by Douglas Ankney

The United States Court of Appeals for the Third Circuit ruled that where a state prosecutor flooded the jury trial with evidence of defendant Kelvin Rosa’s prior bad acts, his defense attorney was ineffective for failing to seek contemporaneous limiting instructions and for failing to object when evidence went beyond the limited purpose for which it was introduced.

Background

The State charged Rosa with multiple felonies, including burglary and attempted murder, in relation to a burglary of a check-cashing store and the shooting of the police officer who responded. But at Rosa’s jury trial, the prosecutor sought to admit evidence of Rosa’s other crimes in order to prove that Rosa had possessed a Sig Sauer 9 mm pistol that was recovered along the roadside after a high-speed police chase that resulted in Rosa’s arrest.

While the police chase had occurred four months after the burglary, testing of the pistol confirmed it was used in the shooting of the police officer. The prosecutor wanted to admit evidence at Rosa’s trial that: (1) Rosa’s codefendant, Mariano Nunez, was the driver of the vehicle chased by police on the night of Rosa’s arrest, (2) Nunez told police he and Rosa had burglarized multiple stores together, (3) one of those burglaries was of a beef-distribution plant where Rosa had stolen the Sig Sauer, (4) Nunez stated Rosa had shot and injured the officer at the burglary of the check-cashing store with the stolen Sig Sauer, (5) Nunez told police that on the night of the police chase Rosa had cocked the Sig Sauer and stated he intended to shoot a police officer, and (6) Nunez stated it was Rosa who tossed the pistol out the car window on the night of the police chase.

Under New Jersey law, prior-bad-acts evidence is typically excluded as unduly prejudicial under N.J. R. Evid. 404(b), but it may be admitted for non-propensity purposes, such as proving identity. State v. Cofield, 605 A.2d 230 (N.J. 1992). At a pretrial hearing, the judge ruled that the prior-bad-acts evidence could be admitted only for the purpose of linking Rosa to the gun, the burglary of the check-cashing store, and the shooting. However, the judge ruled that any evidence of Rosa’s intent to shoot a police officer during the chase was excluded, and if any such evidence was introduced, the judge would declare a mistrial due to its prejudicial nature. The judge further noted that the crimes were not similar in nature and thus could not be used to infer that the same person committed both, as they were not “signature crimes” under State v. Fortin, 745 A.2d 509 (N.J. 2000).

Rosa’s initial trial ended in a hung jury. The State elected to retry Rosa, and a new judge adopted the former judge’s pretrial rulings limiting the prior-bad-acts evidence. Right before the jury entered the courtroom at the retrial, Rosa’s lawyer attempted to stipulate to the identity of the gun, conceding that the recovered firearm was the one used in the shooting, but the State argued it still needed the evidence to link Rosa personally to the gun’s possession. The trial judge agreed with the State, rejecting the stipulation and allowing the evidence for that limited purpose.

But at trial, the prosecutor told the jury in his opening statement that “the case against Rosa began not with the check-cashing store burglary but ‘actually began the day before,’ when Rosa had burglarized the beef distributor.” The prosecutor presented testimonial evidence from police officers along with photographs to show that the burglaries of the two businesses were similar, e.g., the manner in which the doors were pried open, the cutting of the electrical and phone lines at both businesses, and the removal of the alarm boxes at both businesses. The prosecutor also presented testimonial evidence from police about the cash and property stolen from the beef-distribution business that went far beyond testimony concerning the stolen Sig Sauer. This prior-bad-acts evidence exceeded the purpose and limitations of the judge’s pretrial order, but defense counsel failed to object.

Nunez then testified, telling the jury that Rosa belonged to a “burglary ring” led by Nunez; that all of these burglaries were “done the same way” by “cut[ting] the alarms” and “peeling back doors with a crowbar.” Again, defense counsel failed to object.

The prosecutor then questioned Nunez about the burglary for which Rosa was on trial. Nunez explained he picked the check-cashing store because it fit the profile of the previous burglaries and stated that “his crew had done this job just like the others,” “cut the wires to the alarm,” “used a crowbar,” and “pr[ied] the door open.” Nunez testified Rosa was there with the gun Rosa had stolen the night before. Nunez told the jury the burglary ended when he heard gun shots and ran outside to find Rosa reloading while admitting to shooting an approaching police officer.

Nunez then began discussing yet another burglary, telling the jury that on the night of the police chase he and Rosa were burglarizing a cellphone store “using the same procedures” when they heard police approaching. At this point, defense counsel finally objected, arguing the testimony was not relevant to the identity of who had possessed the Sig Sauer. The judge ultimately sustained the objection after initially overruling it and allowing some testimony to continue, reasoning that while background on the cellphone-store burglary could help identify Rosa as the gun’s possessor, the jury did not need all the details.

Nunez also testified that when police approached them on the night of the burglary of the cellphone store, Rosa had cocked the pistol. Despite the fact that the judge at the first trial had ruled that any evidence of Rosa’s intent to shoot a police officer would be so prejudicial as to result in a mistrial, defense counsel again neither objected nor requested a limiting instruction. The trial court did issue a limiting instruction at the end of the trial, as well as before one witness’s testimony, directing the jury on the proper use of the prior-bad-acts evidence.

