time. Instead, the defense objected to the cumulative nature of the
two remaining witnesses after the fourth witness was called to the stand. The Court views the testimony of the
fourth and fifth witnesses from the vantage point of the trial court as the testimony unfolded. Plainly, the witnesses
were the tail of this testimony. That day, the State presented a total of five witnesses, and counsel did not object
until the short presentations of the fourth and fifth witnesses. Overall, the objected-to testimony was brief, covered
some different ground, and was not cumulative to the point of being erroneously admitted. (pp. 34-36).

5. On appeal, defendant advanced arguments not presented to the trial court: Defendant argued that the prejudicial
content of Jody’s statements required their exclusion, and that the jury instructions on the use of the state-of-mind
evidence were inadequate. Here, the better practice would have been for the trial court to have limited the state-of-
mind testimony. However, the evidence of the five witnesses, presented on a single day of this multi-day trial, was
not an overriding part of the State’s presentation; the great bulk of the State’s case, presented over many days,
focused on the investigation and forensic evidence. The jury also was told by the court to use the statements only
for the purpose of understanding Jody’s state of mind. Thus, the Court does not perceive the admission of the
evidence to constitute plain error. Nor does the Court find plain error in the jury instruction. In light of the manner
in which the trial court solicited input and engaged with counsel over a proper limiting instruction, the result here
was a negotiated charge that the Court cannot say caused defendant’s trial to be unjust. (pp. 36-41).

6. Having addressed the arguments raised in this matter, the Court highlights its concerns about dangers associated
with use of state-of-mind testimony about a declarant’s fear of a defendant. Care must be taken to guard against
undue prejudice and the risk that the jury may misuse the evidence. Accordingly, trial courts are obligated to
perform an express Rule 403 weighing of evidence in addition to an assessment for relevance of the victim’s state-
of-mind testimony under Rule 803(c)(3). A weighing for undue prejudice should follow a review for relevance

                                                           2
under Rule 803(c)(3). In addition to the court’s ability to exclude such evidence, the trial court should consider
limiting its amount, including redacting or sanitizing it as appropriate, to balance the interests of the proponent of
the testimony and that of the party against whom it is used. Further, a proper limiting instruction is necessary to
guard against the risk that the jury will consider the victim’s statements of fear as evidence of the defendant’s intent
or actions. The better practice, whether requested or not, is to tailor the charge on how to use the state-of-mind
evidence to the facts and to tell the jury how the evidence may be used and how it may not be used. (pp. 41-45).

        The judgment of the Appellate Division is REVERSED and the matter is remanded for consideration of
defendant’s unaddressed appellate arguments.

         CHIEF JUSTICE RABNER; JUSTICES ALBIN, FERNANDEZ-VINA and SOLOMON; and
JUDGE CUFF (temporarily assigned) join in JUSTICE LaVECCHIA’s opinion. JUSTICE PATTERSON
did not participate.




                                                           3
                                       SUPREME COURT OF NEW JERSEY
                                         A-46 September Term 2014
                                                  074922

STATE OF NEW JERSEY,

    Plaintiff-Appellant,

         v.

STEPHEN F. SCHARF,

    Defendant-Respondent.


         Argued February 2, 2016 – Decided July 18, 2016

         On certification to the Superior Court,
         Appellate Division.

         Catherine A. Foddai, Senior Assistant
         Prosecutor, argued the cause for appellant
         (John L. Molinelli, Bergen County
         Prosecutor, attorney).

         Stephen W. Kirsch, Assistant Deputy Public
         Defender, argued the cause for respondent
         (Joseph E. Krakora, Public Defender,
         attorney).

         Ian C. Kennedy, Deputy Attorney General,
         argued the cause for amicus curiae, Attorney
         General of New Jersey (John J. Hoffman,
         Acting Attorney General, attorney; Mr.
         Kennedy and Daniel I. Bornstein, Deputy
         Attorney General, of counsel and on the
         briefs).

   JUSTICE LaVECCHIA delivered the opinion of the Court.

   Defendant Stephen Scharf was convicted of first-degree

purposeful and knowing murder of his wife Jody, who fell to her

death off a cliff at the Palisades.   Defendant put forward a


                                1
defense of accident.     During the trial, the court allowed the

State to present, in rebuttal to the defense of accident,

hearsay statements, under N.J.R.E. 803(c)(3) and (c)(4), from

Jody’s friends and her therapist.      The witnesses claimed that

Jody repeatedly told them of her fear of defendant, particularly

after she had served him with a divorce complaint, and told them

that she had declined defendant’s request to go to the Palisades

cliffs with him shortly before her death.

    On appeal, the Appellate Division reversed the conviction

because the reviewing court concluded that the trial court erred

in admitting the hearsay statements.     The case is before us on

the State’s petition for certification.      State v. Scharf, 221

N.J. 219 (2015).     The appeal requires us to address whether it

was error for the trial court to have admitted the evidence and,

even if the evidence was admissible, whether the evidence,

cumulatively, constituted an abuse of the trial court’s

discretion that caused defendant’s trial to be unjust.

                                  I.

                                  A.

     On September 20, 1992, Palisades Interstate Parkway police

officers responded to a report that a person had fallen from the

Englewood cliffs.1    First responder, Officer Paul Abbott,


1 To place the legal issue in context, we summarize the facts as
they were presented during the trial. Because the murder for
                                   2
explained in his testimony that the cliffs provide a scenic

lookout across the Hudson River.       When Abbott arrived at the

scene at approximately 8:12 p.m., it was already dark.

Defendant approached Abbott in the parking area and told him

that his wife had fallen from the cliff.       Abbott drove defendant

to the northern end of the cliffs -- the area from which

defendant said that his wife had fallen.       Officer Lowell Tomayo,

who responded to the scene with Abbott, followed in a second

vehicle.   Upon arriving at the northern end of the cliffs,

defendant guided the officers on foot down an unmaintained and

overgrown path into a wooded area.

    According to testimony from Abbott and Tomayo, the officers

and defendant eventually reached the edge of the cliff, and

defendant indicated the precise spot from where his wife had

fallen, pointing to a flat rock that jutted out from the cliff.

A fence separated the wooded area from the cliff’s edge.       The

officers crossed the fence and called Jody’s name, but received

no response.   The officers saw a pocketbook lying approximately

eight feet below the cliff; it was later identified as belonging

to Jody.   Jody’s body was recovered late that night.      Forensic




which defendant was convicted occurred in 1992 and the trial
took place in 2011, the proceedings that explain that delay are
also recounted.

                                   3
examination of her body established that, at the time of her

death, she had a blood alcohol content of 0.12%.

    Defendant was escorted to police headquarters, where he

spoke with Detective Ronald Karnick and gave a written statement

concerning what had happened that evening.    In that statement,

defendant told Karnick that he and his wife had planned to go

into New York City to a comedy club that evening, that the

lookout on the cliff had been “their spot,” and that they had

been drinking in their car prior to walking to the lookout

point.   Defendant said that he and Jody walked down the trail,

climbed through the fence, and sat on the flat rock that he had

shown to the officers earlier.    According to defendant, he and

Jody began engaging in amorous activities, at which point Jody

indicated she was uncomfortable so he offered to retrieve a

blanket and some wine from the car.    Defendant said that he and

Jody both stood up, and then Jody suddenly fell forward off the

rock.    Defendant said that he called her name but received no

response.

