EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Sunday, February 17, 2008

Atlantic City: Judge Rules Modus Operandi Evidence Admissible In Parking Lot Robberies

The prosecution will be able to present evidence of two similar acts in a New Jersey man's trial for robbing and killing an 87 year-old woman.  Allegedly, at about 1:00 P.M. on August 11, 2006, Robert Shaver left his home in search of a senior citizen to rob.  He then drove to a ShopRite in Atlantic City, hung out in the parking lot, and saw 87 year-old Mildred Petrone, a frail, petite woman, get out of a car.  Shaver then approached Petrone and yanked her purse away with such force that her neck broke.  Five days later, Petrone died in the hospital from her injuries.

The prosecution sought to introduce evidence relating to to other alleged robberies committed by Shaver:  (1) Shaver allegedly attacked 79 year-old Phyllis Cosulich and stole her purse near the same ShopRite, and (2) Shaver allegedly robbed 65 year-old Irene Ruzzo at gunpoint as she left Giovanni's Best of Italy restaurant

Under New Jersey Rule of Evidence 404(a), "[e]vidence of a person's character or a trait of his character, including a trait of care or skill or lack thereof, is not admissible for the purpose of proving that the person acted in conformity therewith on a particular occasion."  Thus, the prosecution could not use Shaver's alleged other crimes to prove that he had propensities to be violent/thieving and that he acted in conformity with these propensities when he violently robbed Petrone.

However, under New Jersey Rule of Evidence 404(b), evidence of other crimes, wrongs, or acts are admissible for other purposes such as proving common plan or scheme/modus operandi.  In other words, Shaver's other robberies could be admissible to prove that he had a common plan of lying in wait for elderly women in parking lots and violently robbbing them.  This is exactly the theory under which the judge allowed for the admission of the other acts, concluding that, "The modus operandi for all three (incidents) is strikingly similar."



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