STATE OF NEW JERSEY v. FRED NEULANDER
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-3616-02T43616-02T4
STATE OF NEW JERSEY,
Argued October 23, 2006 - Decided
Before Judges Lintner, Seltzer and
On appeal from the Superior Court of
New Jersey, Law Division, Camden County,
Robert L. Sloan, Assistant Deputy Public Defender argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Mr. Sloan, of counsel and on the brief).
James P. Lynch, Special Deputy Attorney General, Acting Camden County Prosecutor, argued the cause for respondent (Mr. Lynch, attorney and of counsel; Roseann A. Finn, Special Deputy Attorney General, Acting Assistant Prosecutor, of counsel and on the brief).
On November 20, 2002, following a second guilt phase trial, a jury convicted defendant, Fred Neulander, a former Senior Rabbi at Congregation M'Kor Shalom in Cherry Hill, of capital murder of his wife, Carol Neulander, N.J.S.A. 2C:11-3a(1); felony murder, N.J.S.A. 2C:11-3a(3); and second-degree conspiracy to commit murder, N.J.S.A. 2C:5-2. On November 22, 2002, the jury was unable to reach a unanimous verdict on the death penalty. Defendant was thereafter sentenced to life imprisonment with a thirty-year parole disqualifier.
Defendant appeals, citing various trial errors. Specifically, he raises the following points on appeal:
THE IMPROPER RESTRICTION OF CROSS-EXAMINATION OF LEONARD JENOFF AND OTHER EXPLORATION OF THE DETAILS OF A POLICE INVESTIGATION INTO HIS INVOLVEMENT IN ANOTHER MURDER, OFFERED TO IMPEACH HIS TESTIMONY AGAINST DEFENDANT, INFRINGED DEFENDANT'S RIGHT TO CONFRONT WITNESSES AND PRESENT A DEFENSE AND HIS RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10.
THE TRIAL COURT'S DECISION TO ALLOW A CRITICAL DEFENSE WITNESS TO TESTIFY IN PRISON GARB DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10. (Not raised below.)
THE ABSENCE OF A LIMITING INSTRUCTION CONCERNING THE GUILTY PLEAS ENTERED BY ALLEGED ACCOMPLICES AND THE REFUSAL OF A "FALSE IN ONE, FALSE IN ALL" INSTRUCTION ON CREDIBILITY DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10. (Raised in part below.)
THE INTRODUCTION OF OTHER CRIMES EVIDENCE (DEFENDANT'S ALLEGED REQUEST TO HAVE A WITNESS KILLED) WITHOUT A LIMITING INSTRUCTION VIOLATED DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10. (Not raised below.)
IMPROPER CROSS-EXAMINATION OF DEFENDANT CONCERNING WHETHER STATE'S WITNESSES HAD ANY REASON TO TESTIFY FALSELY DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. ART. I, PARS. 1, 9, 10. (Not raised below.)
We reject defendant's contentions and affirm.
Carol Neulander, defendant's wife of twenty-nine years and the mother of his three children, Rebecca, Matthew, and Benjamin, was found bludgeoned to death in her home on Tuesday evening, November 1, 1994. Leonard Jenoff and Paul Daniels confessed to the killing.
In December 1992, defendant began an affair with Elaine Soncini, a radio broadcaster in the Philadelphia area. When Soncini's Jewish husband was dying, defendant visited the hospital to pray for him and to comfort Soncini. He also arranged and officiated at Soncini's husband's burial on December 13, 1992. As Soncini was leaving the cemetery, defendant asked her if he could call her. She agreed. Defendant called Soncini that night.
A couple days later, defendant called Soncini and asked her to lunch. Soncini invited defendant to lunch at her home. On December 21, 1992, defendant went to Soncini's home for lunch and stayed for a few hours. Upon leaving, defendant asked if he could kiss Soncini. She replied affirmatively and defendant gave Soncini several "romantic" kisses on the mouth and told her he wanted to see her again. On December 24, 1992, defendant again went to Soncini's home where they engaged in sexual relations.
By the end of 1993, defendant was seeing Soncini every day, engaging in almost daily sexual relations, and speaking on the telephone five to ten times a day. Defendant's office door had a dead bolt lock and he and Soncini would have sex in the locked office. When defendant visited Soncini's home, he would hide his car in the garage.
In March 1994, Soncini converted to Judaism and joined Congregation M'Kor Shalom. Defendant started to become jealous that Soncini dated other men. In the summer of 1994, Soncini realized that she did not want to continue the relationship because they could not go out in public together. She told defendant that she was going to move on to a new life "come January 1st of 1995." Defendant, however, cried and begged her to stay. They dreamed about what their lives could be like together if defendant were not married. Nevertheless, defendant told her that he would be fired from the synagogue if his adultery was discovered. Defendant was aware that Soncini earned a substantial salary and had inherited over one million dollars from her husband.
When Soncini told defendant that she was leaving him by the end of December, defendant told her to "just hang in there, trust me," and that he was going to be with her by her birthday on December 17, 1994. Defendant also told Soncini that a divorce would be too difficult for his children and the synagogue, and that he wished Carol's car would go into the river and she would be "gone, poof." Defendant said "he dreamed that violence was coming to Carol" and predicted that "it was going to be a tumultuous fall."
On the morning of November 2, 1994, Soncini was at the radio station when she heard that Carol had been murdered the night before. At 8:30 a.m. that day, defendant called Soncini and told her he did not want to lose her. A few weeks after Carol's murder, defendant reminded Soncini that he had told her to "trust" him. They resumed their sexual relationship shortly after Carol's death.
On November 10, 1994, defendant asked Soncini to marry him "as soon as appropriately possible." Defendant also told Soncini that the police investigation into Carol's murder was "getting crazy" and that they would likely question her. Defendant instructed Soncini not to tell the police about their affair and to say instead that he was merely her rabbi who had helped her through her husband's death and her conversion to Judaism.
As instructed, when Soncini first spoke to the police on December 5, 1994, she did not expose their affair. During the interview, the police told Soncini that defendant was having simultaneous affairs with other women. The next day, Soncini told defendant that she did not want to lie anymore and that she was going to talk to the police. Defendant told Soncini to wait until he could hire a lawyer for her. However, Soncini went to see her own lawyer, who arranged for her to meet with the police the next day. Defendant called Soncini after she spoke to the police to advise her that he had an attorney for her. When Soncini explained that she had already spoken to the police and admitted to having an affair with him, defendant became silent. Soncini ended the affair.
Leonard Jenoff, forty-seven years old and a recovering alcoholic who had recently separated from his second wife, met defendant for the first time in June 1993. Jenoff had sought counseling for his low self-esteem. At the time, his house had been in foreclosure and his application for financial assistance had been rejected by Jewish Family Services. At their first meeting, Jenoff told defendant about his background. As he did throughout his entire life, Jenoff lied about having a college degree and about being previously employed for years with the Baltimore Police Department and the Central Intelligence Agency (CIA). Jenoff also bragged that he was involved in the Iran-Contra affair and that he was an expert in debugging countermeasures. According to Jenoff, he created a false background for himself because it was exciting and he had always suffered from low self-esteem. The meetings continued and Jenoff began attending Friday night services at defendant's invitation. Defendant made Jenoff feel important and, according to Jenoff, gave him back his self-esteem and self-respect. Jenoff described defendant as "my mentor, my friend, and my Rabbi."
Meanwhile, Jenoff had been attending Alcoholics Anonymous (AA) meetings on a daily basis. Starting in March 1994, AA meetings were held at M'Kor Shalom every Tuesday night from 7:00 p.m. to 8:00 p.m. Jenoff would arrive at the synagogue around 5:00 p.m. to set up for the meetings and to see defendant. They would walk together around the synagogue's parking lot. According to Jenoff, they would talk about a variety of topics, including Jenoff's passionate desire to work for the Mossad, the Israeli equivalent of the CIA.
In March or April 1994, defendant asked Jenoff if he would "kill for the State of Israel." Jenoff answered that he would. Jenoff explained that defendant became the most important person in his life, other than his own son. When Jenoff thanked defendant for "everything . . . he was doing" for him, defendant responded, "maybe some day you could do a favor for me." Jenoff told defendant he would do anything he asked.
In late April 1994, defendant again raised the topic of Israel and told Jenoff that an evil "enemy to the State of Israel" lived in Cherry Hill. Defendant explained that this person was "so bad" and should be "killed." A week later, in early May 1994, they again discussed this "enemy of Israel," at which time defendant looked at Jenoff and asked if he was "man enough to kill" the enemy. Defendant grabbed Jenoff's elbow and asked, "am I talking to the right person?" Jenoff stated that he was scared, but said "yes, Rabbi." Defendant then drove Jenoff to his home and said the person he wanted him to kill was his wife, Carol. In subsequent meetings, defendant and Jenoff discussed Carol's murder. Defendant repeatedly asked Jenoff if he would kill her and Jenoff agreed that he would. Jenoff testified that he was afraid to say no for fear of losing his relationship with defendant. According to Jenoff, defendant said "he wanted to come home one night and find his wife dead on the floor." Defendant told Jenoff that he would pay him $30,000 and would get him a job with the Mossad.