    Karnick obtained defendant’s permission to search his

vehicle and found in it a cooler, a wine glass, two wine coolers

(one full, one empty), a bottle of wine, a knife, a blanket,

some bandages, two white towels, a candle, a receipt, a box of

crackers, a jewelry box containing a cross and a “gold-type

chain,” and a claw hammer.

                                  4
    As the investigation continued, subsequent questioning of

defendant uncovered additional information.   Defendant revealed

that, two weeks prior to her death, Jody served defendant with a

divorce complaint that alleged defendant was abusive and

unfaithful.   Defendant told investigators that Jody was a heavy

drinker and that both he and she had dated other people as part

of an open marriage.   However, defendant told the investigators

that he had ended his relationships with the other women and

hoped that a “trip to the cliffs” would lead to his and Jody’s

reconciliation.

    In an interview a few days after Jody’s death, defendant

stated that he and his wife had planned to go out to dinner and

then to New York City on September 20, 1992, the evening of her

death.   Defendant told the officers that, the night before, he

and Jody had dined out together with their son, but on the next

evening, which was a Sunday, they arranged for someone to watch

their son.    They were on the way to New York City, from their

home in Morris County, when, defendant claimed, he and Jody

decided to make a detour to the cliffs.

    At the time of law enforcement’s initial investigation into

the circumstances of Jody’s death, interviews of Jody’s friends

and acquaintances called into question several of defendant’s

assertions, including Jody’s state of mind, her activities, and

her interactions with defendant leading up to her death.   Also,

                                  5
according to the testimony of the investigating officers,

defendant’s responses to repeated questioning revealed

inconsistencies, including differing versions of how the fall

occurred, and some inculpatory indications.     Nonetheless, the

criminal investigation into the circumstances of Jody’s death

did not lead initially to charges being filed against defendant.

However, certain events that occurred after Jody’s death and

before defendant’s indictment bear notice at this point.

       At the time Jody died, the medical examiner concluded that

the cause of death was “multiple fractures and injuries”;

however, the examiner remained uncertain about the “manner of

death” and listed it as “pending investigation” on the death

certificate.    The medical examiner amended the “manner of death”

in 1993 to “could not be determined.”

       The record also reveals that, during the year prior to her

death, defendant obtained a life insurance policy on Jody in the

amount of $500,000 -- $300,000 as a basic amount of insurance

and $200,000 as an accidental death benefit.     After Jody’s

death, defendant did not file a claim for the proceeds of that

policy.    After the proceeds had remained unclaimed for the

lawfully required number of years, the insurer forwarded the

monies to the State as unclaimed funds.    See N.J.S.A. 46:30B-9,

-22.    In 2003, defendant claimed the money held by the State,

which had grown to $770,650.83 with interest.

                                  6
    The Bergen County Prosecutor’s Office reevaluated the

circumstances of Jody’s death in 2004, and for the first time,

the medical examiner went to the location at the cliffs to view

the area where Jody fell and where her body was recovered.

    After reinvestigation of the matter, in 2007, the medical

examiner amended the “manner of death” on Jody’s death

certificate from “could not be determined” to “homicide.”     The

Bergen County Prosecutor’s reevaluation of the evidence and

follow-up interviews, detailed in the discussion of the trial

testimony, led to a decision to pursue a murder charge against

defendant for the 1992 death of his wife.

    A grand jury indicted defendant for first-degree purposeful

and knowing murder, N.J.S.A. 2C:11-3(a)(1) and 2C:11-3(a)(2).

                               B.

    As noted, defendant proffered a defense of accident.      The

State’s evidence in preparation for trial included oral

statements made by Jody to her friends and to her therapist,

which were proposed for admission by the State as going to the

state of mind of the victim.   The State sought to use the

evidence to rebut defendant’s narrative that Jody’s death was

due to an unfortunate accident that took place when he and she

were alone on the cliffs on the evening of Sunday, September 20,

1992.



                                 7
    The defense filed a pretrial motion to exclude Jody’s

hearsay statements.    At the pretrial hearing on the motion,

defense counsel “acknowledge[d] that where accident is the

defense [state-of-mind evidence] may become probative.”

However, defense counsel stressed the large volume of potential

state-of-mind evidence that was proffered by the State (there

were thirty-four potential statements from twenty-six

witnesses), arguing that the trial court needed to determine

whether the statements made by Jody were made in good faith at

the time when they were spoken.     In response to the motion, the

State whittled down its list of proposed witnesses on this

issue.   It clarified its intent to rely on Jody’s statements to

six individuals regarding her state of mind around the time of

her death.

    In a written decision issued April 11, 2011, the trial

court denied defendant’s motions to exclude the proposed

testimony of Jody’s statements to friends and to exclude the

statements made to her therapist.     The trial court acknowledged

that twenty-six individuals had provided the State with

approximately thirty-four statements made by Jody, but that the

State had narrowed that list down to the ones before the court.

The court stated that it carefully reviewed those statements

prior to ruling to assess whether they contained admissible

evidence.    After reviewing the state-of-mind hearsay exception

                                  8
under N.J.R.E. 803(c)(3), and noting that defendant was arguing

that Jody’s fall was accidental, the court stated that “New

Jersey courts have recognized that when a defendant claims that

the victim’s death was accidental, then the victim’s state of

mind becomes relevant and the victim’s statements of fear

become[] admissible.”   The court found Jody’s state of mind to

be “highly probative” on the issues to be tried in this matter

and concluded that the State should be permitted to introduce

the testimony of the six witnesses who would tell of Jody’s

expressed fear of defendant and of his abusive conduct, her

expressed intent to continue with the divorce proceedings

initiated against defendant, and her expressed fear of heights.

    According to the trial court, Jody’s statements to those

six identified individuals were made close enough in time to the

events of September 20, 1992 and would provide evidence that

would “directly counter” defendant’s assertion that Jody’s fall

from the Palisades cliffs while alone with defendant was

accidental.   The court specifically stated that it would allow

limited reference to alleged domestic violence to be elicited

from the witnesses and only for the “singular purpose” of

showing Jody’s state of mind.   However, the court warned that

the statements would not be permitted to “prove the defendant’s

motivation or conduct” and emphasized that “[t]hese statements

are solely admissible to show Jody’s state of mind.”   The court

                                 9
directed the attorneys to prepare limiting instructions that

would be provided to the jury in order to make that distinction

clear.

    Concerning the proposed testimony by Jody’s therapist, the

court found that a statement made by Jody to the therapist –-

namely, that she had refused defendant’s invitation to accompany

him on a picnic to the Palisades and that she had never been to

that spot before -- was admissible under N.J.R.E. 803(c)(3).

