STATE OF NEW JERSEY v. JOHN DONATO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5059-02T35059-02T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHN DONATO,

Defendant-Appellant.

____________________________

 

Argued April 5, 2005 - Decided

Before Judges Collester, Parrillo and Gilroy.

On appeal from Superior Court of New Jersey,

Law Division, Passaic County, 01-05-0478-I.

Salvatore T. Alfano, argued the cause for

appellant (Mr. Alfano and Joseph J. Fusella,

on the brief).

James F. Avigliano, Passaic County Prosecutor,

attorney for respondent (Jane E. Hendry,

Assistant Prosecutor, of counsel and on the

brief).

PER CURIAM

After a lengthy jury trial on an indictment charging him with the murder of his wife, defendant John Donato was convicted of aggravated manslaughter and sentenced to seventeen and one- half years. He appeals his conviction.

On Tuesday, February 6, 2001, at 4:14 p.m., Officer Michael O'Rourke of the Wayne Township Police Department responded to an ambulance call to 3 Divan Way, the home of defendant, his wife, Lora, and their two children, Anthony, almost three and one-half years old, and Angela, thirteen months. O'Rourke saw defendant waiting outside and he led the officer to the kitchen, where Lora was lying motionless on the floor. There was a brown substance, thought to be vomit, on the floor next to her body. Defendant told the officer that he had left the house that afternoon to walk the dog and found Lora on the floor when he returned about fifteen minutes later.

Lora's eyes were open, she had no pulse, and she was not breathing. O'Rourke used a defibrillator to analyze her heart for electrical activity, but the equipment indicated shock was not advisable. He then began CPR by compressing Lora's chest by depressing about an inch below the sternum to avoid contact with her ribs. When the Wayne First Aid Squad arrived, O'Rourke helped place Lora on a gurney to transport her to the ambulance.

When O'Rourke returned to the house to ask defendant what had happened, the brown substance had been cleaned up from the kitchen floor. Defendant told the officer that his wife was depressed and had an alcohol problem. He was unsure if she had been drinking that day.

Meanwhile, advance life support paramedics Eduardo Perera and Douglas Bryer of the Mobile Intensive Care Unit of Wayne General Hospital arrived and took over the efforts to save Lora. Perera recalled that Lora had no pulse, no respiration, no heart activity and was "basically flatline" or clinically dead. Bryer tried twice to intubate Lora. The first time he failed because her jaw was stiffening from rigor mortis. Trying a different angle, he was successful on the second attempt, inserting an endotracheal tube to administer ephedrine. He did not observe any evidence of seizure such as cuts on the tongue or bleeding in the mouth. Perera found he could not put an intravenous line in Lora's arm because rigor mortis had set in and her veins had collapsed. Both paramedics noticed lividity in the back and buttocks area. After administering atropine and ephedrine with no observable result, they agreed that a pronouncement of death was warranted. They called Dr. Salvador Arguilla, the emergency room doctor at Wayne General Hospital, and reported clinical findings of rigor mortis, fixed and dilated pupils, lividity, and no response to ephedrine or atropine. Dr. Arguilla pronounced Lora dead. It was 4:40 p.m.

While transporting Lora's body to the emergency room, Bryer noticed a bruise over Lora's left chest. When he assisted hospital personnel in undressing Lora, he also saw a deep gash between two fingers of her left hand and bruising all over her body. Dr. Arguilla's report stated that Lora's body arrived at the hospital at 4:57 p.m., and as soon as it arrived, he checked for trauma or other observable causes of death. He noted postmortem lividity on her back, upper torso and sides, which generally appears from thirty minutes to two or three hours after death. He found discoloration of her left middle finger and both legs as well as ecchymosis of the left hip, shoulder blade and right lateral chest wall. There was rigor mortis in the extremities, which generally appears two to four hours or more after death, depending upon the environment, the person's condition and the manner of death.

After being told his wife was dead, defendant was taken from the hospital to the Wayne police station and interviewed by Detective Sergeant Peter Ferschman and Detective James Faber. He told the detectives that Lora had been at her mother's house the weekend before, and he picked her up on Sunday evening, February 4, 2001. She made dinner, and everything seemed fine. The next day he went to work at the Passaic Valley Water Commission in Little Falls at 6 a.m. and returned home at about 2:45 p.m. to find Lora "bombed." There was a heavy snow that day and a power outage late that afternoon. Defendant said Lora was drinking Grand Marnier, and he heard her fall a couple of times while he fed the children.

The following day, February 6, 2001, defendant had a day off from work. He took his son to day care at 8:30 a.m., went to Dunkin' Donuts, made a payment at his bank at 9 a.m., and arrived home at 9:15. He said Lora was inside and she told him that the cover of the hot tub had fallen on her hand. He said Lora had been drinking and he found a water bottle full of rum. Defendant cleared snow from the walk and went back inside to play with his daughter. He went out about an hour later and Lora was watching television in the bedroom. When he returned at about 11 a.m., she was lying on the bed and told him that her stomach hurt. He tried to get her to eat something, but she declined. Defendant said that in mid-afternoon Lora was still lying on the bed. She got up to fold clothes and then laid down to watch TV with her daughter while defendant vacuumed and cleaned the house.

At about 4 p.m. he went outside to walk the dog. He said Lora was in the kitchen when he left. During his walk defendant waved to the mailman, who later confirmed that he saw defendant walking his dog at about 4 p.m. Defendant said that when he returned, he saw Lora passed out on the kitchen floor. Her eyes were open, and there was vomit on her face and the floor. He shook her, but she did not respond. He then called 9-1-1. Next he paged Lora's mother and then called his father. He said he tried mouth-to-mouth resuscitation but did not know how to do it. When he heard the police arrive, he ran outside and met Officer O'Rourke.

The detectives had defendant focus on the night before Lora died. He said Lora was drunk when he returned home that afternoon and had been hitting herself. She began fighting with defendant after he confronted her and demanded to know where she had hidden the alcohol. He said that night Lora slept on a sofa while he slept on the bed with their daughter. Their son slept on another sofa. Some time later that night defendant said he heard Lora fall in the hallway. He believed it was then that she hurt her stomach.

Detective Ferschman testified that defendant became "very stressed out and agitated" when questioned about that night. He raised his voice and waved his hands. At one point defendant got up and screamed "I didn't kill her." When he sat down, he put his face in his hands and began sobbing. He stared into the detectives' faces and screamed through clenched teeth that he did not kill Lora.

Defendant related that Lora began drinking heavily in 1997 after the birth of their son, and she started therapy at Clifton Counseling Center for depression. When she became pregnant with their daughter, Lora stopped drinking but resumed again four or five days after the birth. Defendant said he discovered hidden bottles of alcohol and credit slips from liquor stores in the house. He said that in January 2000, Lora was "an overnight wreck from alcohol" and was taken to Chilton Memorial Hospital for psychiatric treatment. Her psychiatrist told her to stay away from work, and she was laid off at the end of March. In mid-May 2000, Lora was inpatient at Chilton, and in June she went for treatment to Carrier Clinic for a month. However, her drinking continued, and in the fall of 2000 she once again was in Chilton Hospital. When she returned home, she drank all the time. Defendant said she stole money from him to buy liquor, which she hid all over the house. Defendant found alcohol in baby cups, coffee mugs and cupboards. In 2000, she lost her license after her third drunk driving conviction. She had been in therapy for depression and alcoholism. She attended both inpatient and outpatient programs but always signed herself out early. Defendant said when she was drunk, she became violent, often falling and running into things. He added that on Monday, the day before Lora died, he found an empty bottle of Grand Marnier, which she drank after stealing it from her mother's house.

On February 7, 2001, the day after Lora's death, Dr. Kenneth Hutchins, Passaic County Medical Examiner, performed the autopsy. Beginning his external examination at Lora's head, he found abrasions on her nose, chin and neck and seven hemorrhages under her scalp at the back of her head. He later testified that these injuries resulted from an impact spread over the area so that the force of the impact on the external portion of the skin was dissipated and transmitted to internal organs. He found that all of these injuries were suffered before death and that the wounds on the back of her head were only hours old when Lora died.

Dr. Hutchins found four contusions and an abrasion on Lora's chest. Three contusions on the right side were dark internally, and there was hemorrhaging of the muscles surrounding the nearby ribs. There also was hemorrhaging surrounding the lungs due to a new injury, while a thickening of the pleura or fibrous layer encasing the lung indicated an older injury.

There were contusions in three places on Lora's back. Looking under the skin, Dr. Hutchins found hemorrhaging associated with the contusions which led him to conclude that they had been inflicted about an hour before death. Other contusions were noted on the left hip and extremities. Through microscopic sectioning, Dr. Hutchins determined that while some of the contusions were recent, many were older. Lora's hands also were bruised. There were healing cuts on her left palm, third finger and the back of her hand.

Dr. Hutchins observed multiple rib fractures, old and new. He found twenty healing rib fractures and seven acute fractures. He said he had never before observed as many healing fractures in an adult. He said the number of acute rib fractures was comparable to baby homicides or, in the case of adults, to trauma from a motorcycle accident or a fall from a height of two or three stories.

Dr. Hutchins next saw a linear abrasion on the right side of Lora's abdomen just below her rib cage. When he opened the abdomen, a rush of air came from the abdominal cavity which indicated a perforation or rupture in the intestines. A "pussy and smelly" fluid that came from the peritoneal cavity indicated an intestinal rupture, which Dr. Hutchins found in the first section of the duodenum, the part of the small intestine below the stomach within the peritoneum lining the abdomen. This rupture allowed substances to leak into the peritoneal cavity, irritate surrounding organs and cause peritonitis, which is inflammation of the fibrous peritoneal layer surrounding the abdomen. Because bacteria leaked into the peritoneal space, an infection resulted which traveled into the bloodstream, first causing sepsis and then death. Dr. Hutchins said this process could have taken hours. He said that Lora would have suffered moderate pain initially along with a loss of appetite, weakness and lethargy, but the pain would become more severe, causing her to lose consciousness and eventually die. Based on the duodenal rupture and the absence of any other fatal injury, Dr. Hutchins concluded that Lora's death was caused by peritonitis.