Defendant and Jenoff discussed the details of Carol's murder, including when, how, and where. Jenoff claimed that defendant wanted Carol murdered immediately. Various methods were discussed and ruled out, including: using a gun to kill Carol and wound defendant outside a New York City theater; using a stun gun; using a knife; killing Carol in the parking lot of the Short Hills Mall; and shooting Carol in Camden, where she went to bi-monthly community service meetings.
By early June 1994, defendant decided that he wanted Carol's murder to occur in their home on a Tuesday night. Defendant explained that he could be at the synagogue, which would provide him an alibi, and his son Matthew would not be home because he worked on Tuesday nights as an EMT. Defendant said that it was the best time and place because it would look like a robbery or burglary, as long as Jenoff "did it right." He told Jenoff not to use a knife, as it would look "too professional," suggesting that he use a blunt instrument so that it would look like a robbery "gone awry." Although defendant wanted Carol killed immediately, Jenoff maintained that they "wait until the Fall" when it would get dark earlier. Defendant agreed.
In July or August 1994, Jenoff suggested to defendant that he get another person to help with the crime. Defendant told Jenoff that he would have to pay the other person out of the $30,000. In August or September, Jenoff asked his twenty-one-year-old roommate, Paul Daniels, to assist with Carol's murder. Daniels abused drugs and alcohol and was on medication for psychiatric problems. Jenoff offered Daniels $7500. Daniels asked no questions and agreed to do the job.
In late September or early October, defendant met Jenoff in the parking lot of the Sheraton Post Hotel (the Sheraton) in Cherry Hill. Defendant handed Jenoff a manila envelope containing $7500 in cash, stating it was "the first down payment for killing my wife." Jenoff took $3750 in small bills, put them in a brown lunch bag, and gave it to Daniels. Daniels jumped out of his chair, shouting "[t]he bitch is dead. The mother fucker is serious about killing his wife."
Defendant provided Jenoff with a hand drawn map of the interior of his house and told him to make the murder look like a robbery. Defendant explained that Carol kept a burgundy purse with cash in it that she brought home from the Classic Cake Company, a bakery she established and later sold, but still managed. Defendant told Jenoff to take the purse but not Carol's diamond ring. He also told Jenoff not to ransack the house, not to go upstairs, and not to ruin the furniture. Defendant told Jenoff, "make sure when I come home I find her dead."
At about 5:30 p.m. on October 25, 1994, Jenoff went to his AA meeting at M'Kor Shalom and told defendant that everything was arranged for that night. Defendant had placed a dead light bulb in the front porch light so that it would be dark. At about 8:00 p.m., Jenoff met Daniels, and the two drove to defendant's home. Jenoff and Daniels were dressed in dark clothes, had a lead pipe to use as a weapon, and a plain envelope to use as a delivery decoy.
When they arrived, Carol was sitting in her car talking on the phone. Jenoff knocked on the window. Carol rolled down the window and asked Jenoff what he wanted. Jenoff said he had a package for defendant. Carol said defendant was not home but invited Jenoff to follow her into the house. However, once inside the house, Jenoff could not locate the burgundy purse. He asked to use the bathroom so he could look around the house for the purse. When he could not find it, he knew that he could not kill Carol. Jenoff gave Carol the empty sealed envelope and told her to give it to "the Rabbi." Carol invited Jenoff to wait for defendant to get home, but Jenoff declined and quickly left the house.
The next day, Jenoff met defendant at the Sheraton parking lot. Defendant was enraged. He grabbed Jenoff by the collar and demanded, "What the fuck happened?" Jenoff explained that he could not find the purse and "chickened out." Defendant screamed at Jenoff that he had paid him $7500 to kill his wife and he "better fucking kill her [next Tuesday] or I'll kill you. And if you don't believe me test me."
The following Tuesday, Jenoff went to the synagogue for his AA meeting and told defendant, "it will be" tonight. At about 8:30 p.m., Jenoff excused himself, left the synagogue, and met Daniels. Meanwhile, defendant attended Rabbi Mazo's confirmation class where he remained until 9:00 p.m. According to Mazo, defendant rarely observed his classes and was "unusually boisterous" that night. Defendant also made an unexpected and rare visit to Cantor Anita Hockman's choir practice where he again exhibited animated behavior.
Shortly after 8:30 p.m., Jenoff and Daniels arrived at the Neulander home and parked Jenoff's car around the corner. Jenoff hid a lead pipe in his back pants pocket, under his jacket, and walked to the front door with Daniels. Jenoff knocked on the glass door and saw Carol approaching the door while talking on a portable telephone. Jenoff greeted Carol and asked if defendant was home. Carol invited Jenoff into the house. Daniels waited outside. After Carol finished her telephone conversation, Jenoff followed her into the living room. As he followed, he placed his left hand on Carol's shoulder so that she could not turn around. With his right hand, he reached for the lead pipe and smacked Carol on the back of her head. Jenoff testified that Carol's knees buckled, she fell to the floor and said, "why, why?"
Daniels came into the house and took the lead pipe from Jenoff. Carol lay on the floor, bleeding from her head, while Daniels repeatedly hit her head with the lead pipe. Jenoff found the burgundy purse and went back into the living room to make sure Carol was dead. Jenoff saw blood gushing from Carol's head, ears, and nose. He also heard a hissing and gurgling sound coming from her. Jenoff and Daniels left.
Jenoff put the lead pipe and their bloody clothes in a duffle bag in his car. He removed about $125 from the purse. Later that night, Jenoff disposed of the bloody clothes and the murder weapon in a dumpster at a store near the Cherry Hill Mall. Jenoff then drove to Philadelphia and disposed of the burgundy purse in a dumpster.
Testimony given by Daniels concerning the murder essentially tracked that given by Jenoff. According to Daniels, Jenoff first approached him about killing the wife of a vending machine man. He later learned from Jenoff that it was Rabbi Neulander's wife. Daniels claimed that he struck the victim twice with a pipe. Jenoff gave him $100 from the purse and dropped him off at the same parking lot where he had picked him up before the murder. Daniels described meeting defendant at the funeral home after the murder. Defendant hugged him and asked him if he was all right.
Ten to fifteen days before the murder, defendant was playing racquetball with his friend, Myron "Peppy" Levin. Defendant knew Levin had been convicted on federal charges and served time in prison. Levin testified that during one racquetball game, defendant seemed distracted, causing Levin to inquire what was wrong. According to Levin, defendant threw his racquet on the ground and said, "I wish I could come home to find my wife dead . . . spread out on the floor." Levin told defendant that he was "fucking crazy," because he had "a wonderful wife . . . a lovely family . . . everything made for [him]." Defendant then asked Levin if he "knew anybody that could do it." Levin answered, "ain't no way, leave me alone." After leaving the gym, Levin told his driver, Anthony Federici, that defendant wanted "to come home and see his wife dead on the floor." Federici testified that he was "awe struck" and "didn't know what to say" when Levin told him what defendant had said.
When he was first questioned by the police, Levin did not refer to defendant's remarks to him about Carol. In a formal statement given in March 1995 and again in testimony given to the grand jury, Levin denied that defendant asked if Levin knew anyone who could kill his wife. He conceded that he told the police about the conversation after he learned that a Warsaw Torah that defendant arranged to purchase with $20,000 Levin donated was worth only $2000 to $3000.
At some point in 1994, before the murder, Levin told his girlfriend, Cynthia Sharp Myers, an attorney, that defendant had told him he wanted to find his wife dead and had asked him if he knew anyone who could help him. In 1995, Myers was approached by the police, at which time she denied the conversation. However, in October 1997, she met with a representative of the Camden County Prosecutor's Office and gave a sworn statement regarding the conversation she had previously denied. Myers explained that she first denied the conversation because she was surprised and did not take it seriously. At the time of the trial, an ethics complaint was pending against Myers.
In December 1994, after Carol's murder, Levin told his attorney, Jamie Kaigh, that defendant told him that he would like to come home and find his wife dead on the floor. Levin told Kaigh that he was having trouble sleeping because of those comments.
Defendant's daughter, Rebecca, was talking to her mother on October 25, 1994, at about 8:00 p.m., after Carol had returned home from her weekly meeting with the bakery management staff. Carol was in her car in the driveway. While they were on the phone, a man approached the car. Carol told Rebecca that the man was dropping off a letter for defendant. She also told Rebecca that the man wanted to use the bathroom. Although Rebecca expressed concern, Carol told her it was fine and she let the man use the bathroom. Carol called Rebecca back after the man left. Carol found it strange that the envelope was empty.
One week later, on November 1, Carol was again talking to Rebecca when she advised Rebecca that someone was at the front door. Carol told Rebecca that it was "the bathroom guy," and confirmed that she meant the same person who had been there the week before. She also heard her mother say, "why don't you tell him not to wait outside, it's cold, have him come inside." Rebecca asked her mother whether she wanted her to stay on the phone. Carol again told her it was fine and Rebecca replied that she would call later.
Cherry Hill Police Officer Richard Bumbera responded to defendant's 911 call, arriving at the Neulander home at approximately 9:30 p.m. Bumbera found Carol lying on the floor in a pool of blood. There was no evidence of a break-in, Carol was still wearing her jewelry, there were no objects missing, and the furniture and upstairs rooms appeared intact.