The court considered the statement to relate to the

“relationship between Jody and defendant” and to be part of “the

‘mosaic’ of the event.”   The court explained that the fact that

Jody told her therapist that she had never been to the Palisades

was “part of the totality of her relationship with the defendant

and placed in issue the defendant’s version of their marital

relationship.”

    The court allowed the admission of other statements made by

Jody to her therapist under N.J.R.E. 803(c)(4) as statements

made for the purpose of medical diagnosis and treatment.   To

that end, the court found that “the statements relating to both

the cause and symptoms of Jody’s depression carr[ied] with them

inherent reliability because Jody would necessarily have

believed that effective treatment . . . was largely dependent

upon the accuracy of the information provided to” her therapist.

In admitting that testimony, the court stated it was convinced

                                10
that Jody’s statements to her therapist were “medically

necessary for effective treatment,” adding that it considered it

appropriate to allow the therapist’s testimony “as to cause,

symptoms and feelings Jody conveyed to her while she was

treating Jody for depression.”    Again, the court asked the

attorneys to prepare an appropriate limiting instruction that

would discuss the purpose for which this evidence could be

considered by the jury.

                                 C.

     Defendant’s jury trial began with opening statements on

April 19, 2011.   Over the entire first two days of trial, the

State called three witnesses:    Jonathan Scharf, the son of Jody

and defendant, and two women with whom defendant had had

extramarital relationships.

     Jonathan’s testimony was damaging to his father, although

the defense brought out differences between Jonathan’s interview

at the time of his mother’s death when he was a child, and which

was apparently not recorded, and his recorded testimony at the

time of his father’s arrest, as well as additional information

that did not come out until trial.2    Undermining the narrative


2 Defense counsel pointed out inconsistencies between Jonathan’s
testimony on direct examination and his statements to police
shortly after defendant was arrested. Jonathan explained those
inconsistencies by admitting that he was afraid of his father
and held back in his second interview, even though he was an
adult at the time. Jonathan stated that he was concerned that
                                  11
presented by defendant to police interrogators, Jonathan, who

was ten years old at the time of his mother’s death, testified

that he accompanied his parents when they went out to dinner the

Saturday night before Jody’s death because Jody had not wanted

to go out alone with defendant; she had insisted that Jonathan

had to be with them.   He also testified that his parents had

never been to the cliffs before the date of the incident.     His

testimony also included reference to his mother’s fear of

heights, even to the extent that she would not climb a step

ladder because of that fear.

    The two women who had extramarital affairs with defendant

also provided damaging testimony, specifically recounting

statements by defendant that negated his assertion that he had

ended his extramarital relationships with them.

    T.S. testified that she began dating defendant in 1990 and

that after about six to seven months, he began to regularly

spend three nights per week at her home.   T.S. testified that

defendant never expressed a desire to end their relationship.

Defendant had told T.S. that he was not married -- he claimed

that his wife had died in a car accident in Georgia ten years

earlier -- and that he had fathered his son Jonathan with a




defendant might try to harm Jonathan’s wife and that he wanted
to be sure defendant was in custody before he disclosed some of
the events about which he testified.
                                12
“career woman” who lived in the same residential complex as him

but who did not want to get married.     According to T.S.,

defendant told her that the custody arrangement over Jonathan

was “amicable.”   At some point, defendant mentioned the

possibility of marriage.   Although T.S. was not interested in

marriage, the relationship continued.     More specifically to the

time period of Jody’s death, T.S. testified that defendant did

not join her as planned on a long Labor Day weekend trip in

September 1992.   Arriving late, defendant told her that he was

under a lot of stress, apologized, and stated that, if T.S.

would “give [him] to the end of September . . . everything will

be okay, the stress will be -- a lot of the stress will be

gone.”

    The other woman who testified, K.S., met defendant in 1990

through a newspaper dating advertisement.     Defendant told K.S.

that he was divorced and had a son.     As they continued to see

each other, defendant later admitted that he was married, but

claimed that he was planning to get a divorce.     K.S. stated that

she contacted Jody by phone and that Jody also told her that she

and defendant were separated and that they dated other people.

The relationship between K.S. and defendant ended shortly

thereafter.

    K.S. testified that defendant continued to contact her

through the end of 1990 into 1991 and that, in the early part of

                                13
1992, K.S. began to see defendant again once defendant informed

her that Jody was going to file for divorce.    K.S. stated that

defendant even showed her in July of 1992 the as-yet unserved

divorce papers that Jody’s attorney had prepared.3

     In her testimony, K.S. described her relationship with

defendant in September 1992 as “serious,” stating that the two

had briefly discussed marriage.    Defendant had never expressed a

desire to end their relationship, according to K.S.     She

testified that defendant called her to inform her of Jody’s

death, explaining that they had gone to the Palisades and Jody

had fallen from a rock.

     It was on the third day of the trial that the State called

five witnesses to testify to the statements, made by Jody to

them, that are at issue in this appeal.    The testimony of all

five individuals was completed that day.    The great bulk of the

testimony that day came from the first two witnesses, M.H.,

Jody’s friend, and Patricia Teague, Jody’s therapist.

     M.H. testified that she and Jody became friends because

they frequented the same lunch spot when the two were in the

same area conducting business.    She stated that Jody was “very

frightened of [defendant].”   M.H. described how, in the month


3 Examination of the record reveals that, in July, Jody had filed
for divorce but that the papers had not yet been served on
defendant. The papers were served in September, shortly before
her death.
                                  14
leading up to Jody’s death, Jody frequently mentioned her fear

of defendant, stating that she “felt he was going to really hurt

her.”     Having gone through a divorce fifteen years earlier, M.H.

had discussed with Jody taking steps toward a divorce.     Jody

confided in M.H. around the time that she served defendant with

divorce papers in the late summer of 1992, telling M.H. that she

“was very afraid” and that she feared that “once these papers

are served on [her] husband . . . something’s going to happen to

[her].”    M.H. added that Jody was “very afraid for her life” and

“very afraid that he was going to kill her.”     According to M.H.,

Jody said that “if anything happens after this, I want you to

know who did it.”     Defense counsel did not object during M.H.’s

testimony.

    The second witness, Jody’s therapist, Patricia Teague,

testified that “verbal, mental physical abuse” led to Jody’s

feelings of serious depression, which were the focus of their

sessions together.     Teague also stated that in the course of

their discussions Jody had told her that she had never been to

the cliffs and that, although defendant recently had invited her

to go with him to the cliffs, she had told Teague that she did

not intend to go there ever with defendant.     Defense counsel did

not object to this testimony.

    The third witness was M.G., who testified that she knew

Jody because she worked at a restaurant frequented by Jody and

                                  15
her son, when he had activities going on in a park nearby, or

sometimes by Jody alone.   M.G. testified that she last saw Jody

on the Saturday before she died when Jody came into the

restaurant.   Because she was busy with customers, M.G. was

unable to talk with Jody, but she was passed a note from Jody,

which informed her that Jody had served defendant with divorce

papers on Friday and that defendant “was very unhappy about it

and . . . she was kind of afraid.”    Although in the note Jody

had asked M.G. to call her later, M.G. did not.     By way of

background, M.G. explained that she and Jody had discussed

Jody’s marital problems in previous conversations and how Jody

wanted defendant out of the house.    On cross-examination, M.G.

added that she had encouraged Jody to take legal action to help

herself.   Again, defense counsel did not object.