Dr. Hutchins opined that the duodenal rupture occurred no more than forty-eight hours before Lora's death and less than twenty-four hours. He based this conclusion on the following findings: sections of the duodenum showed hemorrhaging which takes place immediately after a rupture; the presence of polymorphonuclear or infection-fighting white blood cells, which appear within one to two hours after a rupture; mononuclear white blood cells, which appear within two to four hours; pigmented macrophages indicating leakage of bile, which appear within four to six hours; and edema of the bowel wall, which generally occurs within an hour of a duodenal rupture and recedes as the reparative process advances. Moreover, his analysis disclosed an absence of hemosiderin in the iron stains of blood cells, which meant that the wound was probably less than twenty-four to forty-eight hours old. There also was no fibrin, which normally would appear within four to six hours of rupture. In addition to the rupture of the duodenum, Dr. Hutchins' internal examination revealed injuries to Lora's pancreas and liver. He believed a hemorrhage of the pancreas was caused by an impact which lacerated Lora's liver, which was the result of a blunt force suffered before death.

Dr. Hutchins said that Lora's internal injuries required a significant level of force, consistent with many blows by kicking or punching. When asked about the absence of a skin bruise on the abdomen in the area of the duodenum, Dr. Hutchins explained that external bruising over an internal organ was not usual if the person is asleep, unconscious, or not expecting a blow. And a bruise would be more likely to develop where the impacting object is very concentrated like a broom handle instead of a fist.

Dr. Hutchins related that he had performed hundreds of autopsies, but never before had he observed a duodenal rupture in an adult. He had seen this injury in children who were victims of homicide from a blunt force to the abdomen or who sustained injuries from bicycle handlebars driven onto their abdomens. He said that duodenal ruptures in adults were very rare and usually associated with motor vehicle collisions. A rupture of this nature could not be caused by a normal fall but could result only from a fall from a great height or from being struck by objects like sticks or broom handles with great velocity. He said items like commodes, tubs, sinks or the rounded table edges in the Donato house would not produce the concentrated force needed to drive through a person's body and reach the duodenum.

Dr. Hutchins concluded that some of the wounds he observed were inflicted within an hour or two of Lora's death and others within four to six hours. None of the wounds were more than forty-eight hours old except for the healing rib fractures, the pleural thickening and the cut to the left palm. He opined that the liver laceration, duodenal rupture and hemorrhage on the pancreas could have occurred four to six hours before Lora's death and that the wounds on her extremities occurred after the injuries to her organs. He found it significant that so many injuries accompanied the duodenal rupture and that internal injuries and most of the other injuries, including the defensive injury on her hand, were incurred at roughly the same time, which was between six and twenty-four hours before death.

After describing Lora's injuries, Dr. Hutchins explained that rigor mortis occurs after death when muscles lose ATP, a chemical that helps muscle contraction. Stiffening in the extremities and depletion of ATP begins one to two hours after death unless slowed down by frigid temperatures or accelerated because the decedent was very active before death. It would take twelve hours for the extremities to become fixed and would remain so for about another twelve hours when rigor begins dissipating. He also explained that lividity generally is apparent about thirty minutes after death unless frigid temperatures slow the process. He said that since the paramedics observed both stiffening and lividity at about 4:30 p.m. and there was no indication that the house was frigid or that Lora had been very active before death, an inference could be drawn that she died at about 3:30 p.m. or earlier.

Dr. Hutchins ruled out accidental fall as the cause of Lora's death because of the number of her injuries and their locations. He said that if she had fallen on something as concentrated as a broom handle, there normally would be only an internal injury in continuity with the area of the abdomen impacted. Therefore, where the impact ruptured the duodenum a pancreatic injury might well be observed but not laceration of the liver or injuries to the back.

Dr. Hutchins said that Lora's rib fractures would not have caused the duodenal rupture or liver laceration since the ribs do not cover those organs and the fractures did not extend through the pleura surrounding the ribs. He also explained it was unlikely that the rib fractures were caused by the administration of CPR by EMT personnel. He said when CPR is done properly, there are no fractures unless the person had brittle bone disease or osteoporosis, neither of which Lora had. Moreover, rib fractures caused by CPR would be fewer in number and would have been on the anterior portion of the ribs, which was not the case with Lora's rib fractures. Furthermore, the hemorrhaging Dr. Hutchins observed in the muscles between the ribs was entirely within the pleura, meaning that it was a result of the rib injuries. Since hemorrhaging does not occur after death, he stated that Lora died before CPR was administered.

The question of whether alcoholism could be a likely explanation for Lora's injuries was also addressed by Dr. Hutchins. He said that the most healing rib fractures he had ever seen in someone with a history of alcoholism was three and that Lora's twenty fractures could not "in any way be called typical of an alcoholic." Out of all the injuries on Lora's body, only those on her external shins and elbows were consistent with alcoholics who fall. Moreover, while Dr. Hutchins did not dispute that Lora abused alcohol for as long as five years, the autopsy did not show the typical indicia of long-term alcoholism. There was no cirrhosis, fibrosis or fatty change in the liver, and no ulceration of the intestines. There was no atrophy of the brain in the area of the cerebellum called the vermis, no abnormalities in the medulla, no healing brain contusions, and no degeneration of the spinal cord. Dr. Hutchins also testified that although the autopsy revealed that Lora suffered from hypocalcemia which can lead to tetany, i.e., rapid contraction of the muscles, which can resemble a seizure, there was no evidence of a seizure disorder. The autopsy did show some swelling in Lora's brain, but Dr. Hutchins said that it could be caused by injury or by gradual dying. Dr. Hutchins concluded that the internal and external injuries Lora sustained were not consistent with an accident and, to a reasonable degree of medical certainty, her death was a homicide.

Dr. Reng-Lang Lin, Director and Chief Toxicologist with the New Jersey State Toxicology Laboratory, performed a toxicological study on Lora's remains. He detected no alcohol or its violative compounds in the blood sample and concluded that she was not under the influence of alcohol or drugs at the time of her death.

After the autopsy concluded that Lora's death was a homicide, defendant was arrested and charged with murdering his wife. On February 7, 2001, the Wayne police and the Passaic County's Sheriff's Department executed a search warrant at the Donato home. They found paper towels coated with a dried brown liquid, a torn sweatshirt with bloodstains, and a clump of dark hair in the kitchen wastebasket. Also found were hidden empty bottles of Grand Marnier, Canadian Club and Bacardi as well as plastic Poland Springs water bottles containing some type of alcohol.

Three weeks later, after defendant was released on bail, Detective Sergeant John Loertscher was picking up his mail at a Wayne post office branch when he saw defendant outside talking on a public telephone. Pretending to drop his mail, Loertscher was able to hear defendant say, "I didn't do anything to her that I haven't [or hadn't] done before." At trial, defendant admitted making a call from the phone to his boss but denied making any comment about doing anything to Lora.

After defendant's arrest, investigating officers began interviewing neighbors and relatives about events occurring in the Donato home. Nancy Naumoff, a next-door neighbor, related several incidents of domestic abuse. She later testified that during the summer of 2000 she was in her yard when she saw Lora outside her house crying and asking someone on the phone to come get her because she was afraid defendant was going to hit her. Naumoff said she spoke to Lora and told her that if she ever needed help, she could come to her home with the children, and no questions would be asked. Lora cried and ran inside. A few weeks later, Naumoff saw defendant standing on the deck of his house yelling at Lora on the patio below and then pouring a pitcher of liquid over her head. In September or October 2000, Naumoff was outside and waved to Lora, who was sitting on her deck. Defendant came out and yelled at her to come inside, and when Lora declined, he grabbed her elbow, pulled her up from her chair and pushed her into the house. Later Lora went outside, and Naumoff again told her she could always come to Naumoff's house with her children. A similar incident occurred in late October 2000. Naumoff saw Lora sitting on a chair on the deck when the defendant came outside and yelled at her to get into the house. Again he grabbed her, lifted her out of the chair and pulled her into the house while Lora was waving her hands in protest.

When defendant testified he confirmed that on a couple of occasions he had told Lora to come into the house from the deck. He explained that he did not want her out there because she might fall if she were intoxicated and also because he thought she might have hidden liquor in the yard. He denied screaming at Lora, saying he simply told her to come inside. He also admitted he once poured a pitcher of water on Lora to sober her up after she had left the children unattended in the house. When asked about the incidents Naumoff described as screaming and forcing Lora from the deck into the house, defendant stated, "I just tried to pick her up and said come into the house. I didn't want her outside on the deck."

Lora's mother, aunt and uncle recalled instances of Lora's alcoholism and their observations of domestic abuse. Lora's mother, Arleen Celmer, said that on December 26, 1998, she went to Lora's house and saw her drunk for the first time. She said Lora admitted drinking and told her, "Mommy, there is something wrong; I need help." Lora was then in her first month of pregnancy with Angela. Celmer took her to St. Mary's Hospital in Passaic. She said that afterwards Lora remained sober throughout her pregnancy but resumed drinking after Angela was born.

Celmer said that several people noticed that Lora was intoxicated at Angela's christening on January 2, 2000. She confronted Lora at the church and later at the reception. She also spoke to defendant about it, but he said, "It's the baby's christening, let her drink." Lora's uncle, John Woods, corroborated Lora's behavior and appearance on the day of the christening. He said she looked disheveled and "spaced out." At the reception he was sitting next to defendant and Lora, and he heard defendant order a drink for her.

Lora's aunt, Gail Woods, also testified Lora was drunk and looked disheveled at the christening. When she expressed concern to defendant, he said he had given Lora permission to drink at the party.

Mrs. Woods was concerned after the christening and made a point to visit Lora each week through the spring of 2000 to cheer her up and would take her daughters along to play with Lora's children. She said Lora was usually very quiet and moved in a guarded fashion, as if stiff or sore. Many times she seemed under the influence and unsure of her footing, and on at least one occasion Mrs. Woods saw a bottle of alcohol out on a counter. She said the house was untidy, but the children were always clean and properly dressed. Mrs. Woods could not see evidence of injuries on Lora's body but added that she usually wore sweat clothes. However, during one visit she noticed there was hair missing on the right side of Lora's head above her ear and a large bruise on her cheek bone which Lora had tried to conceal with makeup.

Mrs. Woods also was present on several occasions when defendant returned from work. She said he often was angry and yelled at Lora. These confrontations caused Mrs. Woods to visit less frequently and finally to stop entirely. She said that at least twice defendant telephoned her while he was very upset and asked her to persuade Lora to tell him where she hid liquor. During one of these calls she heard Lora in the background screaming "tell him to stop hitting me. He's hitting me." Defendant later confirmed that he had called Mrs. Woods and asked her to get Lora to say where the liquor was, but did not recall Lora yelling in the background.

Celmer also observed indications of physical abuse of Lora. She said that on January 16, 2000, Lora was intoxicated. Her feet were black and blue from her ankles to her toes; she had a large bruise in the kidney area; swelling on the side of her nose; and burn marks which Lora said resulted from falling asleep on her curling iron. Celmer took Lora to Chilton Hospital and heard her tell a crisis counselor that defendant hit her when she did not do what he wanted her to do. She said she loved defendant but that she was worthless, deserved what she got, and was better off dead.