Dr. Matthew Neulander was a pre-med student living at home at the time of the murder. He worked every Tuesday from 7:00 p.m. to 7:00 a.m. as an EMT for Cherry Hill Township. In the fall of 1994, he noticed that his parents' relationship was becoming "increasingly distant." On the night of October 30, 1994, he witnessed a heated exchange between his parents. According to Matthew, Carol told him to say "goodbye" to defendant because he was "leaving the house permanently." Carol, who was upset and crying, then asked defendant if he wanted to try to save their marriage, if he wanted to seek counseling, or if he just wanted a divorce. Matthew testified that defendant answered that he did not want to save their marriage and it was "over." The next morning, Matthew asked defendant whether he was moving out. Defendant refused to answer.
At about 9:00 p.m. on the night of the murder, Matthew heard a radio call to dispatch an ambulance to his home to treat a "bleeding" victim. Matthew drove the ambulance to his home. When he arrived at the house, he saw that all the lights were on and police officers were everywhere. Matthew ran up the driveway, directly passing defendant, who made no effort to stop him or to call out to him. Just outside the front door, two of Matthew's EMT friends grabbed him and physically carried him back down the driveway. Matthew described defendant as looking blank, unemotional, and neatly dressed in business attire. According to Matthew, defendant answered none of his questions and just repeated, "everything is going to be okay." When Matthew realized that Carol was dead, he walked down the street alone. Defendant did not follow him or attempt to comfort him.
Sheila Goodman, president of M'Kor Shalom, received a call advising her of Carol's death. Sheila, her husband, Allen, and Marylee and Stuart Alperin, members of the temple, went to the Neulander home. When Goodman asked defendant what happened, defendant answered, "it was those Colombians" from the bakery, and that they would kill or hurt you for "a nickel." Defendant said that he had warned Carol not to bring money home from the bakery.
In early 1995, Rebecca confronted defendant about his extramarital affairs, and he admitted that he had not been faithful to Carol. He also told Matthew that he had had multiple affairs and was involved in a long-term affair at the time of Carol's death. According to Matthew, defendant told him that he and Carol had had an "agreement" that allowed him to "seek gratification outside of their marriage because he and Mom were sexually incompatible." Matthew testified that this agreement was completely inconsistent with Carol's character.
Defendant explained his extramarital affairs to M'Kor Shalom Associate Rabbi Gary Mazo, Cantor Hockman, the Alperins, and Sheila Goodman by telling them that he and Carol had had a sexually "open marriage." Mazo, Hockman, Marylee Alperin, and Goodman all testified that such an agreement was inconsistent with Carol's character. Defendant initially lied to the police about his extramarital affairs, claiming that we was lucky to have Carol and his marriage was "[g]reat." He later admitted that he lied.
Following Carol's murder, defendant advised Jenoff that he could not pay him directly. Consequently, defendant hired Jenoff as a private detective to investigate Carol's murder so that he could funnel the remaining payments to him. Jenoff submitted bills and received payments from defendant and defendant's defense counsel in varying amounts for the period between March 30, 1995, and October 1998. In August 1997, defendant officiated at Jenoff's wedding. Defendant was arrested in September 1998.
Jenoff confessed on April 28, 2000. On May 1, 2000, Jenoff, wearing a body wire, was enlisted to get a confession from Daniels. For fifteen to twenty minutes, Daniels kept telling Jenoff to "Shhh, Shhh. Don't talk. Don't talk." Eventually, Jenoff was able to get him to agree to confess. On May 5, 2000, Jenoff gave a recorded detailed statement to the police, implicating defendant. Jenoff pled guilty to first-degree aggravated manslaughter on June 1, 2000. Daniels entered his plea to first-degree aggravated manslaughter and robbery seven days later.
Defendant did not testify. The defense focused largely on Jenoff. To explain cash that had been seen in defendant's possession, the defense presented Bruce Aristeo who testified that he repaid a loan from defendant, leaving $5500 in cash at defendant's office in October 1994. Edward Crisonino, an attorney, recalled a conversation with Kaigh, Levin's attorney, in which Kaigh remarked that the prosecutor's office threatened to indict Levin for murder if he did not cooperate.
Chief of Police, Brian Malloy, and retired police detective Richard Rublewski, both of the Cherry Hill Police Department, testified about Officer Lawrence Leaf. Leaf was initially assigned to watch Soncini and later assigned to protect her after she admitted her affair with defendant. During the investigation of Carol's murder, Leaf was seen going through the police files on the case. He and Soncini began dating on December 17, 1994, and were married in June 1995. After Leaf disclosed his relationship with Soncini, Internal affairs investigated him and determined that he had not improperly revealed information to Soncini regarding the Neulander murder investigation.
Richard Plum, a roommate of Jenoff and Daniels, testified that the two were generally broke and that he did not notice them receiving any large sums of money. Isabelle Pearce's transcribed testimony from the first trial was read into evidence. Pearce, a member of the AA group, testified that defendant generally joined the AA group on Tuesday nights and on the evening of the murder defendant helped cut the cake celebrating the group's one-year anniversary.
Jack Reid, a barber, knew Jenoff and testified that Jenoff continued to promote defendant's innocence and never suggested that defendant was involved in Carol's death. Jack Rooney, another acquaintance of Jenoff, testified that Jenoff explained that the upcoming trial would mean television appearances, as well as book and movie deals. According to Rooney, Jenoff turned himself in because he believed he would become a hero and he later believed that he would be interviewed by Barbara Walters.
Nancy Phillips, a reporter for the Philadelphia Inquirer who wrote articles about the murder, testified that Jenoff stated that he enlisted Daniels, who was the person that killed Carol with an eighteen-inch lead pipe. According to Phillips, Jenoff claimed that defendant led him to believe that the victim was a terrorist and an enemy of Israel. Jenoff told Phillips that when he later confronted defendant about his failure to disclose the victim's true identity, defendant said, "you wouldn't have done it."
David Beardsley, who was an inmate in the Camden County jail with Jenoff, testified that he overheard a telephone conversation Jenoff had with Phillips in which Jenoff accused Phillips of double-crossing him because he was supposed to receive immunity from prosecution. Beardsley testified that, when he and Jenoff talked about the murder, Jenoff stated that defendant "had absolutely nothing to do with it," that it was "a robbery gone bad," and that the woman was "killed . . . in the process." Jenoff also told Beardsley that he was involved in a murder of another woman in Camden County. Beardsley also related that Jenoff told him he was supposed to get a deal where he would serve only one year in jail. When speaking to Beardsley about Phillips, Jenoff related that they were lovers and that she promised him a sexual relationship and a Pulitzer Prize.
James Keeny met Jenoff at an AA meeting in the county jail on June 7, 2000. Jenoff told Keeny that defendant "had no clue as to what was being done, that it was a botched burglary." At another AA meeting, Jenoff told Keeny that he gave "this kid" he was with the pipe and told him to keep an eye on the victim while he looked for the money. According to Keeny, Jenoff stated that when he returned he discovered that "the kid snapped" and had beaten the victim to death.
Defendant first contends that the trial judge improperly restricted his cross-examination of Jenoff by not allowing him to ask questions regarding the details of the unrelated December 7, 1995, murder of Janice Bell. Prior to Jenoff's testimony, defendant requested an N.J.R.E. 104(a) hearing to delineate the scope of Jenoff's cross-examination. Three days earlier, a defense investigator interviewed Beardsley in jail. During that interview, despite five prior interviews by a defense investigator in 2000 and 2001, Beardsley mentioned for the first time that Jenoff told him that he had dropped off an unnamed person in front of Bell's house in an attempt to commit a robbery. According to Beardsley, Jenoff drove off because he did not want to park his car in the driveway. Beardsley claimed that Jenoff indicated that he was concerned because he left tire marks when he left Bell's driveway after he picked up his unnamed partner.
Prior to the hearing, the prosecutor gave the defense the complete file on the Bell murder. The file contained photographs of Bell's driveway showing tire tread marks. Reviewing the file, the defense ascertained that two days after Jenoff's arrest for the Neulander murder, the Bell family, upon learning of Jenoff's arrest, contacted the police. The family advised the police that in August or September 1995, Janice's brother Michael had been in court with his then wife, Marge, on a custody issue in their matrimonial case, when Jenoff, who did private investigation work for the law firm representing Janice in her divorce, approached Marge and asked her questions about family members. The defense also learned that Jenoff had approached Bell's family in March 1996, along with a person identified as a self-styled psychic named Porch, and offered his services as a private investigator to investigate Janice's murder. The Bell family paid Jenoff $150 in March 1996 for his services.
The file also revealed that on October 5, 2000, slightly over four months after Jenoff pled guilty to the Neulander murder, Jenoff was interviewed by the police and denied having any knowledge of the Bell murder. He told the police that he was in court with a client on the day of the homicide. Further investigation by the defense, however, established that he was in court the day after the Bell homicide. The file also showed that Jenoff had executed a consent-to-search form in March 2001, allowing the authorities to search his home office for materials related to the Bell homicide. Finally, the defense related that the file also contained an interview with Janice Bell's ex-husband who indicated that he had hired "an unnamed private investigator" to assist him in his divorce from Janice.