The State also presented testimony from the officer who arrested Rosa in the Dominican Republic after he fled there while on bail. She stated that Rosa admitted firing a weapon but claimed he had not injured anyone. After the State rested, Rosa’s counsel moved to dismiss, arguing the evidence of the cellphone-store attempted burglary and police chase was unduly prejudicial, but the judge denied the motion.

Rosa testified in his own defense, denying involvement in any burglaries or the shooting, offering an innocent explanation for the police chase (claiming he was en route to a construction job with Nunez, who evaded police due to license and insurance issues) and suggesting Nunez was framing him over a personal grudge involving Nunez’s girlfriend.

The jury convicted Rosa of all charges, and he was sentenced to 30 years’ imprisonment. His judgment was affirmed on appeal. Rosa filed state habeas, alleging ineffective assistance of counsel for neither objecting to the prior-bad-acts evidence nor seeking limiting instructions. The state habeas court denied his petition, reasoning that Rosa’s counsel had objected to all of the prior-bad-acts evidence at the pretrial hearing.

Rosa then filed a pro se habeas petition in the U.S. District Court for the District of New Jersey, raising the same issues. The District Court granted habeas relief, ruling that the State habeas court had unreasonably applied Strickland v. Washington, 466 U.S. 668 (1984), which establishes that ineffective assistance of counsel claims require showing both deficient performance by counsel and resulting prejudice to the defendant. The State timely appealed.

Analysis

The Court observed “[t]o prove ineffective assistance of counsel, Rosa must show both that (1) his trial counsel performed deficiently and (2) as a result, he suffered prejudice.” Strickland. On federal habeas review, courts must defer greatly to the state habeas court’s conclusion that Rosa could not prove these two elements. This deference stems from the Antiterrorism and Effective Death Penalty Act (“AEDPA”), which requires federal courts to presume that the state court’s factual findings are correct unless rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Additionally, relief may be granted only if the state court’s legal ruling was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” § 2254(d)(1). Because Strickland constitutes clearly established federal law, the issue is whether the state habeas court applied it unreasonably, the Court noted. Williams v. Superintendent Greene SCI, 112 F.4th 155, 167 (3d Cir. 2024).

The Court explained that Strickland’s first prong – deficient performance – requires showing that counsel’s representation fell below “an objective standard of reasonableness” under “prevailing professional norms.” Strickland. Courts must evaluate this from counsel’s perspective at the time, avoiding hindsight bias, and presume that decisions were sound trial strategy unless proven otherwise. Id. The second prong – prejudice – requires a “reasonable probability” that, but for counsel’s errors, the result would have differed, undermining confidence in the outcome. Id. Under AEDPA, review of counsel’s performance is “doubly deferential”: first to trial counsel’s strategic choices and second to the state court’s assessment of those choices. Knowles v. Mirzayance, 556 U.S. 111 (2009).

Turning to the present case, the Court concluded that, even when giving the required deference to the state court and to defense counsel, the state habeas ruling “cannot reasonably be justified” under Strickland. Rosen v. Superintendent Mahanoy SCI, 972 F.3d 245 (3d Cir. 2020). The Court explained that the state habeas court had failed to consider “whether counsel should have asked for a limiting instruction after the court overruled his objection and admitted the evidence. [The state habeas court] also failed to consider whether counsel should have objected later when the testimony exceeded the allowed purpose.” There is no room for “fair-minded disagreement” that this incomplete analysis disregarded prevailing professional norms and unreasonably applied Strickland’s deficiency standard, the Court reasoned. Harrington v. Richter, 562 U.S. 86 (2011); see Medina v. Diguglielmo, 461 F.3d 417 (3d Cir. 2006).

“[T]he fact that evidence is admissible does not decide the question whether a limiting instruction should still have been requested by counsel.” Albrecht v. Horn, 485 F.3d 103 (3d Cir. 2007). This is because “[p]rior-bad-acts evidence is highly prejudicial.” Old Chief v. United States, 519 U.S. 172 (1997). “It primes juries to draw a forbidden inference: ‘[B]ecause he did it before, he must have done it again.’” Breakiron v. Horn, 642 F.3d 126 (3d Cir. 2011). It is doubly dangerous when it reveals that the defendant previously committed the very kind of crime for which he is on trial. Id.

The Court noted that both federal and New Jersey law prohibit prior-bad-acts evidence to prove propensity or character but allow it for limited non-character purposes, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. N.J. R. Evid. 404(b)(2); Fed. R. Evid. 404(b)(2). However, “New Jersey courts strictly limit how it may be presented.” State v. Gillispie, 26 A.3d 397 (N.J. 2011). For instance, when offered to prove identity, the evidence goes too far if the jury is “exposed to detailed testimony” about the nature of the prior bad act while hearing proof of identity, as the admission of such details is “unduly prejudicial and … not outweighed by any probative value.” Id. Even when admitted for a permissible purpose, a party may not layer on extra details that do not serve that purpose. Id. Additionally, in New Jersey, the jury must get timely and tailored limiting instructions – “both when the evidence is admitted and in the final charge” – to focus it on that limited purpose. Id.; see also Gov’t of Virgin Islands v. Toto, 529 F.2d 278 (3d Cir. 1976) (requiring stringent instructions for Rule 404(b) evidence in federal court at the time of reception).