    When the fourth witness, M.D., was called to the stand,

defense counsel requested to be heard at sidebar.    In that

exchange, defense counsel registered an objection to the next

witnesses, claiming that the testimony was cumulative.     Counsel

stated, “I expect the Prosecutor basically to put another three

witnesses [on] to say the exact same thing that Jody says, she

was afraid of my client and I think it[’s] gotten to the point

where it’s cumulative and that it shouldn’t proceed any further.

All these witnesses are basically going to say the exact same

thing.”    The prosecutor responded that each witness came from a

                                 16
different part of Jody’s life and asserted the right to present

those different perspectives.   The court allowed the testimony

to proceed, stating:   “Okay.   All right.     The objection is that

it’s cumulative.   Let’s see what they have to say.      You can make

further objections.”

    The remaining two witnesses were brief, comprising

respectively twelve and ten pages of transcript, direct and

cross-examination combined.

    M.D., defendant’s and Jody’s neighbor, testified that she

last saw Jody on the Saturday before she died because she was

working at the same restaurant as M.G.       M.D. stated that Jody

told her that she had filed for divorce, that she had served

defendant with divorce papers, and that defendant had refused to

sign the papers and threatened her life.       M.D. also stated that

Jody had “feared for her life” and that defendant had told her,

upon receiving the divorce papers, that “he would see her dead

before he’d let her -- before he would sign them.”       Defense

counsel did not object to that content but, at the conclusion of

M.D.’s testimony, stated that he was “just making that

continuing objection that [he] made at last sidebar.”

    The last witness called by the State that day was A.R., who

worked as a bartender at the restaurant where Jody and M.H.

would meet for lunch on workdays.     According to A.R., Jody had

told her that defendant was abusive and had shown A.R. a photo

                                 17
of defendant after she filed for the divorce so A.R. could

recognize him, and let Jody know if he ever came into the

restaurant.     She also stated that, when she saw Jody the Friday

before she died, Jody was very upset and told her that she “was

afraid [defendant] was going to kill her because of the

divorce.”     Defense counsel did not object.

    Throughout the testimony of those witnesses, defendant did

not request a limiting instruction to the jury, despite the

court’s pretrial request for counsel to develop and propose a

limiting instruction for the court’s use.       The topic of a

limiting instruction did not come up until the charge

conference.

    Over the next seven days of the trial, the State presented

testimony from fourteen witnesses concerning physical and

forensic evidence obtained during the investigation into Jody’s

death.   The State called the investigating officers who

responded to the scene the evening of Jody’s fall, the ones who

were responsible for executing consent searches of defendant’s

vehicle and residence, and the ones who later interviewed

defendant.     Those officers discussed certain behaviors exhibited

by defendant during their investigation and how his statements

were, at times, inconsistent.     One officer who was with

defendant during the search of defendant’s residence, testified

that defendant said to him “you don’t believe this was an

                                  18
accident.”   The officer responded that he did “believe an

accident happened,” but that when he in turn asked defendant if

it was, defendant shook his head somewhat and replied “no” as he

put his head down.   Another officer who was present also

testified to witnessing that exchange.

    Also testifying for the State were members of the rescue

team involved in recovering Jody’s body.    The State then

presented the testimony of a land surveyor, who had measured the

height of the cliffs, and an investigator who took measurements

of the area and conducted and videotaped experiments that

involved throwing sandbags matching Jody’s weight off the cliff.

Finally, the State called two forensic pathologists, one of whom

had composed the autopsy report.     A summary of their testimony

follows.

    Dr. Maryann Clayton, who performed the autopsy on Jody,

initially noted that the majority of Jody’s injuries were to her

head and face, as well as to the right side of her body.     At the

time the autopsy was performed, Dr. Clayton determined that the

cause of death was multiple fractures and injuries, but the

manner of death was listed as “pending investigation” on the

original death certificate.   Dr. Clayton also noted at that time

that she found it unusual that there were no visible indications

of abrasions, lacerations, or contusions on the back surface of



                                19
Jody’s body, nor were there any breaks in her arm, pelvic, or

leg bones.

     In January 1993, Dr. Clayton concluded that the manner of

death could not be determined and an amendment to the death

certificate was entered.   In January of 2006, as part of a

reinvestigation into Jody’s death, Dr. Clayton journeyed for the

first time to the bottom of the cliffs to view the place from

which Jody’s body was recovered.      That different perspective led

Dr. Clayton to conclude that Jody’s injuries were “not

consistent with a patient that passively rolls down the cliffs

to the bottom and meets their demise.”     Dr. Clayton also noted

that Jody’s injuries were unlike those of other individuals who

had died as a result of falling from a high distance.     Dr.

Clayton thus concluded that Jody had to have experienced a

“propulsive force,” meaning that “[s]he had to be propelled out

to be able to reach” the tree that she struck on the way down.

Dr. Clayton then amended the manner of Jody’s death to homicide.

     The other forensic pathologist, Dr. Michael Baden, became

involved with the case in 2004 when contacted by the

Prosecutor’s Office during the reinvestigation into Jody’s

death.    Dr. Baden noted that the distance from the point where

an individual fell to where the individual landed is an

important factor in determining the manner in which someone

fell.    For example, Dr. Baden stated that a person who fell

                                 20
accidentally would be “within a couple of feet of the base” from

which he or she fell while a person who is propelled would be a

“much larger” distance away.     With that in mind, Dr. Baden

concluded that Jody’s injuries were “not consistent with an

innocent fall from the point indicated at that lookout area.”

Dr. Baden, like Dr. Clayton, also concluded that the manner of

death was homicide, given that a body from an innocent fall

“could not go out that far” and that Jody “had to have been

propelled from that point” on the cliffs.

    Summations occurred on May 24, 2011, and the trial court

instructed the jury that same day.     The instruction provided on

the state-of-mind hearsay testimony was negotiated between the

parties and was what the defense had requested.     The court

instructed the jury that, “[i]f you find that she made these

statements then you may consider them only for the purpose of

determining her state of mind at the time those statements were

made and for no other reason.”

    Defendant was convicted of first-degree purposeful and

knowing murder, N.J.S.A. 2C:11-3(a)(1) and N.J.S.A. 2C:11-

3(a)(2), and was sentenced to life in prison, subject to thirty

years of parole ineligibility.

    Defendant appealed, and the Appellate Division reversed his

conviction.   The primary issue for the panel was whether the

trial court erred in admitting the hearsay statements from

                                  21
Jody’s friends and therapist.    To the panel, Jody’s “expressions

of fear of defendant were neither relevant nor material” and

also were “highly prejudicial and clearly cumulative.”