Beardsley testified at the N.J.R.E. 104(a) hearing. He testified that Jenoff described the Neulander murder as "a robbery gone bad." Beardsley related that Jenoff told him that he murdered a boy in Baltimore and the Baltimore police covered it up because he was such an important investigator for the police. Beardsley testified that Jenoff was concerned about the tire marks he left on the Bell driveway because they would be traced back to him. He also claimed that he told the news media and prosecutor's office of Jenoff's concerns about the skid marks. He stated that the assistant prosecutor on his case told him at his sentencing to keep his nose out of the rabbi's case.
One of defendant's former attorneys testified concerning his and his partner's decision not to raise the issue of Bell's murder at defendant's first trial. Testimony was given by the defense investigator who obtained the most recent information from Beardsley, as well as the investigator who had interviewed Beardsley five times in 2000 and 2001. Reports of the five earlier interviews, which were co-signed by Beardsley, did not mention anything about Jenoff's participation in the Bell case. The prosecutor on Beardsley's case denied ever threatening Beardsley. Jenoff's defense attorney testified that he was not aware of any police interest in Jenoff involving the Bell case prior to Jenoff's guilty plea on June 1, 2000. He also confirmed that Jenoff entered an open plea and was awaiting sentencing, which was not to take place until after defendant's trial. Daniels' attorney also testified. He allowed an attorney for the Bell family to interview his client. He did not believe Daniels was involved in the Bell murder or that Daniels was a suspect when he entered his plea.
After the hearing, defense counsel argued for the opportunity to cross-examine Jenoff on the information Beardsley imparted about the Bell murder and the contacts Jenoff had with the Bell family in order to show bias and interest on the part of Jenoff, which would affect his credibility. The defense asserted that the potential for a reduced sentence "is a high motivator for [Jenoff] to act in congruence with the wishes of the State in the prosecution of [defendant]." The judge then pointed out that, at the time Jenoff gave his May 5, 2000, statement to the police, implicating defendant, Jenoff was not aware nor did he have any reason to believe that he was under suspicion for the Bell murder because he was not questioned about it until October 5, 2000. The judge acknowledged that the situation would be "very different" if Jenoff "did not make any statement implicating [defendant] until after he had been questioned on the Bell murder." The defense responded that Jenoff's knowledge that he was a possible suspect in the Bell murder should be available to explain any deviation between his May 5, 2000, statement to the police and his testimony in the first trial and the second trial, as well as "to verify the nature and the motivation, any bias and interest [Jenoff] may have in favor of the State."
Defense counsel indicated that he wanted to "alert" the judge and the State to the "potential" that he might seek to discuss the admissibility of the evidence, specifically, Beardsley's testimony, under N.J.R.E. 404(b) when he presented the defense case. However, counsel acknowledged that his proffer, following the 104(a) hearing concerning the scope of cross-examination of Jenoff, was limited to show that Jenoff had "an interest in favor of the State" by permitting inquiry into Jenoff's "aware[ness] of the investigation of him in the Bell case and what anticipation [he had] with regard to the Bell case as it relates to the Neulander case." Counsel then reiterated, "bias and interest as [they] relate to [Jenoff's] credibility are always relevant in a case like this."
Following argument of counsel, the judge agreed with the defense that "bias and interest of a witness [are] always . . . issue[s]" as they can affect a witness's credibility and therefore should be explored by the defense. The judge noted that Jenoff was not interviewed about the Bell homicide until October 2000, several months after he gave his statement on May 5, 2000, implicating defendant in Carol's murder. However, because Jenoff had not yet testified on behalf of the State, the judge found that the Bell investigation was relevant to determining whether Jenoff's trial testimony was influenced by "a bias and an interest in favor of the State." Accordingly, the judge concluded that defendant would be permitted to cross-examine Jenoff on the issue of whether he knew he was "under suspicion" for an unrelated homicide and to what extent it affected his trial testimony.
Agreeing with the State that they were not there "to try the murder of Janice Bell," the judge addressed those areas that could be specifically covered, taking into consideration the need to balance the probative value against the possibility of confusion of issues or undue consumption of time, pursuant to N.J.R.E. 403. The defense responded that it wanted to focus on specific details, including Jenoff's initial contact with the Bell family, his conversations with the prosecutor, his alleged comments to Beardsley about tire tracks, and the photographs of tire marks on the victim's driveway.
Pointing out that those facts sought to be elicited by defendant go to Jenoff's guilt in the Bell murder and not his bias and interest in favor of the State, the judge suggested that the inquiry should focus on what Jenoff "knew or what he thought of, whether he was a possible suspect" in the Bell murder. The judge found that the details of the unrelated homicide did not address the pertinent issue of whether Jenoff had a "bias or interest in favor of the State" that influenced his trial testimony. She declared that the details went to "a far different question" of whether Jenoff was guilty of the unrelated homicide.
Balancing the lack of probative value of the details of the Bell murder against the potential for "prejudice and confusion of [the] issues," the judge determined that the potential for confusion and consumption of time was "enormous." She found that evidence of Jenoff currying favor with the State was far more probative than the more collateral details of the unrelated murder. The judge concluded that the permissible scope of Jenoff's cross-examination was limited to whether Jenoff (1) "ever told Mr. Beardsley that he was involved in committing another homicide," (2) had "any information suggesting that he was the subject of another homicide investigation," (3) "had any concerns or fears that he [would] be charged in connection with the other homicide," (4) "agreed to talk to the police and if so," (5) "to what extent does that interview . . . influence . . . his courtroom testimony" in defendant's case.
Responding specifically to the defense's contention that it should be permitted to offer the evidence of Jenoff's contact with the Bell family and the photographs of the tire marks, the judge stated:
The record is clear. And to reiterate the reason I believe that that testimony should be excluded is because it goes to the issue of whether or not Jenoff is guilty or may be guilty of the Bell murder and that is really not the issue.
The issue here is was he afraid that he would be charged and if so does that give him any bias or interest or does it cause him to shade his testimony in a way to make it more favorable to the State. Therefore, whether he is guilty or not of the Bell homicide has no bearing on that. The only issue is his state of mind. For that reason I believe that those subject matters do run afoul of the Rule.
In his testimony, Jenoff denied telling Beardsley that he was involved in an unrelated homicide. He asserted that he had no information suggesting that he was under investigation for an unrelated homicide when he entered his June 1, 2000, guilty plea. He explained that, although he subsequently learned that his name had come up in another homicide investigation and that he voluntarily talked to the police regarding that investigation, he had no concerns that he would be charged with that homicide. He specifically denied that his interview with the police in October 2000 concerning the unrelated homicide influenced his testimony or in any way caused him to provide additional facts at trial that had not been included in his May 5, 2000, statement to the police.
Prior to offering Beardsley as a defense witness, defendant renewed his application. He asked the judge to reconsider her prior ruling limiting Beardsley's testimony to Jenoff's purported statement about being involved in another homicide. The defense's proffer was limited to "the photographs and the testimony of Mr. Beardsley as it relates to [Jenoff's statements to him concerning the] Bell homicide." Defendant maintained that the tire marks information gave "some meaning and context to the admissions made by Jenoff." Denying defendant's request, the judge stated:
My concern, though, is that if you were to show Mr. Beardsley the photographs or ask him whether there was any information given to him by Mr. Jenoff about having left tire tracks in the driveway, that would be, I guess, offered to show that it was more likely than not that Mr. Jenoff had made the statements which Mr. Jenoff denied making.
If it were to end there, I would agree with you that that would not be a trial within a trial, and would not consume very much time, and it would not have a risk of misleading the jury.
But certainly, if you were to seek to have the jury draw that inference, I think it's reasonable to anticipate that the State would seek to have the jury draw the opposite inference, namely, that Mr. Jenoff made no such statements to Mr. Beardsley.
And therefore, I would anticipate, and in fact [the prosecutor] has indicated, that if you are permitted to get into the tire tracks in the driveway evidence, that the State would seek to present other evidence to negate that. And that is where my concern lies.
Specifically, I am concerned that we would wind up, in effect, trying the other homicide, the Janice Bell homicide, within the confines of this trial. And I don't see any reasonable way to limit you without unfairly limiting the State.
And I am concerned that if the driveway testimony or the tire track testimony is admitted, that will open the gates to much more evidence. And we would, in effect, be trying the Bell homicide.
So for those reasons, I find that there would be a substantial risk of confusing the jury and of undue consumption of time. And for that reason, I find that the probative value of it is substantially outweighed by those two risks.
And again, the issue is not whether or not Mr. Jenoff did or did not commit another homicide. The issue is whether he thought that he might have been under some suspicion; and therefore, the issue of the tire tracks really does not bear upon that.
So for those reasons, I think that the questioning of Mr. Beardsley should be limited to whether Mr. Jenoff told Beardsley that he was involved in another homicide. And I also think that the name of it should not be mentioned. . . .