In March 2000, Mr. Woods received a call from Lora early in the morning asking him to take her to the hospital because defendant had hit her. When he arrived at the Donato house, Lora was crying and appeared to have been drinking. Mr. Woods asked defendant why he kept hitting Lora, and defendant replied "you don't understand." Mr. Woods took Lora to the hospital, and while there he saw that both of Lora's arms were bruised.

In the summer of 2000, Lora again asked Mr. Woods to take her to the hospital because defendant had hit her. After they arrived at the emergency room, Mr. Woods saw a four- or five-inch bruise on Lora's lower back and heard her tell the doctor that her husband had beaten her. When Celmer went to the hospital that afternoon, Mr. Woods went to the Donato house where he found defendant, his parents and the children. He told the defendant that Lora was admitted to the hospital and needed to undergo an alcohol treatment program. He said defendant was angry that Lora was remaining in the hospital and yelled, "I want her home." Mr. Woods testified he told defendant that he had to stop beating Lora. He said defendant did not deny hitting her but explained, "I get frustrated and I'm sick of this crap and everything would be o.k. if she comes home." When Mr. Woods suggested that both defendant and Lora had problems and needed therapy, defendant denied that anything was wrong with him.

On September 25, 2000, Lora telephoned Celmer at work and told her that defendant hit her and she was hurting "really bad." Lora asked her mother not to come to the house because, "If you come up, he'll know that I told you." When Celmer visited the next day, she saw that Lora was covered with bruises. She had two huge hematomas under her breasts, a black eye, a fat lip, a swollen nose, and some of her hair had been pulled out. She looked like a "whipped puppy." Lora told her mother that defendant had dragged her on the floor, beaten her, punched her in the stomach and stomped on her back. Celmer warned Lora that defendant was going to kill her unless she notified the police, but Lora refused. She said defendant would lose his job, and then she would lose the children because of her drinking and DWI convictions. She said she was "a loser," "good for nothing" and "a piece of shit." After she told her mother that some of her hair was in the kitchen garbage, Celmer checked and found a glob of hair and bloody paper towels. She confronted defendant when he came home, but he denied doing anything to Lora. While Lora refused to go to the hospital, she asked her mother to take her to defendant's parents' home so that she could show them how he abused her. At trial defendant denied any such incident or conversation.

Celmer related that five weeks later, on November 1, 2000, defendant called her at work and asked her to pick up Anthony at nursery school because he had taken Lora to the hospital. He explained he had found Lora drunk on the bedroom floor with a laceration which required stitches. Later that day Mr. Woods visited Lora at Chilton Hospital and saw a three-inch gash on the back of her head as well as bruises on her arms and body. She told him that defendant had pulled her down the stairs and slammed her against the wall.

Pequannock Police Officer Rick Vanderclock responded to Chilton Hospital to investigate after the hospital reported an incident of domestic violence. He said Lora was heavily intoxicated and had a cut on the side of her head. She told him she had been thrown down the stairs by her husband. Vanderclock then interviewed defendant, who said that Lora fell down and hit her head on a bedpost because she was drunk. He said he ran in when she screamed and found her on the floor.

Because the Donatos lived in Wayne, Vanderclock contacted the Wayne police and turned the matter over to them. Officer Scott Agnes went to the hospital. He said Lora was intoxicated and said her husband threw her into a wall in the cellar stairwell. Once again defendant said Lora was drunk and he found her lying on the bedroom floor. Agnes and another officer later went to the Donato home. They looked in the stairwell but they found no dents or hair or blood on the stairwell wall, but they found blood on the rug next to the bed and an open liquor bottle. They concluded that the incident occurred in the bedroom as defendant had described, and, despite Lora's claim that defendant had physically assaulted her, they took no further action.

Celmer was at the Donato house caring for the children when defendant and the police arrived from the hospital that night. When Lora returned home after the police left, Celmer asked her what had happened. She said Lora turned to defendant and said, "Tell her what you did, John." Lora then said he had banged her head at least four times until she passed out, and, according to Celmer, defendant did not deny it. When Lora asked defendant why he had taken off all her clothes, even her socks and underwear, he replied that she had bled on the clothes. She demanded to know where her sweatshirt was, and defendant retrieved it from behind the couch. The sweatshirt was torn at the neck, sleeve and bottom. Lora took it from defendant and said, "See, look what he did. Look what he did to my sweatshirt. Look what he did to me. . . . [D]o you believe me now, Mom?" Celmer said that again defendant did not respond.

The following day Mr. Woods picked up Lora and took her to breakfast. He said she was upset, and may have been drinking. She told him she wanted to go to the police but did not want defendant to find out. Mr. Woods took her to the Wayne police station where Lora spoke to Sergeant Martello, who photographed the gash on the back of Lora's head. Lora did not file a complaint against defendant.

Celmer's testimony about the last month of Lora's life began with her describing an incident in early January 2001 when she arrived to take Lora to an Alcoholics Anonymous meeting. Lora was in the bathroom sobbing and crying out that she would not come out because she did not want to get hit. Celmer could tell that Lora had been drinking. She saw defendant go into the bathroom and yell at Lora to get out. Celmer said Lora came "flying out" of the bathroom and hit the wall. As Celmer helped Lora off the floor, she saw that her face was red and there were bruises on her arms. Celmer decided to take Lora home with her for the weekend. In the course of gathering her things, Lora asked defendant several times to help her find her medications and vitamins. Celmer said defendant told Lora to get on her knees and beg for them. Defendant later testified that no such incident occurred.

Celmer testified that on Friday, January 26, 2001, she received a call from defendant's mother at about 12:30 p.m. and heard Lora crying in the background, "Help me, I need help. I don't want this anymore. I don't want to be hurt anymore. He's got to stop hitting me on the head. Tell him to stop hitting me, Mommy, help me, please help me." Celmer arrived at defendant's parents' house at about 1:30 p.m. and found Lora huddled on her hands and knees in a corner of the kitchen. She was intoxicated and repeated, "Don't let him hurt me anymore. I hurt so bad. I don't want to hurt anymore. I've got to get out of here before he comes. Please, Mommy, take me out of here." When Celmer offered to take Lora to the police, she refused but agreed to go to Chilton Hospital. Just before they left, the defendant arrived, and Lora ran outside. Defendant asked Celmer what she was doing, and she told him she was taking Lora to the hospital to get help. Defendant said, "Why are you doing this? I love her. Why are you doing this to us?" Celmer confronted defendant about hitting Lora, but he denied it. She told him, "You have to stop hitting her. You have to get help. She needs help. You need help. If you don't stop, you're going to kill her because every time you hit her it [is] worse than the time before." He replied that if Lora stopped drinking and did what she was told, everything would be fine. When Celmer got Lora into her truck, defendant came outside yelling words to the effect of, "Why are you doing this? Let me help you. You know you're hurting the kids. . . . Your kids love you. I love you. . . . You're going to lose everything. . . . I'm going to have the kids. You're going to have nothing."

Celmer took Lora to the Chilton Hospital emergency room and heard Lora tell the nurse that she was an alcoholic, that defendant beat her, and that she was in pain. Lora also said, "He has to stop hitting me in the head. He has to stop banging my head. He stomps on me, he kicks me, punches me in the stomach, drags me across the floor." Lora told the nurse that she drank to stop the pain, but it had gotten out of hand. Celmer also heard Lora later tell the hospital doctor, "I hurt so much, please make the pain stop. I don't want this to happen anymore. It has to stop. . . . He hurt me. I can't take him hurting me anymore." While Lora was being taken to the examining room, Celmer saw bruises on her arms, back and mid-trunk area. The doctor's notes referred to a bruise on one of Lora's eyelids, a cut on her forehead, a swollen cheek, a bald spot on her head, bruises on her thigh and scars on her head.

Early the following morning Lora was discharged, and Celmer took her to her home. Lora said she did not want to go back to defendant but did not know what to do about her children. Celmer said Lora could live with her while she and defendant's parents helped out with the children so that Lora could get help and live apart from defendant. But Lora repeated that she was afraid of losing her kids and her home. She stayed with her mother until Wednesday, January 31. She told her mother that she spoke with defendant and he said he was sorry, he wanted things to work out to keep the family together and agreed that both of them would get help. Despite Celmer's objections, Lora returned home.

Two days later, on Friday, February 2, 2001, Celmer picked up Lora and the children to stay with her overnight. Since defendant worked on Saturday, Celmer would drive Lora to court-ordered DWI counseling on Saturday mornings. Celmer and Lora asked defendant if Lora could stay until Sunday, but defendant said he wanted her and the kids home.

On Monday, February 5, the day before Lora died, Celmer recalled there was a heavy snow and ice storm which closed major roadways. She said the roads were so treacherous that her normal ten-minute trip home from work took the better part of two hours. When she arrived, there was a phone message to call Lora. She called at around 6 p.m. Lora told her the defendant wanted the family to leave the house because there was no heat or electricity, and defendant got on the phone and asked if they could go to Celmer's house. Celmer agreed, but said they would be better off staying put because of the roads. She said that defendant said nothing about Lora drinking at that time. Celmer called back several times later that evening but received either busy signals or no answer until 10 p.m. when defendant answered and said he had been on the phone with his father. He was upset because Lora refused to leave the house and Anthony had knocked over a candle in the dark. He said nothing about Lora falling. Celmer then asked to speak with Anthony, and while she was talking to him she heard defendant yelling at Lora to dress and Lora sobbing and asking him not to hit her. Celmer asked Anthony where his mom was and he said, "Over here on the floor." When she asked him where his dad was, Anthony replied "Daddy is by Mommy, he's yelling at Mommy." When Celmer asked Anthony if his mom had been drinking, he said yes. When Celmer asked him what his parents were doing, he said his mom was on the floor by the kitchen and his dad was hitting her. Celmer could hear defendant still yelling at Lora to get dressed and saying, "I want to get out of here." She heard Lora crying and telling defendant to stop hitting her and to leave her alone. Celmer asked Anthony to put his dad on the phone. She told defendant to stop hitting Lora and take care of his kids. Defendant repeated, "I want her to get dressed. I want to leave this house. There's no heat." Celmer suggested he put the kids in pajamas or sweat clothes, get some blankets and stay in the living room until the heat returned. Around midnight Celmer called back and spoke with defendant who told her that Lora and the kids were sleeping.