    The panel determined that Jody’s statements were not

relevant because her state of mind was not at issue.     According

to the panel, Jody’s “fear of defendant, even if based on their

past history, simply does not make it more or less likely that,

once having gone to the Englewood Cliffs with defendant, while

she was under the influence of alcohol, an accident could not

have occurred.”    To that end, the panel noted that “[t]here is

no reason that the victim’s fear of defendant would have made it

less likely that an accident occurred.”    Additionally, the panel

did not find a connection between Jody’s state of mind and her

conduct, because, regardless of her fear of defendant, there had

been testimony at trial that she had spent time with defendant

the night before her death.     According to the panel, the

prejudicial impact of evidence of Jody’s fear outweighed any

probative value.

    The panel reached the same conclusion regarding Teague’s

testimony with “regard to [Jody’s] fear of defendant and any

history of domestic violence.”    Those statements were determined

not to meet the standard for relevancy under N.J.R.E. 401

because the panel did not view Jody’s “state of mind, her fear,

and the alleged abuse inflicted by defendant [as] probative on

                                  22
any issue in the case.”   The panel further held Jody’s statement

to Teague -- that she had never been to the cliffs and declined

defendant’s invitation to go there with him -- was also

inadmissible.

    The panel concluded that those errors were “clearly capable

of producing an unjust result,” R. 2:10-2, reversed defendant’s

conviction, and remanded the matter for retrial.

    We granted the State’s petition for certification.    We also

granted amicus curiae status to the Attorney General of New

Jersey.

                               II.

    The State argues essentially the same points made to the

Appellate Division.   It maintains that evidence of Jody’s state

of mind was relevant to counter the defense that Jody’s death

was accidental and was admissible under hearsay exceptions.     The

testimony was limited to only five witnesses and was kept

limited to a proper purpose.   The State maintains that admission

of the evidence was not error but rather a proper exercise of

the trial court’s discretionary role as the gatekeeper of

evidence permitted to be introduced at trial.   As for the

court’s charge to the jury, the State notes that the defense did

not provide the court with any specific proposal or request with

respect to limiting instructions that would have been more



                                23
adequate than what the trial court provided.    Thus, the State

contends that defendant’s trial was not unjust.

    The Attorney General’s arguments support those advanced by

the State, emphasizing that the charge delivered to the jury was

a negotiated one.

    The defense urges affirmance of the Appellate Division’s

judgment.   It argues that Jody’s state of mind is not relevant

because the State failed to show how Jody’s fear of defendant

makes it more or less likely that defendant intentionally pushed

Jody from the cliff rather than that she had an accidental fall.

To that end, defendant contends that hearsay declarations of a

decedent’s fear of a defendant are generally inadmissible

because the decedent’s state of mind -- that he or she was

fearful of a defendant -- is not relevant to answering the

principal question in a homicide trial:    whether the defendant

killed with the requisite state of mind.    Testimony regarding

Jody’s state of mind at the time of her death cannot be used,

according to defendant, to infer defendant’s actions on the

night of her death.

    Moreover, defendant continues, the statements are highly

prejudicial because “[they] raise[] in the jurors’ minds the

specter of a frightening defendant worthy of the decedent’s

fear.”   According to defendant, our case law requires that

courts look to whether the declarant’s state of mind actually

                                24
proves any matter in the dispute or whether it serves to simply

inflame the prejudice of the jury.     Thus, defendant emphasizes

that any testimony regarding Jody’s fear of defendant should

have been regarded as inadmissible hearsay due to its “extreme

potential to inflame the jury.”

                                III.

                                  A.

    In this review of the admission of hearsay testimony about

the decedent’s expressions of fear of her husband uttered

shortly before her death under unusual circumstances, we must

begin with basics.

    Evidence must be relevant for it to be admissible, meaning

that it must have “a tendency in reason to prove or disprove any

fact of consequence to the determination of the action.”

N.J.R.E. 401; see State v. Darby, 174 N.J. 509, 519 (2002)

(explaining that “the inquiry should focus on the logical

connection between the proffered evidence and a fact in issue”

(quotation marks omitted)).     In the search for the truth, all

relevant evidence is admissible unless otherwise excluded by the

New Jersey Rules of Evidence.     See N.J.R.E. 402.

    The Evidence Rules take special care to limit the

admissibility of hearsay testimony.     See N.J.R.E. 801(c)

(defining hearsay as “a statement, other than one made by the

declarant while testifying at the trial or hearing, offered in

                                  25
evidence to prove the truth of the matter asserted”).

Generally, hearsay is not admissible, “except as provided by

[New Jersey’s rules of evidence] or by other law.”     N.J.R.E.

802.

       One exception allowing for the admission of hearsay is the

state-of-mind exception.     N.J.R.E. 803(c)(3) provides:

           A statement made in good faith of the
           declarant’s then existing state of mind,
           emotion, sensation or physical condition (such
           as intent, plan, motive, design, mental
           feeling, pain, or bodily health), but not
           including a statement of memory or belief to
           prove the fact remembered or believed unless
           it relates to the execution, revocation,
           identification, or terms of declarant’s will.

When a matter places a declarant’s state of mind in issue, the

Rule allows a declarant’s out-of-court statement to be admitted

for that singular purpose.    State v. Benedetto, 120 N.J. 250,

255-56 (1990).   The exception is applied carefully; hearsay

testimony is admissible on state of mind when it is relevant and

bears a logical connection to the issues at trial.     State v.

McLaughlin, 205 N.J. 185, 189 (2011).     Our case law bears out

that cautious approach.

       When it comes to an expression of fear by the out-of-court

declarant, the state-of-mind exception is analyzed carefully

concerning its relation to the issues at trial and whether the

hearsay should be permitted for a limited use.    The state-of-

mind exception to the hearsay rule does not broadly allow

                                  26
admission of a victim’s recounting of a defendant’s threats.

See, e.g., Benedetto, supra, 120 N.J. at 259-61 (finding that

victim’s statements describing threats were “not relevant to any

issue and not explanatory of how defendant had acted on the

night of [the victim’s death]”); State v. Downey, 206 N.J.

Super. 382, 392 (App. Div. 1986) (noting weight of authority

supporting same).

    However, declarations of fear can be admitted “to

establish[] that the decedent was not the aggressor, did not

commit suicide and was not accidently killed,” provided that

those matters satisfy the relevancy requirement.   State v.

Machado, 111 N.J. 480, 485 (1988) (citing Downey, supra, 206

N.J. Super. at 392-93); see also State v. Calleia, 206 N.J. 274,

292 (2011) (noting general guidance that “declaration of the

victim’s state of mind . . . should not be used to prove the

defendant’s motivation or conduct” (quotation marks and citation

omitted)).   A victim’s state-of-mind hearsay statements are

relevant to assessments of his or her own actions, and thus such

statements can be relevant in the assessment of the truth of

another’s stated reasons for conduct that occurred with that

victim.   Calleia, supra, 206 N.J. at 296.