On appeal, defendant first asserts that he was improperly precluded from exploring the details of Jenoff's alleged participation in the Bell murder, including the circumstances that led the police to interview him as a possible suspect. Defendant argues that excluding Jenoff's comments to Beardsley about the tire tracks, his contacts with the Bell family, and their disclosures to the police after publication of Jenoff's arrest prevented the jury from receiving adequate information about the basis for Jenoff's cooperation and expectations of leniency, and the extent to which the State influenced him. Defendant also maintains that by limiting his inquiry Jenoff was simply able to deny his jailhouse confession to Beardsley who would be viewed by the jury as a "jailhouse snitch seeking to become part of a high publicity case." Defendant posits that the introduction of evidence concerning the tire marks and Jenoff's contacts with the Bell family would have established that he had a "genuine reason to be concerned about the investigation" and would have provided context for his motivation to testify against defendant.
The Sixth Amendment to the United States Constitution and Article 1, paragraph 10 of the New Jersey Constitution guarantee a criminal defendant's right to confront witnesses. The Sixth Amendment right "requires that the accused in a criminal proceeding be given 'a meaningful opportunity to present a complete defense.'" State v. P.H., 178 N.J. 378, 389 (2004) (quoting Crane v. Kentucky, 476 U.S. 683, 690, 106 S. Ct. 2142, 2146, 90 L. Ed.2d 636, 645 (1986)). Thus, one of "the most fundamental of procedural protections afforded a criminal defendant is the right to confront and cross-examine accusing witnesses." Ibid.; see also State v. Budis, 125 N.J. 519, 530-31 (1991).
However, "a defendant's constitutional right to confrontation does not guarantee unlimited cross-examination of a witness." State v. Harvey, 151 N.J. 117, 188 (1997) (citing Delaware v. Fensterer, 474 U.S. 15, 20, 106 S. Ct. 292, 294, 88 L. Ed.2d 15, 19 (1985)), cert. denied, 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed.2d 683 (2000). Under "limited circumstances a trial court may exclude evidence helpful to the defense when exclusion reflects the court's serious concerns about the interests of fairness and reliability." P.H., supra, 178 N.J. at 389. Defense cross-examination, including impeaching evidence, may be limited or excluded if it would result in confusion of the issues or lacks relevancy. Id. at 389-90. "If a compelling reason exists for excluding a particular form of impeaching evidence that outweighs its relevance to a fair evaluation of a witness's credibility, such evidence may be barred." Id. at 390.
Generally, the scope of cross-examination is a matter addressed to the trial judge's discretion. State v. Murray, 240 N.J. Super. 378, 394 (App. Div.), certif. denied, 122 N.J. 334 (1990); see also State v. Silva, 131 N.J. 438, 444 (1993); State v. Petillo, 61 N.J. 165, 169 (1972), cert. denied, 410 U.S. 945, 93 S. Ct. 1393, 35 L. Ed.2d 611 (1973); State v. Wormley, 305 N.J. Super. 57, 66 (App. Div. 1997), certif. denied, 154 N.J. 607 (1998); State v. Sanchez, 224 N.J. Super. 231, 251 (App. Div.), certif. denied, 111 N.J. 653 (1988). Although counsel are customarily afforded considerable latitude in cross-examining witnesses, that range is subject to limits reasonably imposed by the trial judge. State v. Spencer, 319 N.J. Super. 284, 302 (App. Div. 1999) (citing State v. Rose, 112 N.J. 454, 499 (1988)). "It is well-established that the scope of cross-examination is a matter for the control of the trial court and an appellate court will not interfere with such control unless clear error and prejudice are shown." Murray, supra, 240 N.J. Super. at 394.
The right of a party to cross-examine a witness to show bias or interest "does not mean, however, that the cross-examiner has a license to roam at will under the guise of impeaching the witness." State v. Pontery, 19 N.J. 457, 473 (1955). The actual receipt of favorable treatment "is not a sine qua non to appropriate cross-examination" for establishing bias of that witness toward the State. State v. Vaccaro, 142 N.J. Super. 167, 176 (App. Div.), certif. denied, 71 N.J. 518 (1976). "It is as relevant and significant for a defendant to demonstrate the state of mind of the witness based on his subjective reactions to the favorable treatment he may have received or may hope to receive in connection with his own criminal involvement." Ibid. "[A] defendant has a right to explore evidence tending to show that the State may have a 'hold' of some kind over a witness, the mere existence of which might prompt the individual to color his testimony in favor of the prosecution." State v. Parsons, 341 N.J. Super. 448, 458 (App. Div. 2001) (citing State v. Holmes, 290 N.J. Super. 302, 312 (App. Div. 1996)). Where a witness has "a motive to curry favor with the State," the defense must be afforded "the opportunity to probe the witness's self-interested belief in that respect." Ibid.
The judge here focused the inquiry on Jenoff's state of mind and his self-interest. She permitted cross-examination of whether he thought that the police were looking at him as a suspect in the Bell homicide and whether he wanted to curry favor with them by cooperating more in defendant's case, but she did not permit inquiry as to whether Jenoff had actually killed Janice Bell or was involved in her murder. The inquiry into bias was dependent on whether Jenoff knew or believed that he was a suspect in the Bell homicide or that the police were actually looking at him in their investigation, not whether he was actually guilty of the crime.
Under N.J.R.E. 403, a trial court may exclude relevant evidence "if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence." Traditionally, we give substantial deference to a trial court's evidentiary rulings under N.J.R.E. 403. State v. Morton, 155 N.J. 383, 453 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed.2d 306 (2001). However, an appellate court will reverse if it concludes that the excluded evidence "is critical to the defense, as where there was no other available evidence to demonstrate particular defense issues." State v. Scherzer, 301 N.J. Super. 363, 414 (App. Div.), certif. denied, 151 N.J. 466 (1997).
Defendant's purpose in seeking to have the details of the unrelated homicide admitted was to further impugn Jenoff's credibility. In that regard, Jenoff's persistent traits of dishonesty, exaggeration, and self-aggrandizement were candidly admitted in the State's case and subjected to extensive cross-examination by defendant. Defendant had ample opportunity to cross-examine Jenoff thoroughly on interest and bias and to explore the relevant issue of whether the Bell investigation caused him to "add-on" facts to his trial testimony to curry favor with the State. See State v. Engel, 249 N.J. Super. 336, 375 (App. Div.) (limitations on cross-examination were not an abuse of discretion when defendant thoroughly cross-examined the witness and the jury was aware of the reasons for interest and bias), certif. denied, 130 N.J. 393 (1991).
In addition to Jenoff's purported status as a suspect in the unrelated homicide, the jury already knew that he was charged with the murder and conspiracy to commit the murder of Carol Neulander, that he had pled guilty to aggravated manslaughter, that he was exposed to a statutory maximum of thirty years in prison, and that he was not going to be sentenced until after defendant's trial.
The details provided by Beardsley, the photographs of the tire marks, and the information regarding Jenoff's contacts with Bell's family would have, in our view, had a significant potential to confuse the jury by focusing on Jenoff's guilt in the murder of Janice Bell, rather than on the true nature of the inquiry, the reason for his cooperation with the State. We are likewise convinced that the judge appropriately concluded that the details about the Bell investigation sought to be admitted by defendant would have led to undue delay in what was already a complicated trial. Contrary to defendant's contention, the judge correctly determined that a time-consuming mini-trial of the Bell homicide would have occurred had defendant been permitted to offer the excluded evidence.
We are not persuaded by defendant's assertion on appeal that the prosecutor's failure to explain "what his rebuttal of the defense evidence would entail," together with the limited nature of the evidence defendant sought to present, made it difficult to envision a serious prospect for disruption of the trial. There was significant additional evidence that the jury would have had to consider if the challenged evidence had been permitted, namely: (1) Beardsley's five prior interviews with a defense investigator without mentioning the tire tracks; (2) the information that only the defense, and not the police, had investigated Jenoff's alibi for the unrelated homicide; (3) Jenoff's execution of a consent-to-search form allowing the authorities to search his home office for materials concerning the unrelated homicide, and what, if any, information was found during that search; and, of course, (4) Jenoff's denial of any involvement in the unrelated homicide.
We are satisfied that the judge correctly found that the probative value of the evidence sought to be admitted was slight when faced with the prospect that its admission would have necessitated the Bell murder trial being conducted within defendant's trial, which would have resulted in not only undue delay, but confusion on the part of the jury by misdirecting it away from its mandate to determine defendant's guilt. Under these circumstances, the limitations imposed by the judge on the trial testimony of Jenoff and Beardsley did not offend the constitutional safeguards.
Defendant also argues that the evidence of tire tracks, Jenoff's contacts with the Bell family, and details of the Bell homicide should have been permitted as defense evidence of other crimes under N.J.R.E. 404(b). Initially, we note that at oral argument on appeal defendant asserted that trial counsel raised the admission of Jenoff's statements to Beardsley concerning the Bell murder as other-crimes evidence under N.J.R.E. 404(b). Contrary to defendant's contention, the record reflects that defense counsel mentioned that there was a potential that he might seek admissibility of the evidence under N.J.R.E. 404(b) when he presented Beardsley as a witness, but defense counsel never actually made that argument. Thus, defendant never gave the judge the opportunity to rule on the admissibility of the evidence as other-crimes evidence or to perform the appropriate N.J.R.E. 404(b) analysis.