The next morning Lora called her mother at 7:30 a.m. to apologize for the way she and defendant had acted the night before. When Celmer asked her if she had been drinking the night before, Lora said she had consumed a little Grand Marnier but had not been drunk. She said nothing about having fallen or having been beaten by defendant. At about 11:30 a.m. Celmer called back to talk to Lora again. Defendant answered and said she was taking a bath. He added that she had a stomachache.

Celmer called again that afternoon but no one answered. At about 4 p.m. she was on the phone with defendant's mother when defendant paged her. She ended the conversation and called defendant. She said he was crying and told her Lora was on the floor and he could not wake her. Celmer told him to call the paramedics, and he said that he had. Later Celmer went to the hospital, but the staff would not permit her to see Lora.

The State produced Dr. Behzad Ahkami, Lora's psychiatrist, who testified as a fact witness and as an expert in psychiatry and addiction. He said that Lora began treatment with him in December 1999 for major depression and alcohol dependency. He also saw her at Chilton Hospital in March, May and October of 2000. He said that while Lora sometimes remained sober with medication, she did not respond well to therapy. At times her alcoholism and depression required hospitalization to detoxify her and simultaneously treat the depression.

Dr. Ahkami testified that defendant accompanied Lora to some of her treatment sessions, but he did not seem to understand that Lora's drinking was an illness. When defendant arrived with Lora on January 4, 2000, she had two black eyes, bruises on her face, and her hair was thin on the left side of her head. She told Dr. Ahkami in defendant's presence that he had punched her, and defendant started screaming and became aggressive to the point where Dr. Ahkami feared there would be a physical altercation. Defendant denied punching Lora, and said Lora was aggressive toward him and claimed her injuries occurred because he was trying to restrain her. Dr. Ahkami recommended that defendant see a therapist about anger management and impulse control, but he did not want to do so. When Lora returned a week later, she had two new black eyes and bruises and said defendant had struck her again. Dr. Ahkami advised her to seek help from the police.

Dr. Ahkami related that Lora was admitted to Chilton Hospital on March 27, 2000, because of her heavy drinking, depression and suicidal statements. She had been told that she would be terminated from work due to downsizing, which Dr. Ahkami said was a factor causing the onset of this episode. When he met with Lora in the hospital, he said she was not under the influence. What Lora needed, in Dr. Ahkami's opinion, was an inpatient alcohol rehabilitation program, and he discussed it with her in the hospital. But Lora said defendant did not want her to enter an inpatient program or stay in the hospital because he did not understand her illness. She then began a Carrier Clinic outpatient program, but she was terminated in the second week for relapsing twice, including an incident when the police found her asleep in her car and charged her with DWI.

On May 16, 2000, Celmer took Lora to see Dr. Ahkami because of another relapse. He again saw evidence of physical abuse, and he told her that she should be admitted to the hospital for her own safety. Lora denied that defendant had beaten her. However, Dr. Ahkami believed Lora was minimizing defendant's abuse since he had seen her on many occasions with black eyes, thinning hair and bruises which she covered with heavy makeup. He called a social worker and sent Lora straight to Chilton Hospital. A blood test taken at admission showed a negligible blood-alcohol content. She had bruises on her left eye and the left side of her face, an abrasion on her nose, a cut on her lower lip, bruises on the left side of her lower back, and a bruise on the right side of her lower body. She said that the cut on her lower lip and injury to her nose were from a fall on Mother's Day, May 14, for which she was treated at Wayne General Hospital. She said the other bruises were from a beating by defendant.

Dr. Ahkami recommended inpatient treatment several other times, but Lora either refused to go or left the programs early. A treatment session on July 20, 2000, showed Lora's blood-alcohol level was .261. Dr. Ahkami said that when defendant was told this, he screamed at Lora and demanded she tell him how she obtained money to buy alcohol. Dr. Ahkami testified that defendant admitted abusing Lora and promised not to do it again. Defendant later denied making any such statements.

Over the balance of 2000 there were times Lora visited Dr. Ahkami sober, and other times she arrived intoxicated. She tended to stop taking antidepressants to drink, which undermined her treatment. On December 12, 2000, Lora went with defendant to see Dr. Ahkami and admitted she had relapsed two or three days prior to the visit. Once again Dr. Ahkami observed signs of physical abuse. He testified he confronted defendant, and again defendant promised to stop. However, when Lora and defendant went on January 9, 2001, Dr. Ahkami saw that Lora's hair was thin on one side, and she told him that defendant had pulled it out. Dr. Ahkami told defendant he would report him to the police if he continued the abuse, and defendant did not respond. Then on January 16, 2001, Lora arrived again with two black eyes. She told Dr. Ahkami that defendant was continually abusing her, and he advised Lora to call the police. He later testified that since he had not witnessed defendant abusing Lora, he felt it was not his place to notify the police.

On January 26, 2001, a hospital social worker called Dr. Ahkami to ask him to go to Chilton Hospital emergency room to see Lora. He was told that Lora's mother had taken Lora there because she was intoxicated and expressing suicidal wishes. When he arrived at the hospital, Lora was intoxicated. Lora's eyes were black, and there were bruises on her lower lip, upper chest, upper thigh and right buttocks. Her hair was thin in one area on the top front of her head where there appeared to be two fingernail scratches. When Lora said the defendant had beaten her, Dr. Ahkami suggested she get a divorce. Celmer urged that it be done as soon as possible. Lora agreed. Dr. Ahkami left with the expectation that Lora would be admitted, but the hospital discharged her after her insurance company would not approve the admission. Lora went home with her mother, and four days later, January 30, 2001, they met with Dr. Ahkami. He said Lora was sober and said she was going to leave defendant because of his physical and emotional abuse. It was her last visit.

Dr. Ahkami also discussed Lora's medical condition. He said that a CAT scan revealed a "fatty liver," which occurs in the early stages of alcohol abuse. He said if a person stops drinking at this stage the liver can regenerate and recover. He said that he prescribed several medications for Lora, including antidepressants. While some of the medications in combination with Lora's parathyroid problem could cause hair loss, he said it would be generalized and diffuse rather than in one area as he observed on Lora on several occasions. Dr. Ahkami confirmed that Lora's drinking not only caused problems in her relationship with defendant but precipitated an investigation by the Division of Youth and Family Services. He said even that did not deter Lora from drinking. He also acknowledged that Lora frequently fell when she was drinking.

Dr. Sylvia Coscia was Lora's internist between December 23, 1998, and November 7, 2000, when her chief complaints were increased stress, alcohol use and fatigue. She did not report any history of seizures. Dr. Coscia said that Lora was hypocalcemic; that is, her parathyroid glands did not function properly, causing an insufficient metabolism of calcium and a consequent low calcium level so that she prescribed calcium supplements. She said that when Lora went to Sunrise House in 2000, she was taken off the calcium supplements, and had a seizure. She was taken to Newton Memorial Hospital where she was given calcium to prevent any further seizures. Dr. Steven A. Braunstein also testified. He was the attending physician at Newton Memorial and treated Lora between October 14 and 16, 2000, for the grand mal seizure she suffered at Sunrise House, which he attributed to hypocalcemia.

Leslie Hoentz, defendant's supervisor, testified that sometimes when Lora could not function because of her alcoholism, he would cover work for defendant. He related an incident two weeks before Lora's death when defendant was at work and he called to ask Hoentz to stop by the Donato home to see why the telephone was off the hook. Hoentz went and asked Lora to call her husband. He said she mumbled so that he could not understand all of what she said, leading him to conclude she was high on alcohol or drugs. Lora admitted to him she had an alcohol problem and she needed help. Hoentz returned to work and told defendant he should use his accumulated sick days to take care of his wife. He said that Lora called him the next morning to thank him and asked him not to tell defendant she had called. She said she was going to defendant's parents' house, and they would take care of her. Hoentz said her speech was clear, and it seemed that everything was under control.

Defendant testified that Lora's drinking increased after a miscarriage in 1995, but it was not out of control until after Anthony's birth, when she experienced postpartum depression and drank more. The first time he recognized a severe problem had developed was the day after Christmas in 1998 when he found Lora passed out in the basement with a bottle of wine. He said it was at that time that Celmer took her to St. Mary's Hospital. Defendant said Lora was sober during her pregnancy with Angela, but she began drinking excessively after the birth. She started seeing Dr. Ahkami in December 1999, after an incident when defendant came home to find Lora and the children gone. When she returned fifteen or twenty minutes later, Lora was drunk and had gone out to buy rum and wine. When Lora sobered up, she said she needed help and agreed to see Dr. Ahkami for her depression and drinking. Defendant said Lora took the antidepressants Dr. Ahkami prescribed, but did not stop drinking. A month after Lora first saw Dr. Ahkami, defendant said he found a wine bottle and four months of Visa statements totaling hundreds of dollars of charges from liquor stores hidden under the mattress of their bed.

When asked about Dr. Ahkami's observations of Lora's injuries at their January 4, 2000, visit, defendant said that when Lora was drunk, he tried to get Angela away from her. He did not recall inflicting any injuries on Lora, but said he was bruised on his arms and legs after the incident. He denied Lora had missing hair or that her black eyes and facial bruises were caused by him. He did not recall whether he told Dr. Ahkami that Lora had attacked him first or that any injuries she suffered were a result of him defending himself. He admitted that Dr. Ahkami confronted him that day about Lora's injuries, and he agreed to leave Lora alone, but did not recall Dr. Ahkami recommending counseling for anger management. He said he was upset with Dr. Ahkami because of what he felt was a lack of progress but that he understood it would take time for Lora to be helped.

Defendant said that when Lora was drunk she would get violent, especially if defendant found the alcohol she had hidden. Then, "it would be like a wrestling match sometimes. . . . [S]he'd be trying to get it from me and struggling and all." He said she often would fall and hurt herself when she was drunk, and he frequently found her on the floor without knowing how she got there. He said Lora's drinking got worse when she was laid off from work to the point when, on Mother's Day, May 14, 2000, she blacked out and fell down the stairs.

Defendant maintained that he did not oppose Lora entering an inpatient program, but based on stories he heard from hospital employees about some programs, he wanted to be sure it was a good one. He said Carrier Clinic was not presented as an option until May 30, 2000, the day after he took her to Chilton Hospital for treatment after another fall. After she was accepted, Lora went inpatient at Carrier Clinic in June 2000. Defendant and Lora's mother visited Lora on Sundays. He said Lora seemed a lot better and in a good frame of mind, but she had to leave after three weeks because of the limits of their insurance coverage. He said he felt comfortable with her leaving because it appeared she had improved a great deal. However, when she relapsed a couple of days after returning home, defendant became frustrated because, as he testified, "She was supposed to be in the best place around and was there for a long, extended time. Even that, it seemed, couldn't help her." He said her depression and drinking got even worse. After she was arrested for her third DWI, Lora went to the Sunrise House alcohol program. Defendant said he told her during a visit, "Lora, again we're hoping for improvement and, you know, we want you home." However, Lora prematurely signed herself out of the program because she said the counselors degraded the patients. Defendant claimed he tried to persuade her to stay, but Lora refused.