    More specifically to the matter at hand, when accident is

proffered as the explanation for a death, the state-of-mind

hearsay exception has been used to admit testimony about a

                                27
decedent’s prior statements.     In United States v. Brown, 490

F.2d 758, 767 (D.C. Cir. 1973), the D.C. Circuit observed that

“courts have developed three rather well-defined categories in

which the need for [state-of-mind evidence] overcomes almost any

possible prejudice”:    (1) when a defendant is claiming self-

defense; (2) when a defendant proffers a defense on the ground

that the deceased committed suicide; and, of relevance to the

present appeal, (3) when a defendant claims that there was an

accidental death.   Although finding undue prejudice in the

statements in issue before the court, the Brown panel noted that

this type of state-of-mind testimony possesses a “significant

degree of relevance.”    Ibid.   Indeed, it is generally accepted

that “such statements are admissible where the defense claims

self-defense, suicide, or accidental death because in each of

those situations the statements look to the future in that

decedent’s fear makes unlikely and thus helps to rebut defense

claims about the decedent’s subsequent conduct.”    2 McCormick on

Evidence § 276 at 403-04 (Broun ed., 7th ed. 2013).

    Courts in other jurisdictions similarly recognize that a

homicide victim’s prior statements of fear of a defendant are

both relevant and admissible -- through state-of-mind testimony

-- if the defendant in the case is claiming that an accident

occurred.   See, e.g., Jones v. United States, 398 A.2d 11, 12-13

(D.C. 1979) (finding state-of-mind testimony to be admissible

                                  28
where defendant claimed victim accidentally fell down stairs);

State v. Richards, 552 N.W.2d 197, 209 (Minn. 1996) (finding

that, because defendant raised accident and/or suicide as

defense to homicide charge, victim’s state of mind was relevant

and trial court did not err in admitting state-of-mind

testimony); State v. Crawford, 472 S.E.2d 920, 927 (N.C. 1996)

(concluding that victim’s state of mind was relevant “to the

issues involved in the instant case, including explaining and

refuting defendant’s claims of self-defense and accident”);

State v. Aesoph, 647 N.W.2d 743, 757 (S.D. 2002) (finding

victim’s state-of-mind testimony was admissible and noting that

“it is well understood that a murder victim’s statements,

regarding fear of the accused, are admissible to rebut a

defendant’s claim of accidental death” (citations omitted));

Clay v. Commonwealth, 546 S.E.2d 728, 730 (Va. 2001)

(determining that trial court committed no abuse of discretion

in admitting victim’s statements regarding fear of accused

because defendant claimed victim’s death was accidental and

because victim’s statements were relevant and probative of

whether accidental nature of death was likely).

    This is the first case in which we are squarely in a

position to pass on whether state-of-mind hearsay may be

admitted to rebut a defense that the victim’s death was

accidental.   Our case law previously suggested that it was

                                29
admissible; we now hold that state-of-mind hearsay statements by

a deceased about fear of a defendant, who later advances in his

or her defense in a homicide prosecution a claim that the

victim’s death was accidental, are admissible for the purpose of

proving the declarant’s state of mind under N.J.R.E. 803(c)(3).

Such evidence is relevant when the door is opened by the

defense, as occurred here by defendant’s advancement of accident

as the cause of Jody’s death under unusual circumstances.

Having determined that state-of-mind evidence about the victim

is relevant when an accidental-death theory is advanced by

defendant, we turn to assess whether the trial court abused its

discretion in admitting the evidence.

                               IV.

                                A.

    Evidentiary rulings made by the trial court are reviewed

under an abuse-of-discretion standard.   Hisenaj v. Kuehner, 194

N.J. 6, 12 (2008).   To that end, trial courts are granted broad

discretion in making decisions regarding evidentiary matters,

such as whether a piece of evidence is relevant, see Green v.

N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999), and whether a

particular hearsay statement is admissible under an appropriate

exception, see State v. Buda, 195 N.J. 278, 294-95 (2008).

    In pretrial argument before the trial court, the defense

conceded that state-of-mind evidence “may be probative” when

                                30
accident is the defense and focused its attack about

admissibility on the volume of statements that the State sought

to introduce and the good faith of Jody’s statements when made.

Responding to the arguments advanced pretrial, the trial court

assessed the voluntarily reduced list of witnesses from whom the

State sought to elicit the state-of-mind hearsay statements of

the deceased and concluded that they were relevant for the

singular purpose of the jury’s assessment of Jody’s state of

mind and how that related to the issues to be decided in this

homicide case.   Specifically, the court determined to allow

testimony from six witnesses (although only five actually

testified) about Jody’s statements expressed shortly before her

death and during the time when she was moving forward with her

divorce action by having it filed and served on defendant.     The

court emphasized the statements’ temporal proximity both to the

actions unfolding regarding the divorce and the date of Jody’s

death.   The court concluded that the statements were rendered

close enough in time to enhance their probative value and

provide a direct counter to defendant’s narrative that this was

all just an accidental death.   Without expressing it precisely

in terms of good faith, the court found the statements

sufficiently reliable to put them before the jury for their

assessment for that limited purpose.



                                31
    The court was specific in what it was allowing:     statements

of fear of defendant; statements about defendant’s abusive

conduct toward her, but not specific acts; statements about her

fear of heights; and statements about her intent to continue

with the divorce action she initiated.   On the matter of

defendant’s abuse, the court cautioned that it was allowing

limited reference to alleged domestic violence and only for the

“singular purpose” of showing Jody’s state of mind.    Thus, it

would allow the jury to weigh those statements against

defendant’s counter narrative that Jody willingly went with

defendant, whom she was divorcing, to an isolated and dangerous

spot where she allegedly accidentally fell to her death.     It

bears repeating that defendant asserted that the cliffs were

“their spot,” that he and Jody might have reconciled and not

divorced, and that amorous activities were still, at that time,

possible between them.

    Indeed, concerning Teague’s proffered testimony that Jody

told her in a therapy session that she had never gone to the

cliffs with defendant and that she had recently turned down his

request that she go there with him, the court noted the highly

relevant nature of that evidence to paint a picture of the

general relationship between defendant and Jody shortly before

the events of the evening of September 20, 1992 took place.

Plainly regarding that statement as intrinsic to the

                               32
relationship “mosaic” that both parties to the case would be

presenting, the court determined to allow Jody’s statements, all

of which were close in time to the event of her death.4

     Importantly, the court expressly stated that it would not

permit any of the testimony to be used to prove defendant’s

motivation or conduct.   The statements could be used to show

only Jody’s state of mind, and that use was deemed permissible

by the court because only her words were available to speak for

her about the likelihood that she acted as defendant asserted.

     Based on the argument advanced pretrial, we find no error

in the trial court’s admissibility determination.   The testimony

about Jody’s oral statements reflective of her state of mind was

relevant because defendant opened the door to it by arguing that

an accidental death occurred here.   Defendant’s argument

pretrial did not more specifically focus on the content of

Jody’s out-of-court state-of-mind statements.