Under the plain error rule, we will only consider allegations of error not brought to the trial court's attention that have a clear capacity to produce an unjust result. R. 2:10-2; State v. Macon, 57 N.J. 325, 337-39 (1971). We generally decline to consider issues that were not presented at trial. Alan J. Cornblatt, P.A. v. Barow, 153 N.J. 218, 230 (1998); Saul v. Midlantic Nat'l Bank/South, 240 N.J. Super. 62, 82 (App. Div.), certif. denied, 122 N.J. 319 (1990). It is well settled that "[q]uestions not raised below 'will ordinarily not be considered on appeal.'" State v. Cryan, 320 N.J. Super. 325, 332 (App. Div. 1999) (quoting State v. Bobo, 222 N.J. Super. 30, 33 (App. Div. 1987)); see also State v. Lakomy, 126 N.J. Super. 430, 437 (App. Div. 1974).
Because defendant never sought to admit the evidence concerning the Bell murder investigation under N.J.R.E. 404(b) on either Beardsley's direct examination or Jenoff's cross-examination, no ruling was made nor was the record fully developed on the issue. We, therefore, would ordinarily decline to consider it. Nevertheless, we make the following observations.
"It is well established that a defendant may use similar other-crimes evidence defensively if in reason it tends, alone or with other evidence, to negate his guilt of the crime charged against him." State v. Garfole, 76 N.J. 445, 453 (1978). When other-crimes evidence is proffered by a defendant as exculpatory evidence, "simple relevance to guilt or innocence should suffice as the standard of admissibility." Id. at 452-53. Although a defendant seeking to use other-crimes evidence is afforded a simpler relevancy test than imposed on the State, a "court must [still] analyze the proffered defensive other-crimes evidence pursuant to N.J.R.E. 403." State v. Cook, 179 N.J. 533, 566-67 (2004). Indeed, as we have previously noted, when reviewing a trial court's N.J.R.E. 403 ruling, "substantial deference" is given to the trial court's "'highly discretionary determination.'" Id. at 568 (quoting Garfole, supra, 76 N.J. at 457). We have already determined that the judge's N.J.R.E. 403 finding that the proffered evidence was minimal and would have required a mini-trial of the Bell murder, which would have caused undue delay and confused and misled the jury, was appropriate. See, e.g., Cook, supra, 179 N.J. at 568. If the judge had considered N.J.R.E. 404(b) as an alternate means for admitting the proffered evidence, the result would have been to exclude it under N.J.R.E. 403. Thus, the outcome would have been the same. We conclude, therefore, that there was no error, much less plain error.
Placing heavy reliance on State v. Artwell, 177 N.J. 526 (2003), defendant next asserts that plain error was committed when James Keeny was permitted to testify while wearing prison clothing. Defendant maintains that the same precautions used when Beardsley testified were not followed when Keeny was presented as a witness. In Artwell, the defendant's witness, Herbert Boone, testified while restrained by handcuffs and in prison garb. Id. at 533. Boone's testimony corroborated Artwell's account, which was significantly different from that given by the arresting officers. Id. at 531-33. The Court held:
Unlike the use of restraints, requiring a witness to testify in prison clothing "further[s] no vital State interest." Instead, that practice only prejudices a defendant both by undermining his or her witness's credibility and suggesting a defendant's guilt by association. Accordingly, going forward, a trial court may not require a defendant's witness to appear at trial in prison garb. . . . In future cases, a defendant therefore need not make an affirmative request of the trial court that his or her witnesses appear in civilian clothing. Instead, as a general rule the corrections authorities should supply defense witnesses with civilian clothing and those witnesses should enter the courtroom in such attire. We note, however, that when an incarcerated witness is expected to testify on a defendant's behalf that defendant should notify the trial court and the State as soon as
practicable, so that those parties may make suitable arrangements.
[Id. at 539 (citations omitted).]
We note that Artwell was decided on July 2, 2003, more than a year and a half after defendant's trial was completed. The Court's blanket proscription on the wearing of prison garb was to be applied "[i]n future cases." Ibid. The Court in Artwell did not give its ruling retroactive effect. Accordingly, we do not agree with defendant that Keeny's appearance in prison attire deprived defendant of a fair trial.
Unlike the witness in Artwell, Keeny was neither associated with defendant nor was he called as a witness to corroborate defendant's account. Rather, he was presented as a fellow jailhouse inmate of Jenoff's and called to testify about a conversation that occurred in the Camden County jail while Keeny was awaiting transfer to state prison. There is nothing in the record to indicate that defendant notified the trial judge that Keeny needed clothing or objected to him testifying in prison garb.
After greeting Keeny with "good morning," the first introductory questions asked by defense counsel were where Keeny currently resided, whether he was currently serving a state prison sentence, and why he was in prison. After obtaining the answers from Keeny that he was presently serving a prison term in Bayside State Prison for burglary, defendant then established that Keeny had a long history of involvement with the criminal justice system. Defendant covered Keeny's 1977 conviction for criminal mischief, 1979 drug conviction, 1980 aggravated robbery conviction in Texas, 1986 convictions for burglary and receiving stolen property, and 2000 burglary conviction for which he was currently serving time.
Keeny related Jenoff's purported statements that the killing of Carol Neulander was a "botched burglary," that "the kid snapped," and that defendant had "no clue." His testimony was used to attack Jenoff's credibility and inculpate Jenoff and Daniels as acting alone. Although Keeny's testimony was used, indirectly, to exculpate defendant, it was not offered as information gained from knowledge arising out of an association with defendant. Unlike Keeny, Beardsley was not questioned about his present prison status or prior criminal record. Keeny's inmate status, by contrast, was made clear by defendant's direct examination. Under those circumstances, Keeny's wearing of prison clothing would have been expected by the jury. It did not have the capacity to undermine Keeny's credibility any further than the information obtained on direct examination concerning Keeny's status and criminal record, nor was there any chance that Keeny's appearance in prison attire suggested defendant's guilt by association. We are satisfied that any error in allowing Keeny to appear in prison garb was not "clearly capable of producing an unjust result." R. 2:10-2.
Defendant next challenges, for the first time on appeal, the judge's failure to sua sponte instruct the jury that the guilty pleas of Jenoff and Daniels could be used only to assess credibility and not as substantive evidence of defendant's guilt. Defendant relies for support on State v. Stefanelli, 78 N.J. 418 (1979), and State v. Murphy, 376 N.J. Super. 114 (App. Div. 2005). Defendant's reliance is misplaced. We conclude that any error here was harmless.
During direct examination, the State showed Jenoff a copy of his plea agreement whereby he pled guilty to aggravated manslaughter of Carol Neulander. Defendant did not ask the judge to give a limiting instruction regarding the use of the guilty plea. During the lengthy cross-examination of Jenoff regarding his plea agreement, defendant suggested that the better Jenoff performed at trial and the "bigger and more expansive the lie," the better Jenoff's ultimate benefit would be when it came to his sentencing. In fact, Jenoff agreed that he was seeking a benefit from the prosecutor and the judge by his testimony. He explained that he wanted to impress them with his cooperation and truthful testimony. During his summation, the prosecutor did not argue that Jenoff's guilty plea was substantive evidence of defendant's guilt.
The testimony of Daniels' attorney established that Daniels entered into a plea agreement and pled guilty to aggravated manslaughter and to first-degree robbery. According to his counsel, Daniels pled guilty because he wanted to avoid the death penalty and because he wanted to come forward about his involvement. Again, defendant did not ask the judge to give a limiting instruction regarding the use of the guilty plea. In summation, the prosecutor refrained from using Daniels' guilty plea as substantive evidence of defendant's guilt.
[A] guilty plea of one person . . . cannot be considered satisfactory or worthy evidence of the guilt of others even though similarly circumstanced and is properly excludable under the axiom that a defendant on trial is entitled "to have his guilt or innocence determined by the evidence presented against him, not by what has happened with regard to a criminal prosecution against someone else."
[Stefanelli, supra, 78 N.J. at 433 (quoting United States v. Toner, 173 F.2d 140, 142 (3d Cir. 1949)).]
A trial court has an independent obligation "to give the jury a proper cautionary instruction as to the limited use of this testimony for credibility purposes, even in the absence of a specification of reasons by the prosecutor or a request therefor by defendants." Id. at 434.
In Stefanelli, a co-defendant testified about his role in a conspiracy with the defendant to break and enter and to commit larceny. Id. at 423-25. The prosecutor told the jury during summation "that it was an insult to their collective intelligence to believe that" the co-defendant would have pled guilty if he had not been in a conspiracy with the defendant. Id. at 435. The trial judge gave no limiting instruction regarding the use of the co-defendant's guilty plea and no curative instruction regarding the prosecutor's improper summation comment. Ibid. The Court held that the co-defendant's guilty plea was not admissible as substantive evidence of the defendant's guilt but was admissible for the limited purpose of affecting the co-defendant's credibility. Id. at 433-34. The Court declared that when a co-defendant's guilty plea is admitted into evidence, "a limiting instruction [should be given] to the jury restricting the use of a guilty plea to the issue of credibility." Id. at 435. Nevertheless, the Court in Stefanelli held that the absence of the limiting instruction was harmless error because the co-defendant's guilt "was established independently," and because he had been "thoroughly cross-examined and his credibility severely tested." Id. at 436. The Court found that under those circumstances, the absence of a limiting instruction was "truly harmless" and added "nothing of substantive consequence." Ibid.