Defendant's said that Lora's injuries on November 1, 2000, occurred after he arrived home from work and found Lora drunk. He went to daycare to pick up Anthony, and when he returned it was dark and there were no lights on in the house. He walked inside and seconds later heard Lora scream in the bedroom. He ran to the bedroom and saw her kneeling on the side of the bed holding her head. A drawer was pulled out. There was blood on the floor, and a sippy cup was nearby. Defendant called Lora's mother to pick up Anthony while he took Lora to the hospital. He said he tried to get answers from Lora as to what had happened as he changed her clothes and then drove her to the hospital. When they arrived, Lora started screaming incoherently and accusing him of beating her. Later the police arrived, and they took him back to his home. He showed them where he had found Lora and "explained a quick history of whatever has been going on with her." After the police left, Lora returned home with her mother. Celmer stayed for a while, and defendant let Lora go to sleep. He denied that Lora told her mother in his presence that he had smashed her head or that Lora insisted he get the sweatshirt she had been wearing from the wastebasket. He said that the next morning Lora's uncle, Mr. Woods, returned after taking her to breakfast and told him that Lora had to get help. Defendant said Lora had just signed herself out of a rehabilitation program and that he had no power to keep her there. He denied that Lora or Celmer ever told him Lora wished to leave him, and he said he never had any intention of ending the marriage.

Defendant testified that when he arrived home on February 5, the night of the snowstorm, Lora had been drinking a lot. He found a bottle of Grand Marnier in the garage. He fed the children and went out to use the snowblower. At about 5 p.m. the electricity went out in the neighborhood. Later he became angry after Anthony knocked over a candle because Lora was downstairs instead of watching him. She said she had been looking for a flashlight, but defendant told her, "I know you are probably looking for liquor. . . . [A]ll you had to do was watch him, and you couldn't even do that." Defendant said he wanted Celmer to pick them up and take them to her house, but she said the roads were bad and did not want to chance it.

He said later that night he and the children were asleep when he heard Lora fall in the hallway coming out of the bathroom. He said the hallway was narrow and carpeted with no furniture in it. He said he helped Lora walk about twenty feet to a couch in the living room. He knew of no other time that she fell. He heard the telephone rang about fifteen times, but he did not answer because he knew it was Celmer and he did not want to speak with her. However, he said he may have had a telephone conversation with her later in the evening and might have mentioned that Lora was drinking when he got home and that she had tripped in the hallway.

Defendant said the following morning he awoke early to take care of some errands. When he returned at about 9 a.m., it appeared that Lora had been drinking. She said her stomach did not feel well, and she did not eat much. Defendant went out to use the snowblower. When he came in to check on things, Lora was lying down and told him her stomach hurt. She tried using a heating pad, and he suggested she take a bath. He said Celmer called that morning and spoke to Lora. Later he noticed redness in Lora's finger area, and Lora told him the hot tub cover had fallen on her hand.

Defendant testified that when he left to walk the dog that afternoon, Lora was in the kitchen. When he returned, he found her on the kitchen floor with a brownish fluid coming out of her mouth. She was not breathing and had no pulse. He tried CPR but did not know how to do it. He called 9-1-1 and then Celmer's pager and his father. He said the first police officer to arrive tried CPR. An ambulance crew came a few minutes later and hooked Lora up to some kind of machinery to try to revive her. He said the police made him wait in the living room while paramedics were trying to revive her in the kitchen. When the ambulance took Lora away, the police took him to the hospital. He said he stayed in a waiting room until a doctor came out and told him Lora had died.

Defendant's expert witness was Dr. Michael Baden, a forensic pathologist and medical examiner for the New York State Police. He examined Lora's body about a week after the autopsy and reviewed the autopsy report, the x-rays, the autopsy photographs, and the slides prepared by Dr. Hutchins. It was his opinion that to a reasonable degree of medical certainty the cause of Lora's death was a single blunt-force injury to the duodenum that occurred one or two days before her death and resulted in peritonitis. He said that since there was no evidence of trauma to the outer skin layer in the duodenal area, the trauma was likely the result of a fall against an object such as a chair edge or bathroom faucet rather than a punch or kick that would cause more trauma to layers of the outer skin. He did not agree with Dr. Hutchins that the injury to her chest was a cause of death because he believed the chest injury was old and unrelated. While he could not exclude the possibility that Lora was struck and the cause of her death was homicide, he said that the cause of the trauma causing her death was consistent with her falling while intoxicated. He said that her death was best characterized as either accidental or undetermined.

While he noted that one possible explanation was that Lora suffered a convulsive seizure, which could explain the rapid development of rigor mortis, Dr. Baden was more confident that the duodenal rupture was more likely due to an accidental occurrence twenty-four to forty-eight hours before death. He added that while a duodenal laceration would be painful, the extent of pain would vary, and an active alcoholic under the influence might not feel the pain. A high fever or rapid pulse could develop from the injury, but the person would remain conscious until collapsing. With regard to Lora's abdominal pain, Dr. Baden also said that an alcoholic might suffer such pain and act confused as with a symptom of withdrawal.

Dr. Baden said that he noted more than eighty wounds on Lora's body, including fractures. He testified that they were consistent with falls by alcoholics who do not protect themselves when they fall down or bump into things. However, the twenty healing fractures he noted were by no means typical for an alcoholic. Because the color of her ribs was pale and Lora had a history of low calcium, he concluded that the photograph of Lora's ribs revealed osteoporosis changes which can cause bones to fracture easily.

Dr. Baden agreed with Dr. Hutchins that there was one acute or fresh fracture of a rib that had not previously been broken and four acute refractures, which he said could easily have occurred during CPR. He said the intercostal hemorrhaging Dr. Hutchins found associated with the refractures could have been the result of leakage from Lora's blood vessels caused by CPR attempts after her death because there would have been greater hemorrhaging if the refractures occurred while she was alive. On cross-examination, Dr. Baden conceded his opinion that the rib fractures were caused by post-mortem CPR did not explain Dr. Hutchins' observations that the acute rib fractures were aligned with abrasions and contusions on Lora's torso or the subcutaneous and intercostal muscle hemorrhaging or the blood clotting and visceral and parietal pleural thickening and contusions of the right lung.

Following the jury verdict finding defendant not guilty of murder but guilty of aggravated manslaughter, contrary to N.J.S.A. 2C:11-4, he was sentenced to a custodial term of seventeen and one-half years with eighty-five percent to be served before parole pursuant to the No Early Release Act. On appeal, defendant makes the following arguments:

POINT I - THE PROSECUTOR'S SUMMATION COMMENTS DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL. (Not Raised Below.)

POINT II - ADMISSION OF OTHER CRIMES EVIDENCE HEREIN DEPRIVED APPELLANT OF A FAIR TRIAL.

POINT III - THE COURT ERRONEOUSLY ADMITTED HEARSAY AND OTHER EVIDENCE THAT PREJUDICED APPELLANT.

POINT IV - THE CUMULATIVE EFFECT OF THE ERRORS DISCUSSED HEREIN DEPRIVED APPELLANT OF HIS RIGHT TO A FAIR TRIAL.

Defendant's first argument requires us to revisit the issue of prosecutorial misconduct based on allegations of improper and unduly prejudicial comments in summation. More than forty years ago, Justice Francis wrote, "Appellate courts continue to be too much occupied in review of prosecutor's summations." State v. Thornton, 38 N.J. 380, 400 (1962). The issue, unfortunately, has not been abated; we have been compelled to note, rather, that it is an issue which arises with increasing frequency. State v. Jenkins, 299 N.J. Super. 61, 69 (App. Div. 1997).

Prosecutors are not simply trial lawyers representing the State. State v. Torres, 328 N.J. Super. 77, 94 (App. Div. 2000). They are constitutional officers representing the people of the State with the responsibility not only to ferret out, pursue and prosecute the guilty, but also to promote fairness and protect the basic rights of all citizens. See Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 633, 79 L. Ed. 2d 1314, 1321 (1935); State v. Loftin, 146 N.J. 295, 386 (1996); State v. Ramseur, 106 N.J. 123, 320 (1987); State v. Farrell, 61 N.J. 99, 104-05 (1972). An overzealous prosecutor damages justice. A prosecutor acting to promote fairness is proud proof of justice. Since comments of the prosecutor carry the full authority of the State, State v. Frost, 158 N.J. 76, 87-88 (1999), "a prosecutor must refrain from improper methods that result in a wrongful conviction, and is obligated to use legitimate means to bring about a just conviction." State v. Smith, 167 N.J. 158, 177 (2001).

Prosecutorial misconduct warrants reversal when it is so egregious that it operates to deprive a defendant of a fair trial. State v. Nelson, 173 N.J. 417, 463 (2002); State v. Papasavvas, 163 N.J. 565, 616, mod. on other grounds, 164 N.J. 553 (2000); State v. Timmendequas, 161 N.J. 315, 575 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001); Ramseur, supra, 106 N.J. at 322; State v. Allen, 337 N.J. Super. 259, 267 (App. Div. 2001), certif. denied, 171 N.J. 43 (2002). In order to determine whether the remarks of the prosecutor sub judice warrant reversal of defendant's conviction, we must consider the following: (1) whether defense counsel made timely and proper objections to the comments; (2) whether the remarks were promptly withdrawn; (3) whether the court directed the remarks be stricken from the record and instructed the jury to disregard them. Frost, supra, 158 N.J. at 83.