4 We reject the argument that Teague could not testify to
statements made by Jody during her counseling sessions with her
because the defense asserts that the statements were not for the
purpose of medical diagnosis or treatment. As the State
properly argued, these statements were admissible as having been
obtained as part of Teague’s process of diagnosing the root
causes of Jody’s depressive feelings for which she was
administering professional care and treatment to Jody. See
N.J.R.E. 803(c)(4); see also R.S. v. Knighton, 125 N.J. 79, 88
(1991) (observing that, “when the cause of a symptom, pain, or
physical sensation is relevant to diagnosis and treatment,
courts will admit the statement”). We find no abuse of
discretion in the trial court’s admission of Teague’s testimony.
                                33
    On appeal, defendant argues that this state-of-mind

evidence could not possibly assist in the important assessment

of whether defendant killed with the requisite state of mind and

therefore its relevance was overvalued by the trial court.       We

reject that argument.   It is too limiting a frame for the

admissibility determination we review.    Whether Jody would have

gone alone with defendant, willingly, anywhere, let alone to an

isolated place, at night, on the cliffs, where she said she had

never been and would not go when asked before, makes this

evidence highly probative of her state of mind.    It was relevant

to disputed, material factual issues about Jody’s state of mind

toward defendant, about her marital relationship, and about her

likely conduct that were ultimately argued in this trial where

the defense was accidental death.    In conclusion, we find no

abuse of discretion in the court’s determination not to grant

defendant’s motion to exclude the evidence for the reasons

advanced.

                                B.

    Turning to how the statements were handled at trial when

admitted during the presentation of the testimony, we again view

those statements from the trial court’s vantage point because we

review the court’s admission of hearsay statements under an

abuse-of-discretion standard.   See Buda, supra, 195 N.J. at 295

(noting that “[o]ur review of these evidentiary determinations

                                34
likewise is limited to determining whether the trial court’s

decisions . . . constituted an abuse of discretion”).

Therefore, we examine the arguments, and objections, if any,

when made before the trial court as the evidence was presented.

See id. at 294-95.

    Notably, the defense raised no objection to the admission

of the statements of M.H., Teague, or M.G.      There was not a

single objection to the content of the testimony of those first

three witnesses.     Nor did counsel request or suggest any

limiting instruction at the time.      Instead, the defense mounted

an objection to the cumulative nature of the two remaining

witnesses when M.D. was about to testify (A.R. followed M.D. and

was the last witness presented by the State on this subject).

The court preliminarily accepted the State’s argument that it

was entitled to bring in testimony from the perspective of

people who interacted with Jody from different parts of her

life, said “let’s see what they say,” and informed defense

counsel that it would permit further objections.      No specific

objection came during any point in M.D.’s testimony.

    Just prior to A.R.’s testimony, counsel stated he was

continuing his objection based on the cumulative nature of the

testimony as was argued at sidebar, but there was no objection

to any specific part of A.R.’s testimony, just as there had been

none to M.D.’s testimony.

                                  35
    We recognize the hesitancy that a trial court might have

with interjecting in this testimony when defense counsel did not

object to any specific piece of the testimony by those witnesses

and who was himself actively questioning the witnesses about

Jody’s statements on cross-examination.     Concerning the

cumulative-testimony general objection, we note that M.D.’s

testimony took up only twelve pages and A.R.’s ten pages in the

transcript.     That included their direct and cross-examination.

Plainly, these witnesses were the tail of this testimony and we

view it from the vantage point of the trial court as the

testimony unfolded.     That day, the State had presented a total

of five witnesses.    The first two, M.H. and Teague, were by far

the longest, with M.G. trailing far behind in length.    Not until

the short presentations of M.D. and A.R. did the court confront

an objection.    We will not substitute our judgment for that of

the trial judge who sat through that day of testimony and

reacted fairly to the parties’ arguments about the remaining two

witnesses.    Overall, the objected-to testimony was brief,

covered some different ground, and was not cumulative to the

point of being erroneously admitted.    We determine that there

was no abuse of discretion by the trial court.

                                  V.

    On appeal, defendant advanced arguments not presented to

the trial court.     Defendant argued that the prejudicial content

                                  36
of the phraseology of the utterances by Jody, as testified to by

the witnesses, should have required their exclusion.    According

to defendant, their admission rendered the conviction reversible

as a matter of plain error.     Defendant also contended that the

trial court’s instructions to the jury on the use of the state-

of-mind evidence were inadequate.

                                 A.

    Generally, arguments about the prejudicial nature of

individual statements should have been made to the trial court.

See State v. Robinson, 200 N.J. 1, 19 (2009) (“The jurisdiction

of appellate courts rightly is bounded by the proofs and

objections critically explored on the record before the trial

court by the parties themselves.”).     An appellate court is

better positioned to reviewing evidential arguments first

presented to the trial court.

    That said, on the merits of defendant’s arguments, the

statements of Jody’s fear of defendant and of her fear of

violence by defendant were plainly prejudicial to defendant

because they conveyed unfavorable information about defendant,

as perceived by Jody.   There was testimony repeating numerous

statements by Jody about her fear of defendant, several about

her fear of violence by defendant, and even testimony that she

feared that he would kill her.    The quantity and quality of some

of those statements give us pause.     The better practice here

                                  37
would have been for the trial court to have limited the amount

and content of the state-of-mind testimony elicited through the

witnesses.

    But the admitted statements clearly were relevant for

rebutting defendant’s claim about how he and Jody were

interacting at the point in time that she ended up one evening

on a remote cliff on the Palisades with defendant when she was

pursuing a divorce action against him and was requesting friends

to let her know if he came around places she frequented looking

for her.   The hearsay statements were directly relevant and were

of assistance to the jury in its assessment of the likelihood

that Jody would have voluntarily accompanied defendant to the

edge of a cliff for a romantic interlude.     This was classic

state-of-mind evidence used to counter an accidental-death

defense to a charge of homicide.     Cf. Aesoph, supra, 647 N.W.2d

at 748, 755-57 (finding that state-of-mind hearsay testimony of

defendant’s deceased wife, who was divorcing him and had fled

home, that she feared violence by defendant was admissible in

rebuttal of defendant’s claim of accidental death); see

generally 2 McCormick on Evidence, supra, § 276 at 403-04

(stating that state-of-mind testimony is admissible to rebut

defense of accident because statements rebut defendant’s claims

about decedent’s conduct).



                                38
    The evidence of the five witnesses was not an overriding

part of the State’s presentation.     The five witnesses completed

all their testimony in a single day of this long, multi-day

trial.    The great bulk of the State’s case, presented over the

many days, focused on the investigation and the forensic

evidence regarding the scientific unlikelihood that Jody could

have accidentally fallen forward off the cliff and landed as she

did with the injuries she sustained.     And, the State

painstakingly brought out defendant’s many inconsistent

statements, including his differing versions of how the fall

occurred.   The jury was told by the court to use those

statements only for the purpose of understanding Jody’s state of

mind.    In reviewing the arguments of the parties, there was no

suggestion made to the jury to use the evidence in any other way

or for any other purpose.    Moreover, the State’s summation did

not dwell on Jody’s statements, but rather emphasized the

forensic evidence and defendant’s actions and his inconsistent

statements.    The State used the forensic evidence in summation

to show the implausibility that Jody could have simply fallen

from the cliff and landed where her body was found.       Thus,

although the testimony included repeated statements by Jody

about her fear of defendant, we do not perceive the content of

the evidence admitted to constitute plain error requiring

reversal of this conviction.