In Murphy, supra, 376 N.J. Super. at 122-25, we reversed the defendant's conviction, directing that there must be an instruction not only limiting use of the guilty plea of co-defendants to credibility but also prohibiting its use as substantive evidence of the defendant's guilt. In Murphy, the co-defendants were the only witnesses to testify about a theft they committed with defendant. Id. at 119-21. They also testified to their guilty pleas. Id. at 121-22. When explaining a guilty plea, the judge enhanced the credibility of the co-defendants by telling the jury that the pleas could only have been accepted by a trial court if the judge was satisfied that the co-defendants were "in fact, guilty of the offense." Id. at 121. The trial judge gave a Stefanelli limiting instruction. Id. at 121-22. Thereafter, in summation, the prosecutor also bolstered the co-defendants' credibility by using an analogy that prisoners who fool their captors get beaten while those that are truthful do not. Id. at 124. The Murphy panel concluded that, because the judge enhanced the co-defendants' credibility and the only evidence against defendant was presented by his co-defendants, a two-fold instruction adding the prohibition against using a guilty plea as substantive evidence of the defendant's guilt was necessary. Id. at 122-23.
Here, like Stefanelli, but unlike Murphy, Jenoff's and Daniels' guilt was established by independent evidence. More importantly, the prosecutor did not improperly argue that Jenoff's and Daniels' guilty pleas could be used as substantive evidence of defendant's guilt and there were no instructions enhancing their credibility. Further, similar to the circumstances in Stefanelli, Jenoff's and Daniels' motives to lie were relentlessly and thoroughly explored in cross-examination, which severely tested their credibility. Neither Jenoff's nor Daniels' plea added any extra evidential weight to proofs of defendant's involvement. See Stefanelli, supra, 78 N.J. at 436.
Finally, although the judge did not give an instruction concerning the specific use that could be made of their guilty pleas, she charged:
My next instruction concerns the evaluation of the testimony of Leonard Jenoff and Paul Daniels. Leonard Jenoff and Paul Daniels have admitted their guilt and have testified in this trial on behalf of the prosecution. The law requires that the testimony of such witnesses be given careful scrutiny.
In weighing their testimony, therefore, you may consider whether either of them has a special interest in the outcome of the case, and whether such testimony was influenced by the hope or expectation of any favorable treatment or reward, or by any feelings of revenge or reprisal.
She also instructed that "if you find Mr. Jenoff to be credible and worthy of belief, you have a right to convict the defendant." Here, the significant factual evidence of defendant's guilt renders the admission of the guilty pleas without a limiting instruction harmless. The lack of a limiting instruction did not have a clear capacity to produce an unjust result nor did it affect the outcome of the trial. See R. 2:10-2.
During the charge conference, defense counsel inquired, "I'm curious, is there any 'false in one, false in all' language in the [charge]." The prosecutor responded, "that is not a favored charge . . . [it] is not frequently given. I don't think it should be given in this case." The judge answered that although the "false in one false in all" charge has "never been expressly repudiated . . . it's a charge given infrequently, and it is a charge that I believe has the capacity to cause a potentially unjust result." The judge then indicated that she was going to use the more balanced charge on the evaluation of credibility together with instruction on contradictory statements of witnesses, citing State v. P.H., 353 N.J. Super. 527, 547 (App. Div. 2002), aff'd, 178 N.J. 378 (2004). The judge gave what amounted to the standard charge on credibility, ending by telling the jury "as judges of the facts, you will weigh the testimony of each witness, and then determine the weight to give to it. Through that process, you may accept all of it, a portion of it, or none of it."
Defendant asserts that because several of the witnesses, including Jenoff, Soncini, Levin, and Levin's friends, provided contradictory statements to the police, the "false in one, false in all" charge should have been given. However, conspicuously absent from defendant's argument is the fact that there were also contradictory statements made by defendant to the police concerning his affair with Soncini. We doubt, therefore, that defendant would have benefited from a "false in one, false in all" instruction.
The following two samples of the charge appear in The Model Civil Jury Charges:
If you believe that any witness deliberately lied to you, on any fact significant to your decision in this case, you have the right to reject all of that witness's testimony. However in your discretion you may believe some of the testimony and not believe other parts of the testimony.
If you believe that any witness or party willfully or knowingly testified falsely to any facts significant to your decision in the case, with intent to deceive you, you may give such weight to his or her testimony as you may deem it is entitled. You may believe some of it, or you may, in your discretion, disregard all of it.
[Model Jury Charge (Civil), 1.12(M), "General Provisions and Outline for Standard Charge" (1998).]
The "false in one, false in all" charge is optional and may be given "in any situation in which [the judge] reasonably believes a jury may find a basis for its application." State v. Ernst, 32 N.J. 567, 583-84 (1960), cert. denied, 364 U.S. 943, 81 S. Ct. 464, 5 L. Ed.2d 374 (1961). The decision whether to give it or not is within the trial judge's discretion. The charge does "not apply unless the witness willfully testified falsely to some material fact." State v. D'Ippolito, 22 N.J. 318, 324 (1956). Indeed, the charge itself speaks in terms of false testimony under oath rather than contradictory statements to the police. The judge gave a thorough charge on prior inconsistent statements of witnesses and credibility. Her instructions on both, neither of which is challenged on appeal, were comprehensive and appropriate, and achieved the proper balance. There was no error, much less plain error.
According to Jenoff, after Carol's murder, he and defendant continued their relationship and talked often about the police investigation. In 1997, when Jenoff was subpoenaed to testify before the grand jury, he and defendant discussed Jenoff's testimony in advance. They agreed that Jenoff would lie, otherwise they would both be arrested for the murder.
After Jenoff's appearance before the grand jury, he and defendant discussed a newspaper article that indicated that Levin had testified before the grand jury. Defendant told Jenoff that he thought Levin "was a [traitor], a turncoat, for testifying against him at the grand jury." Jenoff testified that defendant asked him "if [he] would kill Peppy Levin." Defendant knew that Jenoff had a stun gun and that Levin had had several heart attacks. He asked Jenoff whether a stun gun placed on Levin's heart would be fatal. Jenoff responded that he did not know and told defendant to "forget about the whole thing."
Defendant did not object to that testimony, made no request for a limiting instruction, and did not cross-examine Jenoff on those allegations, except for pointing out that Jenoff never mentioned having a stun gun in his first statement to police. On appeal, defendant contends for the first time that the testimony that defendant asked Jenoff to kill Levin amounted to inadmissible other-crimes evidence under N.J.R.E. 404(b). He also asserts that, even if properly admitted, the judge's failure to sua sponte give the required limiting instruction was reversible error. The State counters, claiming that defendant has mischaracterized the nature of that evidence and the reason for its admission. It argues that the judge properly admitted the statement without a limiting instruction as "part of the res gestae or criminal mosaic of Carol's murder," and as a statement by defendant reflecting his consciousness of guilt. Defendant's failure to object requires us to determine whether the admission of this other-crimes evidence constituted plain error, i.e., was it "of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2.
Res gestae means literally, "things done." Black's Law Dictionary 1310 (7th ed. 1999). To be admissible as res gestae the "things done" must be so closely connected in both time and substance as to be part of the happening. To qualify as res gestae the "[c]onduct [must be] part and parcel of the offense being tried." State v. Jenkins, 356 N.J. Super. 413, 429 (App. Div. 2003), aff'd, 178 N.J. 347 (2004). "Res gestae evidence is used to refer to events surrounding the issue being litigated, or 'other events contemporaneously with them.'" Ibid. (quoting State v. Long, 173 N.J. 138, 168 (2002) (Stein, J., concurring in part, dissenting in part)). Res gestae evidence "relates directly to the crime for which a defendant is being tried, rather than involving a separate crime." State v. L.P., 338 N.J. Super. 227, 235 (App. Div.), certif. denied, 170 N.J. 205 (2001). Unlike other-crimes evidence, res gestae evidence is not subject to a N.J.R.E. 404(b) analysis, however, it does require N.J.R.E. 403 balancing. Long, supra, 173 N.J. at 161. Defendant's alleged attempt to get Jenoff to murder Levin was neither contemporaneous to nor part and parcel of his wife's murder. As such, it did not qualify as res gestae evidence. Nevertheless, we are satisfied under the circumstance here that admission of the challenged evidence did not constitute plain error.
N.J.R.E. 404(b) states:
Evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.