Each “instruction should be formulated carefully to explain precisely the permitted and prohibited purposes of the evidence, with sufficient reference to the factual context of the case to enable the jury to comprehend and appreciate the fine distinction to which it is required to adhere.” Gillispie. New Jersey law treats timeliness and tailoring as critical to making limiting instructions effective, as non-contemporaneous or insufficiently specific instructions may fail to mitigate prejudice. See id.; State v. Blakney, 912 A.2d 140 (N.J. 2006) (holding limiting instruction insufficient in part because it was not “contemporaneous”). Counsel is not always “constitutionally required” to object each time the prosecution presents Rule 404(b) evidence beyond its limited purpose or to “request a limiting instruction any time one could be given.” Albrecht. Rather, counsel’s duties depend on the context. Courts presume that counsel’s silence was sound trial strategy; sometimes, silence is the right call to avoid “highlighting” fleeting prejudicial material. Buehl v. Vaughn, 166 F.3d 163 (3d Cir. 1999); see Strickland. But when the Rule 404(b) evidence is not fleeting but floods the state’s case, counsel’s silence cannot reasonably be described as strategic, the Court stated. Albrecht.

In the present case, the Court determined that the state prosecutor “flooded the case” with prior-bad-acts evidence. Defense counsel performed deficiently in two ways: (1) counsel failed to seek a limiting instruction when the permitted prior-bad-acts evidence was presented to the jury, and (2) counsel failed to object when prior-bad-acts evidence was presented that went beyond the limited purpose of proving identity. Gillispie. Specifically, to prove the gun’s identity, the prosecution needed only testimony that Rosa stole it in the first burglary and possessed it at the attempted third, without details of the heist plans, according to the Court. Id. Instead, it detailed the beef-distribution burglary’s execution, likened it to the charged crime, and included vivid police testimony and Nunez’s explanations of planning – all extraneous and prejudicial, blurring crimes and suggesting propensity.

Counsel objected later to cellphone-store details but failed throughout earlier testimony. Even if within bounds, the Court stated that the evidence risked severe prejudice without timely, specific instructions, and there was no downside to requesting them because they would not highlight fleeting evidence. Albrecht. No valid strategic reason justified inaction, especially since counsel knew the evidence was objectionable, the Court concluded. Rejecting a contrary view that silence was tactical because the defense theory denied the prior acts, the Court noted that inaction undermined the theory: effective counsel should have objected or sought instructions to mitigate harm, as this was key to the defense, not tangential. Workman v. Superintendent Albion SCI, 915 F.3d 928 (3d Cir. 2019); see United States v. Gray, 878 F.2d 702 (3d Cir. 1989) (performance sometimes too woeful for strategic label); Roe v. Flores-Ortega, 528 U.S. 470 (2000) (defer only to reasonable tactics).

Finally, the Court determined that the state habeas court incorrectly concluded that Rosa was not prejudiced. No physical evidence linked Rosa to the crime. Nunez or any one of the other men in his “crew” could have fired the gun at the officer. The State’s properly admitted evidence against Rosa was weak as demonstrated by the first trial ending in a mistrial. “Prejudice” under Strickland requires only a showing that counsel’s deficient performance undermined confidence in the jury’s verdict, considering all evidence. Strickland (errors more likely prejudicial if state’s case is weak). Here, the Court noted that ballistics matched the gun but not the shooter; Nunez had incentives to blame Rosa (evading murder charge, sentence discount); and other evidence showed consciousness of guilt but not specific intent for burglary or attempted murder. N.J. Stat. Ann. § 2C:18-2; State v. Rhett, 601 A.2d 689 (N.J. 1992).

The hung jury signaled closeness, according to the Court. Bey v. Superintendent Greene SCI, 856 F.3d 230 (3d Cir. 2017). Two belated, boilerplate limiting instructions were inadequate: they came after hours of evidence and lunch break, risking indelible prejudice, and were not tailored (e.g., ignored barred gun-cocking testimony, which could imply habit of shooting cops), the Court explained. United States v. Caldwell, 760 F.3d 267 (3d Cir. 2014); Blakney; State v. Stevens, 558 A.2d 833 (N.J. 1989) (prejudicial nature doubts jury’s ability to follow even precise instructions). The Court stated that prejudice is context-dependent, and here – given astonishing volume/severity of evidence and thin guilt proof – it created a reasonable probability of a different result.

Conclusion

The Court ruled that the state habeas court’s ruling was an unreasonable application of Strickland. Accordingly, the Court affirmed the District Court’s grant of habeas relief. See: Rosa v. Attorney General of New Jersey, 141 F.4th 477 (3d Cir. 2025).  

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