                                 39
    Nor do we find plain error in the instruction provided by

the court to the jury, although we have more to say about

instructing the jury in these settings.    To the extent that

defendant attacks the adequacy of the trial court’s limiting

instruction on the use of that evidence, we make the following

observations.

    First, the defense’s few objections during the eliciting of

the testimony went only to the asserted cumulative nature of the

evidence.   At no point during the presentation of the witnesses

did counsel propose instructing the jury at that time on the use

of the testimony.

    Second, it bears recalling that when the trial court ruled

pretrial that the state-of-mind evidence would not be excluded,

it instructed counsel to prepare and submit language to properly

instruct the jury about the evidence’s use.   None was

forthcoming during the trial apparently.

    Third, the issue of a limiting instruction finally came up

during the charge conference.   The transcript of the charge

conference demonstrates that the State offered proposed language

on the permissible use of the state-of-mind evidence.    The

defense reacted to that proposal, requesting removal of any

proposed use other than to show the victim’s state of mind.

After a pointed exchange between counsel, the court reserved on

the question.   The charge ultimately provided was limited to

                                40
what the defense requested be given.   In light of the manner in

which the trial court solicited input on an instruction to the

jury, and engaged with counsel over a proper limiting

instruction, the result here was a negotiated jury charge that

we cannot say caused defendant’s trial to be unjust.

                              B.

    Having addressed the arguments raised in this matter, we

would be remiss were we not to highlight our concern about

dangers associated with use of state-of-mind testimony about a

declarant’s fear of a defendant.

    Testimony about a decedent’s stated fear of the defendant

and, more pointedly, a decedent’s stated fear of violence at the

hands of the defendant, is powerful evidence.   It clearly

carries prejudicial impact for the defendant but the question is

whether it is unfairly prejudicial.    See N.J.R.E. 403.   For that

very reason, many courts evaluating the proper use of such

state-of-mind evidence have recognized that, even if the

proposed testimony is admissible as relevant evidence under the

state-of-mind exception to the hearsay rule, it can be subject

to exclusion if its relevance is substantially outweighed by the

danger of unfair prejudice.   See State v. Bauer, 598 N.W.2d 352,

367 (Minn. 1999) overruled on other grounds by, State v. McCoy,

682 N.W.2d 153, 160 n.6 (Minn. 2004); Campbell v. United States,

391 A.2d 283, 287 (D.C. App. 1978).

                                41
    We share the concern of courts in sister jurisdictions

about the need to take great care with such perilous evidence.

Care must be taken to guard against undue prejudice and the risk

that the jury may misuse the evidence.

    Accordingly, to address our concern about proper use of

state-of-mind hearsay evidence of a homicide victim’s fear of a

defendant, and especially the victim’s statements of fear of

violence by the defendant, we shall impose on trial courts, as

gatekeepers to the admissibility of such evidence, the

obligation to perform an express Rule 403 weighing of evidence

in addition to an assessment for relevance of the victim’s

state-of-mind testimony under Rule 803(c)(3).   A weighing for

undue prejudice should follow a review for relevance under Rule

803(c)(3).   In addition to the court’s ability to exclude such

evidence, the trial court should consider limiting its amount,

including redacting or sanitizing it as the court determines

appropriate, to balance the interests of the proponent of the

testimony and that of the party against whom it is used.     For

example, a court might allow the jury to hear relevant evidence

about the victim’s “fear” of a defendant but might redact more

prejudicial parts of a victim’s statement that she feared death

at the hands of the defendant.   The latter part adds little of

relevance and can be unduly prejudicial.   The sheer force of the

latter type of statement suggests that because the victim

                                 42
thought the defendant would kill her, he must have done so –-

which is not a permissible inference.

       Further, a proper limiting instruction is necessary.       “It

is the independent duty of the court to ensure that the jurors

receive accurate instructions on the law as it pertains to the

facts and issues of each case, irrespective of the particular

language suggested by either party.”      State v. Reddish, 181 N.J.

553, 613 (2004) (citing State v. Thompson, 59 N.J. 396, 411

(1971)).   Indeed, “[i]t is difficult to overstate the importance

of jury instructions” as “[a]ppropriate and proper charges are

essential for a fair trial.”    Ibid. (quoting State v. Green, 86

N.J. 281, 287 (1981)); see also State v. Baum, 224 N.J. 147, 159

(2016).

       A limiting instruction is required here to guard against

the risk that the jury will consider the victim’s statements of

fear as evidence of the defendant’s intent or actions.      See

Calleia, supra, 206 N.J. at 292.      Such state-of-mind testimony

may properly be used only for evaluating the victim’s actions or

the likelihood of him or her acting in a certain way.      Id. at

296.    The evidence is relevant, as it was in this case, for

assessing the likelihood of the victim’s actions when the jury

considers the defense of accidental death proffered in a

homicide prosecution.    However, the evidence may not be used as

evidence of the defendant’s actions or intent.      Id. at 292.

                                 43
Through a limiting instruction, the jury should be told the

permissible and prohibited purposes of the evidence.     Cf. State

v. Cofield, 127 N.J. 328, 341 (1992).

    In light of those concerns, the better practice to be

followed, whether requested or not, is to tailor the charge on

how to use the state-of-mind evidence to the facts and to tell

the jury how the evidence may be used and how it may not be

used.    For example, the court here could have told the jury that

the state-of-mind evidence -- Jody’s fear of defendant –- was

relevant to the issue of whether Jody voluntarily went to the

edge of a cliff with defendant.    State-of-mind evidence bears on

how Jody likely acted on the night of her death.    Ultimately,

the inferences concerning how Jody’s state of mind affected her

conduct were for the jury to draw.     Moreover, to deflect risk

that the jury might misperceive the limited use to which it may

put such evidence, a limiting instruction should be provided at

the time the evidence is presented, as well as at the close of

the evidence when the jury charge is delivered prior to

deliberations.   See State v. Winder, 200 N.J. 231, 256 (2009)

(noting importance of “prompt” limiting instruction at time

evidence is admitted in addition to at time of closing

instruction); State v. Lykes, 192 N.J. 519, 537 (2007) (noting

same).   The pointed and immediate direction to the jury as to

the limited permissible use of such evidence will protect

                                  44
defendants while underscoring for the proponent of the testimony

the permissible use for which it is advanced.

                              VI.

    The judgment of the Appellate Division is reversed.   The

matter is remanded for consideration of defendant’s unaddressed

appellate arguments.


     CHIEF JUSTICE RABNER; JUSTICES ALBIN, FERNANDEZ-VINA and
SOLOMON; and JUDGE CUFF (temporarily assigned) join in JUSTICE
LaVECCHIA’s opinion. JUSTICE PATTERSON did not participate.




                               45