"The rule guards a defendant's right to a fair trial by avoiding the danger that a jury might convict the accused simply because the jurors perceived him to be a bad person." State v. Urcinoli, 321 N.J. Super. 519, 540 (App. Div.), certif. denied, 162 N.J. 132 (1999). A judge must ordinarily analyze and find the following four factors before admitting other-crimes evidence:
"1. The evidence of the other crime must be admissible as relevant to a material issue;
2. It must be similar in kind and reasonably close in time to the offense charged;
3. The evidence of the other crime must be clear and convincing; and
4. The probative value of the evidence must not be outweighed by its apparent prejudice."
[State v. Cofield, 127 N.J. 328, 338 (1992) (quoting Abraham P. Ordover, Balancing The Presumptions Of Guilt And Innocence: Rules 404(b), 608(b) And 609(a), 38 Emory L.J. 135, 160 (1989)).]
Moreover, if evidence of other crimes is admitted under N.J.R.E. 404(b) for one of the purposes specified in the rule, the jury must be instructed as to the limited purpose of the evidence and the restricted significance the jury can attach to it. State v. Marrero, 148 N.J. 469, 495 (1997); see also N.J.R.E. 105. The trial judge's limiting instruction "'should be formulated carefully to explain precisely the permitted and prohibited purposes of the evidence.'" Cofield, supra, 127 N.J. at 341 (quoting State v. Stevens, 115 N.J. 289, 304 (1989)).
"Declarations subsequent to the commission of the crime which indicate consciousness of guilt, or are inconsistent with innocence or tend to establish intent are relevant and admissible." State v. Rechtschaffer, 70 N.J. 395, 413 (1976) (where defendant stated to undercover officer that he will kill the informer). "They represent an inferential admission of guilt evidenced by the expressed desire of revenge against an informer and as such do not justify exclusion of the question and answer on grounds of relevance and materiality." Id. at 415. The challenged evidence concerning defendant's attempt to have Jenoff kill Levin would have been admitted had the four-prong Cofield analysis been performed.
A limiting instruction is required to be given even if it is not requested by the prejudiced party. State v. Clausell, 121 N.J. 298, 323 (1990). However, we are satisfied that the absence of a limiting instruction here does not require a rerun of the trial. "It is fundamental . . . that a claim of error which could have been but was not raised at trial will not be dealt with as would a timely challenge." State v. Krivacska, 341 N.J. Super. 1, 42 (App. Div. 2001), certif. denied, 170 N.J. 206 (2001), cert. denied, 535 U.S. 1012, 122 S. Ct. 1594, 152 L. Ed.2d 510 (2002). Defendant's "failure to object signifies that the error belatedly claimed was actually of no moment." Id. at 42-43. "[T]o rerun a trial when the error could easily have been cured on request, would reward the litigant who suffers an error for tactical advantage either in the trial or on appeal." Macon, supra, 57 N.J. at 333.
In our view, it is certainly arguable that defendant had little to gain and much to lose had the judge been requested to give the appropriate limiting instruction. To be sure, the judge would have been required to instruct the jury that Jenoff's statement could not be considered as evidence of a propensity on defendant's part to commit or conspire to commit his wife's murder. However, the jury would have been informed that it could use the evidence as consciousness of guilt on defendant's part, as well as evidence that defendant and Jenoff were involved in an illegal conspiracy. When consideration is given to the evidence of defendant's attempts to influence Soncini's and Matthew's statements and to provide them with representation, we conclude that it is highly unlikely that a limiting instruction would have benefited defendant. Under those circumstances, we perceive that the failure to object to this belatedly challenged evidence or to request a limiting instruction was most likely "a well reasoned strategic determination" and any resulting error was not capable of producing an unjust result. See Krivacska, supra, 341 N.J. Super. at 44; R. 2:10-2.
Finally, defendant asserts, again for the first time on appeal, that he was denied due process when the judge allowed the State to read into evidence certain portions of the cross-examination of defendant from the first trial. Specifically, defendant challenges the following questions and answers:
Q. As a matter of fact, [Rabbi Mazo] could look out from his office desk out the window and see the parking lot where your car and his car would be parked when you were there; correct?
Q. And you don't know of any reason that Rabbi Mazo would have to misrepresent as to the issue of whether you were there on Tuesday nights, do you, sir?
Q. Do you know any reason that Cantor Hockman would have to make misrepresentations to the jury regarding your whereabouts on Tuesday nights?
. . . .
Q. You heard indications through cross-examination and there was the direct testimony that in March of 1995, Mr. Levin talked to the police regarding a conversation he says he had with you. Correct?
. . . .
Q. You heard Mr. Levin say he talked to the police regarding a conversation he said he had with you back in 1994?
Q. And you understand that the nature of that conversation was that you said you'd like to come home and find your wife dead on the floor. You recall that?
A. I recall that.
Q. Do you recall saying that to Mr. Levin?
Q. Do you deny saying that to Mr. Levin?
A. Yes, absolutely.
Q. All right. Can you think of any reason in March of 1995 that Mr. Levin would tell that to the police, if it weren't true?
A. I can't think of any reason.
Defendant essentially asserts prosecutorial misconduct, claiming the questions asked were improper because "[t]he only possible accurate response, that he knew of no reason for Levin or other witnesses to lie, made defendant appear to endorse their credibility." Defendant maintains that the questions asked were tantamount to having defendant assess another witness's credibility, thus interfering with the jury's exclusive right to determine credibility. Defendant's contention is devoid of merit.
Again, because defendant did not object to a reading of these questions, which were answered without objection during the first trial, we must consider the issue based on the plain error standard. R. 2:10-2. In State v. Bunch, 180 N.J. 534, 549 (2004), the defendant asserted that the prosecutor engaged in prejudicial misconduct when, without objection, the prosecutor asked the defendant on cross-examination: "So basically you want this jury to believe that everything that the officers came in here and testified to is untrue?" Applying the principle that a witness must not be compelled to assess the credibility of another witness, the Court held that this cross-examination question was improper. Ibid. Nevertheless, the Court overlooked that impropriety "in view of the substantial amount of evidence of defendant's guilt and the trial court's instruction to the jury that it must determine the witnesses' credibility." Ibid.; see also State v. T.C., 347 N.J. Super. 219, 238 (App. Div. 2002) (no plain error where the prosecutor asked defendant whether a witness was lying because "[t]he prosecutor did not act improperly in pointing out the inconsistencies; the impropriety lay only in the form used to develop the point. There was no misrepresentation or mis-characterization of anyone's testimony. The discrepancy between the testimony of defendant and that of the witnesses testifying for the State was clear and virtually self-evident. The prosecutor simply highlighted and emphasized those inconsistencies."), certif. denied, 177 N.J. 222 (2003); State v. Green, 318 N.J. Super. 361, 376-78 (App. Div. 1999) (harmless error even though the prosecutor repeatedly asked the defendant if the police officers who testified for the State were "lying" or "not telling the truth"), aff'd, 163 N.J. 140 (2000).
First and foremost, contrary to defendant's contention, the questions asked did not suffer from the impropriety of asking defendant whether the witnesses who gave testimony inconsistent with that given by defendant were liars or untruthful. Asking an individual whether another person has a reason to say something is not the same as characterizing another as a liar. Rather, it is an inquiry into whether one person has reason to know why someone else might be motivated to make a particular statement, whether contradictory or not. Simply stated, the questions asked were not improper and there was no prosecutorial misconduct. Moreover, even if it could be said that the questions bordered on impropriety, which they did not, the judge thoroughly instructed the jury on how to evaluate the credibility of witnesses, as well as inconsistent and contradictory statements. She also made it clear to the jury that "you, and you alone, are the sole and exclusive judges of the evidence." Again, there was no error, much less plain error.
The first trial, which commenced in mid-October 2001, was declared a mistrial on November 13, 2001, after the jury was unable to reach a verdict in the guilt phase. See State v. Neulander, 173 N.J. 193, 199 (2002) (modifying the Law Division order barring media contact with the jurors until conclusion of defendant's retrial and verdict), cert. denied sub nom., Phila. Newspapers, Inc. v. New Jersey, 537 U.S. 1192, 123 S. Ct. 1281, 154 L. Ed.2d 1027 (2003).
On April 28, 2000, Jenoff first confessed his involvement and on June 1, 2000, he pled guilty to first-degree aggravated manslaughter. Daniels pled guilty to first-degree aggravated manslaughter and first-degree robbery on June 8, 2000.
Beardsley pled guilty to second-degree sexual assault and endangering the welfare of a child. He was sentenced on May 12, 2000, to twenty years with five years of parole ineligibility.
The variations in Jenoff's testimony from his earlier statement to the police essentially included Carol's reaction to Jenoff's initial blow with the lead pipe, the number of times he asked to use the bathroom, the timing of when he looked for the purse in relation to Daniels' entry into the house, the removal of Carol's purse, the name of the Israeli Consulate, the source of the lead pipe, Jenoff's referral to Carol's murder as his "Entebbe," and defendant's statement to him at Carol's Shiva service that everything was alright because Carol was dead.
In response to the State's assertion that there is no record establishing that Keeny was wearing prison garb, defendant provided a video tape of Keeny's testimony. However, it is difficult to tell whether the clothing Keeny was wearing was prison garb. It did not appear on the tape as the standard jump suit. Instead, from the camera's view, which was essentially from the waist up, it appears as though Keeny was wearing a cream-colored shirt or windbreaker. Nevertheless, for the purpose of this appeal, we will assume that Keeny was wearing prison clothing.
December 28, 2006