Defendant claims ten or more comments by the prosecutor were blatantly improper, but no objection was made to the summation. Ordinarily, a failure to interpose a timely objection results in an appellate determination that the remark did not constitute prejudicial error warranting reversal. State v. Josephs, 174 N.J. 44, 124 (2002); Timmendaquas, supra, 161 N.J. at 576; State v. Bogen, 13 N.J. 137, 141-42 (1953); Farrell, supra, 61 N.J. at 106. The failure of counsel to make an objection deprives the court of an opportunity for corrective action. Timmendaquas, supra, 161 N.J. at 576; Frost, 158 N.J. at 84; State v. Irving, 114 N.J. 427, 444 (1989). Since no objection was made, our scope of review is governed by the plain error standard as to whether the remarks, if improper, substantially prejudiced defendant's "fundamental right to have the jury fairly evaluate the merits of [his] defense, and thus had a clear capacity to bring about an unjust result." State v. Johnson, 31 N.J. 489, 510 (1960); State v. Macon, 57 N.J. 325, 335-36 (1971); R. 2:10-2. In reviewing the remarks of the prosecutor, we are also mindful that "a prosecutor cannot be expected to present the State's case in a manner appropriate to a lecture hall." Johnson, supra, 31 N.J. at 511; State v. DiPaglia, 64 N.J. 288, 305 (1974), (Clifford, J. dissenting). Furthermore, we assign weight to the fact that the trial court gave the standard jury instruction that the jurors alone are the sole judges of the facts, the credibility of the witnesses, the weight to be attached to the testimony, and that any comments, statements and arguments made by counsel in their summations were not evidence. We also will examine the defense summation to determine if the challenged remarks by the prosecutor "were a measured response to defendant's summation made in an attempt to 'right the scale.'" State v. Murray, 338 N.J. Super. 80, 88 (App. Div.), certif. denied, 169 N.J. 608 (2001) (quoting State v. Engel, 249 N.J. Super. 336, 379 (App. Div.), certif. denied, 130 N.J. 393 (1991)).

We conclude that, with few exceptions, the remarks of the prosecutor which the defendant claims warrant reversal were based on the evidence, constituting fair comment on the testimony or were responsive to the summation of defense counsel.

Defendant first asserts that the prosecutor improperly argued that the individual the jury saw at trial was not the true defendant but "a carefully constructed thing." Defendant claims the remark denigrated him and his attorney by implying that his defense was staged to trick the jury. See State v. Pindale, 249 N.J. Super. 266, 286 (App. Div. 1991) (holding that it is improper to suggest that defense counsel's role is to try to confuse the jury). We disagree. Defendant overlooks the fact that the jury observed him on the witness stand and, moreover, the defense summation made defendant's demeanor an issue, stating at one point that the jury should "[l]ook at him. Look at him. You heard him testify. Look at him. You have to be convinced that he beat her to death." Later, defense counsel told the jury defendant did not "wince, blink or shudder at all during that entire cross-examination. He answered every question. He looked everybody in the eye." It was fair comment for the prosecutor to contrast the demeanor of the defendant on the witness stand with the aggressive and disrespectful behavior attributed to him by several of the State's witnesses.

The defendant next argues the following portion of the prosecutor's summation constituted plain error because the prosecutor improperly inserted his personal life into the case to contrast it with the behavior of the defendant. The prosecutor stated:

Now, for myself and I guess for anyone with kids, the commitment becomes manifest when you're with your wife when she gives birth to your first child. My second girl, Katherine, was born some six months before Angela Donato. And I knew, I knew, that the theoretical promise to support and love and cherish after being handed those children and holding those children had become something quite different, being with my wife as she gave birth, seeing the pain, and seeing the baby and holding the babies, if she, and I'm sure this is true of any husband, any man of any shred of decency to him, if she became ill, that is, if she suffered - if she suffered either after the first birth or after the second birth or at any time after that or anything, there is nothing, there is nothing I would not have done to help her. Any person with any sense of decency would move heaven and earth to help the woman who had delivered their children. Although [it has] been asserted again and again what a wonderful supportive man John Donato is, this is a guy who wouldn't even take days off from work, who had to be ordered by his supervisor who knew he had 160 days coming and knew that sick days for family problems were a totally accepted, completely legitimate way of using sick time and yet never, in the course of all these problems, did he ever take extended time to help, the time, the kind of commitment that it would have taken to really get Lora well. Never.

In part the prosecutor's remarks responded to the summation of defense counsel when he asserted that defendant stayed in the marriage because he was committed to Lora and that he tried to help her. Defense counsel stated:

The State wants you to believe that instead of [leaving the marriage] he took the drastic step of beating her to death. Why? What sense does that make? What sense does it make when you look at the John Donato history? Stood by this girl, through thick and thin, through all the attempts at rehabilitation. He was there for her.

. . .

Who was there for her? Who was there every single day? Not twice a week, not once in a while but every single day. Who came home everyday from work and had to take care of the kids and take care of his wife? He did . . . the easiest thing for him to do is leave.

And what did he tell you? I couldn't. I couldn't leave my wife. I loved her . . . I wouldn't disappoint her again. I would not run out on her. I stayed there. I stayed and tried to help.

The prosecutor's point that defendant did not support Lora by encouraging her to enter long-term inpatient therapy and failing to take his many sick days to support her was based on the testimony of Celmer, Dr. Ahkami, defendant's supervisor and defendant himself. Unlike State v. Lockett, 249 N.J. Super. 428, 433-35 (App. Div.), certif. denied, 127 N.J. 553 (1991), the prosecutor in the instant case did not fabricate facts, glorify the victim, accuse defense counsel of chicanery or tell the jury that he personally did not believe defendant. Rather, he sought to destroy defense counsel's picture of defendant as a caring and supportive husband. This was proper advocacy.

However, the comments of the prosecutor relating to his devotion to his own wife and children were clearly improper. While not as severe as expressions of a personal opinion into a case as to guilt, see Jenkins, supra, 299 N.J. Super. at 70, the clear inference is that a caring husband with a "sense of decency" like the prosecutor would not respond to the situation as did the defendant. The trial prosecutor is chided for this comment with a warning issued to his office that further trial tactics of this sort will result in formal notification to the Office of the Attorney General for action beyond a mere reprimand. However, because Judge Marmo properly instructed the jury that comments of counsel did not constitute evidence, we conclude that the improper comments of the prosecutor did not constitute plain error which deprived defendant of a fair trial. See State v. Watson, 224 N.J. Super. 354, 362 (App. Div.), certif. denied, 111 N.J. 620, cert. denied, 488 U.S. 983, 109 S. Ct. 535, 102 L. Ed. 2d 566 (1988). Finally, we must add that defense counsel also improperly brought his personal views into the case by stating:

What are people who love this woman, close to this woman, going to say? She was a falling-down drunk? I couldn't say that about my kid. I don't care how drunk she was. I could never say it. I could never admit my kid is a falling-down drunk. I mean, I just couldn't do it.

The defendant next argues that comments of the prosecutor accused defendant and defense counsel of attempting to trick or hoodwink the jury in stating that defense counsel positioned himself near the jury "to make it absolutely necessary for [defendant] to look up and look as though at least he was looking in [the jurors'] eye[s]." However, the prosecutor added, "[i]f you can remember one time that the guy actually looked up and looked you in the eye you're doing better than me. You are, of course, in a better position to do it. . . ." By this qualification, the prosecutor avoided asking the jury to adopt his observations. See Jenkins, supra, 299 N.J. Super. at 70. Moreover, unlike Pindale, supra, 249 N.J. Super. at 286, the prosecutor did not state that the defense role in the case was to confuse or hoodwink the jury. Furthermore, the prosecutor once again was responding to a comment made by defense counsel, who stated at one point in his summation that the defendant "looked you in the eye when he testified. You think that's a man who would beat somebody to death?" and "the basic issue, the basic issue in the case is that John Donato took the stand. John Donato looked at you. John Donato denied he did anything wrong." We find that in those circumstances the remark by the prosecutor was harmless.

Defendant next argues that the prosecutor improperly denigrated Wayne Patrolman Scott Agnes by referring to him as Inspector Clouseau. The prosecutor is entitled to a vigorous and forceful presentation of the State's case which can be couched in trenchant terms, Pindale, supra, 249 N.J. Super. at 285. He was entitled to criticize Agnes' action in failing to arrest defendant following Lora's complaint of violence despite standard guidelines in domestic violence cases and in losing pictures he took at the Donato home. While the comparison to a bumbling fictional detective may have been gratuitous, it was not improper.

Defendant also claims that the prosecutor's summation improperly attacked Dr. Baden, characterizing his testimony as "ludicrous," accusing him of being purposely inaccurate and implying that Dr. Baden was unprepared because the case was not as "high profile" as other cases in which he has testified. Defendant argues that these attacks were designed to inflame the jury by suggesting that Dr. Baden was conspiring with the defendant to hide the truth.

Without an adequate foundation in the record, a prosecutor's implication that expert testimony has been contrived is totally unwarranted. State v. Rose, 112 N.J. 454, 518-19 (1988). However, the Supreme Court has acknowledged that if a prosecutor's arguments are based on the facts of the case and reasonable inferences therefrom, what is said by way of appeal or denunciation is not a ground for reversal. Johnson, supra, 31 N.J. at 510. Here, the prosecutor's characterization of Dr. Baden's testimony as "ludicrous" referred to his suggestion that the laceration to Lora's liver was caused by CPR efforts when the testimony was that by the time the paramedics attempted to administer CPR, Lora was dead. Moreover, Dr. Hutchins testified that microscopic sections of Lora's liver in the area of the laceration revealed healing cells that would not have traveled to the injury site if she had been dead at the time the laceration was made. Therefore, the autopsy and related findings which Dr. Baden testified he reviewed indicated that the liver laceration occurred while Lora was alive. Under these circumstances while the term "ludicrous" may have been trenchant, it was not without foundation in the trial record. That portion of Dr. Baden's testimony which the prosecutor characterized as "purposely inaccurate" related to his statement that Lora must have complained of a stomachache for two or three days before her death when any complaints could be significant in estimating when her duodenal rupture occurred. Since all the reports and testimony were that Lora made no such complaint before the morning of the day of her death, the prosecutor's comment was not improper.

At another point in his summation, the prosecutor stated accusatorily that Dr. Baden was covering up defendant's lies, and he based the comment on the testimony of Dr. Baden that Lora could have been alive when defendant left to walk the dog shortly before 4 p.m. However, rigor mortis was observed before 5 p.m. by the emergency medical technicians and the emergency room doctor, which would indicate that Lora had been dead hours before defendant left to walk the dog. While the prosecutor's language was strong, the inference did have a basis in the record.

Finally, the prosecutor's statements that Dr. Baden did not devote as much attention to the instant case as he did to more high-profile cases was based on errors acknowledged by Dr. Baden during his cross-examination. The expert testimony as to the time and cause of death was crucial, and it was within the realm of fair comment for the prosecutor to provide the jury with plausible reasons why it should give less weight to Dr. Baden's testimony than that of Dr. Hutchins.

Defendant next contends that Judge Marmo erred in admitting N.J.R.E. 404(b) evidence of domestic violence and instances of defendant's past bad conduct toward Lora. N.J.R.E. 404(b) permits receipt of such evidence under the following circumstances:

Evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that he 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.

As has been repeatedly been noted, R. 404(b) is a rule of exclusion as opposed to one of inclusion, see e.g., State v. Nance, 148 N.J. 376, 386 (1997). It is designed to avoid the danger of a conviction based upon a jury perception that the accused is a "bad person." State v. Stevens, 115 N.J. 289, 302 (1989); Ramseur, supra, 106 N.J. at 265. The Supreme Court in State v. Cofield, 127 N.J. 328 (1992), enunciated a four-prong test of general application for admission of such evidence. It must be relevant to a material issue in genuine dispute. It must be similar in kind and reasonably close in time to the offense charged. It must be clear and convincing, and its probative value must not be outweighed by its prejudice. Id. at 338; State v. Marrero, 148 N.J. 469, 482-83 (1997). Moreover, if 404(b) evidence is admitted, it must be coupled with a limiting instruction by the trial judge cautioning the jury that such evidence is not admissible to show the propensity of a defendant to commit such acts. Cofield, supra, 127 N.J. at 334. Admitting evidence of other crimes, wrongs or acts is left to the discretion of the trial judge. Marrero, supra, 148 N.J. at 483; State v. Crumb, 307 N.J. Super. 204, 232 (App. Div. 1997), certif. denied, 153 N.J. 215 (1998). As with other evidential rulings by a trial judge, our scope of review is limited.

We will give substantial deference to a trial court's evidentiary rulings. 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). Rulings under 404(b) admitting evidence of other crimes or wrongs are reviewed under the same narrow and deferential standard of whether the admission of such evidence was an abuse of discretion. Marrero, supra, 148 N.J. at 484; State v. Erazo, 126 N.J. 112, 131 (1991); Ramseur, supra, 106 N.J. at 265.

Judge Marmo conducted a three-day pre-trial hearing on the admissibility of testimony sought to be introduced by the prosecutor under 404(b). Dr. Ahkami, hospital social worker Lisa Marie Voelzke, Celmer, John Woods, Gail Woods and Donna DeMatteo, a neighbor and friend of Lora's, testified at the hearing about defendant's treatment and alleged abuse of Lora. A statement by Naumoff also was submitted for review by the judge. On January 13, 2003, Judge Marmo issued his decision as to which witnesses would be permitted to testify and what portions of their testimony were to be excluded under N.J.R.E. 404(b). He declared in part the following:

The evidence of a consistent pattern of domestic violence is reasonably a part of what can be shown to negate the claim of accident. The State is entitled in the context of the evidence in this case to show that the defendant's claim of accident is fallacious. The State was allowed this evidence where the credibility of the person testifying is not in dispute with the Court where the victim's statements were made in the presence of the defendant, who was confronted with the allegations, where the injuries were visible at the time, where the victim's statement[s] were made to a treating psychiatrist or mental [health professional].

In reaching his decision as to which witnesses could testify as to 404(b) matters and what, if any, limitations were to be placed upon such testimony, Judge Marmo addressed each of the Cofield prongs. He found the proffered testimony was relevant since the medical examiner would testify that Lora's death was a homicide in contrast to defendant's statements to the police that his wife's death resulted from either an alcohol-related accident or self-inflicted injury. Moreover, the defense acknowledged that Dr. Baden would testify that an accident or an undetermined cause rather than homicide resulted in Lora's death. Accordingly, Judge Marmo properly found that testimony as to domestic violence was relevant to the central disputed issue of cause of death.

As to the second prong of whether the other wrongs were similar in kind and reasonably close in time to the charged offense, Judge Marmo noted that the alleged incidents of domestic violence described by the witnesses were by the same person, against the same victim, and occurred on a regular basis in the same location. Nonetheless, he put as a reasonable time limit on the domestic violence evidence, the thirteen-month period between December 27, 1999, the date Lora and defendant both went to Dr. Ahkami, and February 6, 2001, the date of Lora's death.

As to the third prong that the 404(b) evidence of other bad acts be clear and convincing, Judge Marmo made credibility findings that the testimony by Dr. Ahkami, Voelzke, Celmer, Mr. and Mrs. Woods, as well as the proffer from Naumoff, constituted clear and convincing evidence. He stated:

The evidence of prior assaults is clear and convincing. I can readily make that determination. . . . [N]o issue has been presented to me about the credibility of any reporter of these events who has testified here at these proceedings. Indeed, in my observations of the witnesses who did testify, I have no reservation[s] about their credibility and haven't identified any challenge to their credibility. There are numerous citings of injuries contemporaneous with the report[s] of those injuries and those assaults. They are documented by medical personnel and psychiatric personnel as well.

As to the fourth prong, Judge Marmo found that the evidence of other crimes or wrongs had great value in terms of the major issue in the case, whether Lora's death was caused by accident or was the result of a homicide. He stated that the history of Lora's alcoholism given by defendant to the police and the history of domestic abuse set forth in medical records as well as the proposed testimony of the 404(b) witnesses were "important for the jury's proper understanding and assessing the critical issue in this case, and that is whether or not this was . . . an accidental death or whether or not this [was] an intentional, deliberate act." See Nance, supra, 148 N.J. at 390; State v. M.L., 253 N.J. Super. 13, 22 (App. Div. 1991), certif. denied, 127 N.J. 560 (1992); State v. Engel, 249 N.J. Super. 336 (App. Div.), certif. denied, 130 N.J. 393 (1991). Judge Marmo further found that the probative value of the testimony was not outweighed by resulting prejudice to the defendant.

Accordingly, Dr. Ahkami was permitted to testify about Lora's communications to him in the course of her treatment beginning with the November 27, 1999, visit when she appeared with two black eyes and was accompanied by the defendant. Judge Marmo found the testimony related to Dr. Ahkami's observations of Lora's injuries, the defendant's hostility, and Dr. Ahkami's confrontation with defendant about beating his wife. Similarly, he ruled that Mrs. Woods could testify about her observations of Lora at Angela's christening as well as during her visits with Lora at her home and in the hospital on January 26, 2001. She also was permitted to relate telephone calls she received from defendant in which he asked her to have Lora tell him where the liquor was hidden and that during one such call she heard Lora yell, "Don't hit me." Other proffered conversations between Lora and Mrs. Woods when defendant was not present were excluded.

Judge Marmo also permitted Mr. Woods to testify about his observations of Lora's injuries on the times he took her to the hospital and his subsequent confrontations with the defendant. The judge explained:

[Mr. Woods] could testify to the confrontation with the defendant, whatever was said between [him] and the defendant and no one would understand the sense of that unless they had the prior information, which is, or statements that are, contemporaneous with [the] injuries and the injuries are observed by John Woods allegedly.

Therefore, while Mr. Woods also was allowed to testify that he went to the hospital January 16, 2000, and saw that Lora's lip was injured, he was not permitted to say that Lora accused the defendant of hurting her.

Judge Marmo's most extensive ruling related to the proposed testimony of Celmer. He concluded that since defendant denied any physical abuse of Lora, Celmer could testify about those instances she confronted defendant and he did not deny striking Lora. She was allowed to testify about Lora's recitation of her injuries on September 26, 2000, because defendant was then within earshot and Celmer immediately confronted him with Lora's accusations. The judge reasoned that the conversation between Celmer and defendant flowed from what Lora had said, and, consequently, the contextual link permitted Celmer to relate Lora's statements.

Celmer also was permitted to testify about what Lora told her on November 1, 2000, after her return from the hospital following a head injury because defendant was present. She also was permitted to relate her phone conversation with defendant's parents during which she heard Lora cry, "help me," because defendant arrived during that conversation. However, Celmer was not permitted to testify about Lora's accusation that defendant sexually abused her because Judge Marmo found that

While I recognize that that kind of information does fall within the context of this ruling and indeed does fall within the context of the case law because . . . allegations of an abusive relationship and abuse can take many forms, . . . I'm concerned about piling on being careful to strike the balance in the right way . . . I think on balance the prejudice here is too great.

While Judge Marmo found that the testimony of Lora's friend Donna DeMatteo at the N.J.R.E. 404 hearing was credible and reliable, he excluded her testimony of long telephone conversations with Lora as inadmissible hearsay and cumulative testimony. Therefore, she was not permitted to testify.

Finally, Voelzke, the hospital social worker, was allowed to testify as to her observations of Lora's injuries and her contemporaneous statements, but she could not relate Lora's statements of past injuries and domestic violence.

Defendant argues that even accepting the premise that evidence of domestic abuse was pertinent to address the issue of whether Lora's death was a homicide or the result of an accident, it was error to permit testimony of multiple incidents of abuse more than two months prior to Lora's death. He offers no rationale for limiting the period to two months, but we note that this would eliminate the majority of testimony of the alleged abuse and exclude Dr. Ahkami's testimony about defendant's anger and lack of impulse control.

While "temporal remoteness of other-crime evidence affects . . . [the] prejudicial effect on a defendant," Marrero, supra, 148 N.J. at 491, the other-crime evidence admitted in the instant case was "reasonably close in time" to the homicide. Cofield, supra, 127 N.J. at 338. See also State v. Eatman, 340 N.J. Super. 295, 300-02 (App. Div.), certif. denied, 170 N.J. 85 (2001) (testimony of prior attacks on various domestic partners over a period of seventeen years was deemed admissible to determine mental state); State v. Krivacska, 341 N.J. Super. 1, 41 (App. Div.), certif. denied, 170 N.J. 206 (2001) (similar sexual assaults about two years apart deemed "reasonably close in time"); State v. Baluch, 341 N.J. Super. 141, 191 (App. Div.), certif. denied, 170 N.J. 89 (2001) (abuse of victim by defendant over a seventeen-month period before victim's death deemed "reasonably close in time"). See also State v. Covell, 157 N.J. 554, 570 (1999) (sixteen months between sexual offenses); State v. G.S., 145 N.J. 460, 469 (1996) (sexual abuse of victim one year previous deemed admissible for trial on sexual assault charges).

We find no abuse of discretion by Judge Marmo in his rulings permitting testimony of other crimes or wrongs within the thirteen months preceding Lora's death. We are not persuaded by defendant's argument that it was error to allow testimony of multiple incidents of abuse. To the contrary, we find that Judge Marmo made a concerted effort to limit such testimony and used proper discretion in permitting the N.J.R.E. 404(b) testimony at the trial.

Defendant next argues that it was plain error to permit the State to introduce 404(b) testimony in its case in chief because defendant was then forced to present proofs as opposed to relying on the presumption of innocence and reasonable doubt. He also says the fact-sensitive analysis demanded by Cofield mandates waiting until the conclusion of the State's proofs and the defense case before ruling on the issue. The argument is contrary to the law of this State. In Baluch, we considered a similar argument and held that 404(b) evidence of conduct was admissible without respect to order of proof.

Significantly, neither N.J.R.E. 404(a)(1) or (b) prohibits the introduction of "bad character" evidence in the State's case in chief if it is offered for a purpose other than proving the accused's propensity toward the crime charged.

[Baluch, supra, 341 N.J. Super. at 189.]

See also State v. DiRienzo, 53 N.J. 360, 384 (1969); United States v. Torres, 519 F.2d 723, 727 (2d Cir.), cert. denied, 423 U.S. 1019, 96 S. Ct. 457, 46 L. Ed. 2d 392 (1975).

Furthermore, it was made clear to all including the trial judge that the defense theory was that Lora's death was not a homicide, but rather a death resulting from an accident or undetermined cause. During the pre-trial hearing, Judge Marmo specifically inquired of defense counsel as to whether the defense would simply put the State to its proofs in the face of the testimony of the medical examiner and the uncontested fact that defendant was the only other adult present in the home with Lora for more than twenty-four hours. Experienced and skillful defense counsel stated to the court that the defendant would present a defense case. Accordingly, defendant's argument is totally without merit. See LaGatta v. United States, 512 U.S. 1224, 114 S. Ct. 2717, 129 L. Ed. 2d 842 (1994); State v. Rivera, 6 F.3d 431, 443 (7th Cir. 1993), cert. denied, 510 U.S. 1130, 114 S. Ct. 1098, 127 L. Ed. 2d 411 (1994).

Defendant next argues the limiting instructions to the jury as to specific purposes of 404(b) were insufficient or inadequate. Once again, since no objection was made to the instructions, the argument is reversible under the plain error standard.

When 404(b) evidence is admitted, the trial judge must explain to the jury the permitted and prohibitive purposes of the evidence with reference to the factual context of the case. G.S., supra, 145 N.J. at 472; Covell, supra, 157 N.J. at 574; Marrero, supra, 148 N.J. at 495; Cofield, 127 N.J. at 340-41; Stevens, supra, 15 N.J. at 304. Judge Marmo gave instructions to the jury at the outset of the case, during the trial and in his jury charge in accord with proper procedure. State v. Angoy, 329 N.J. Super. 79, 89-90 (App. Div.), certif. denied, 165 N.J. 138 (2000). In each instance, he cautioned the jury that the evidence could not be used to conclude that defendant was a "bad person" or had a general disposition to commit crimes, but that it was admitted only as it might bear upon the issue of intentional conduct by defendant in refutation of accidental or self-inflicted injury and could be disregarded if the jury found such testimony had no bearing on their deliberations. Considered as a whole, the repeated limiting instructions by Judge Marmo and his jury charge more than adequately explained the limited relevance of the other conduct evidence, advised the jurors as to the proper use they could make of such evidence, assuming they believed it was true, and explicitly warned that such evidence could not be used to prove the general disposition of the defendant to commit the offense with which he was charged. Accordingly, defendant's argument carries no weight.

Another evidential issue to which defendant commands our attention is the admission of the testimony of several witnesses as to what Lora told them. While he argues that Judge Marmo improperly permitted six instances of testimony as to prior incidents of domestic violence which were inadmissible hearsay, only two were admitted over his objection. Defendant maintains that the court improperly admitted these statements under the hearsay exception for "present sense impressions" or "excited utterances" under N.J.R.E. 803(c)(1) and (2).

N.J.R.E. 803(c) permits the admission of extra-judicial statements of a declarant as substantive evidence regardless of the availability of the witness. The hearsay exceptions for present sense impressions and excited utterances make admissible statements of observation as well as statements describing or explaining an event or condition. N.J.R.E. 803(c)(1). A present sense impression is

A statement of observation, description or explanation of an event or condition made while or immediately after the declarant was perceiving the event or condition and without opportunity to deliberate or fabricate.

[Ibid.]

An excited utterance is defined as:

A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition and without opportunity to deliberate or fabricate.

[N.J.R.E. 803(c)(2).]

The preliminary inquiry for the trial judge under each rule is whether the declarant had an "opportunity for deliberation and reflection" including "the element of time, the circumstances. . ., the mental and physical condition of the declarant, the shock produced, [and] the nature of the utterance. . ." State v. Branch, 182 N.J. 338, 360 (2005) (quoting Riley v. Weigand, 18 N.J. Super. 66, 73 (App. Div. 1952)); see also State v. Williams, 106 N.J. Super. 170, 172 (App. Div.), certif. denied, 55 N.J. 78 (1969), cert. denied sub nom. Williams v. New Jersey, 397 U.S. 1057, 90 S. Ct. 1405, 25 L. Ed. 2d 675 (1970).

The determination of whether a particular statement qualifies as a present sense impression or excited utterance is very fact-specific. State v. Lazarchick, 314 N.J. Super. 500, 522 (App. Div.), certif. denied, 157 N.J. 546 (1998). Neither rule requires that the statement be made contemporaneously with the event being described. See State v. Long, 173 N.J. 138, 159-60 (2002); Baluch, supra, 341 N.J. Super. at 181-82. The rationale for the excited utterance exception is that "'excitement suspends the declarant's powers of reflection and fabrication,' minimizing the possibility that the utterance will be influenced by self interest and therefore rendered unreliable." Long, supra, 173 N.J. at 158 (quoting from 2 McCormick on Evidence, 272, at 204-05 (5th Ed. 1999)). See also State v. Rivera, 351 N.J. Super. 93, 100 (App. Div. 2002), aff'd o.b., 175 N.J. 612 (2003). Indeed, even a somewhat lengthy delay does not always prevent a statement from being admissible under N.J.R.E. 803(c)(2) because the rule for the exception focuses on whether nervous excitement was generated, and whether there was a reasonable proximity in time between the event and the declarant's description with a lack of opportunity to deliberate or fabricate. Long, supra, 173 N.J. at 159-60; State v. Lyle, 73 N.J. 403, 413 (1977); see, e.g., State v. Conigliaro, 356 N.J. Super. 54, 64 (App. Div. 2002) (utterances by a child three hours after incident qualified as excited utterances); State v. Bass, 221 N.J. Super. 466, 482-83 (App. Div. 1987), certif. denied, 110 N.J. 186 (1988) (declaration by five-year-old under nervous excitement as a result of observing the fatal beating of his younger brother six hours before was admissible).

The first conversation between Lora and Celmer which defendant asserts was erroneously admitted took place on September 25, 2000, when Lora called her mother and in a "shaky and nervous voice" told her that defendant hurt her and that the pain was very bad. When Celmer told Lora she would go to her, Lora responded that would make things worse because defendant would know that she had told Celmer what had happened. The following morning Celmer saw for herself that Lora had hair missing on the side of her head, bruising under her breasts, a black eye, a bruised lip and a swollen nose. Celmer later found the missing hair in a clump in the kitchen garbage along with bloody paper towels. Lora then told Celmer that defendant had dragged her on the floor, beaten her, punched her in the stomach and stomped her on her back.

Obviously these statements to her mother did not occur contemporaneously with Lora being beaten. They were made within twenty-four hours of her telephone call and were consistent with Lora's description of the earlier events. Their reliability also was confirmed by Celmer's observations of Lora's condition as well as the discovery of hair and bloody towels in the kitchen pail. Under these circumstances there was a sufficient and reliable basis for admission of the statements.

Defendant next argues that inadmissible hearsay testimony was admitted of Celmer's testimony of her telephone conversation on January 26, 2001, with defendant's mother when she heard Lora cry in the background, "Help me, I need help. I don't want this anymore. I don't want to be hurt anymore. He's got to stop hitting me in the head. Tell him to stop hitting me, Mommy, help me. Please help me, Mommy." When Celmer arrived at the senior Donatos' home an hour later, Lora was on her hands and knees in the corner of the kitchen, saying that defendant beat her and that she wanted to be taken away before the defendant arrived. Celmer observed bruises on Lora, and immediately took her to the hospital where she overheard Lora make the same comment as to defendant beating her to medical personnel and Dr. Ahkami. The hospital records also confirmed that Lora had a bruise on one of her eyelids, a cut on her forehead, a swollen cheek, a bald spot on her head, and bruises on her thighs. Although the record does not indicate how much time passed between the infliction of injuries and Lora's excited utterances to her mother during the telephone conversation, the reliability of the statements was established by Lora's comments at the hospital, which were admissible under N.J.R.E. 803(c)(4), as statements made for purposes of medical diagnosis and treatment.

Also admissible under the excited utterance exception was Celmer's account of her telephone conversations with defendant the night before Lora's death during which she heard Lora crying and telling defendant to stop hitting her as well as the later statements from Anthony that his mother was on the floor and his father was hitting her. While defendant argues that Anthony's excitement was the result of his knocking over a candle, it is preposterous to suggest that a child's comments as to contemporaneous physical violence between his parents was not an excited utterance.

Defendant next maintains two hearsay statements by Mr. Woods were improperly admitted. The first was the March 2000, call from Lora asking him to take her to the hospital because defendant had hit her again. When Mr. Woods arrived at the Donato home, Lora was upset and crying, and Mr. Woods saw her arms were bruised. He then confronted defendant about the beating. The second was a later call from Lora again asking him to drive her to the hospital after defendant struck her. This time Mr. Woods saw a four- to five-inch bruise on Lora's lower back and heard her tell hospital personnel that defendant had beaten her. Later he returned to the Donato house and again confronted defendant, telling him he had to stop beating Lora and that they both needed help. We see no abuse of judicial discretion in the admission of this testimony. Mr. Woods' observations as well as his subsequent conversations with defendant possessed sufficient reliability for their admissibility.

Defendant next states that the testimony of Naumoff that she heard Lora on the telephone say she did not want to go inside her house because she feared defendant would hit her did not fall within a hearsay exception. He cites State v. Machado, 111 N.J. 480 (1988), in which the Supreme Court held that a decedent's statements that she was afraid of the defendant were improperly admitted since the decedent's state of mind was not an issue. We agree with defendant that Naumoff's testimony in this regard does not fall within any of the exceptions of the hearsay rule, but we find that the error was harmless in light of all the other testimony and evidence that defendant abused Lora and that she was fearful of him.

Finally, defendant asserts that the trial judge erred in permitting Detective Loertscher's testimony that he heard defendant say on a public telephone, "I didn't do anything to her that I hadn't done before." Defendant claims that the statement should have been excluded both because it was highly prejudicial, lacked context and the officer improperly invaded his privacy. We disagree. Defendant had no reasonable expectation of privacy while conducting a conversation in the open at a public place. See State v. Hempele, 120 N.J. 182, 200 (1990). The statement was probative of the State's contention that defendant beat Lora and caused her death. There was no abuse of discretion in admitting this testimony under N.J.R.E. 803(b)(1) as a statement of a party.

In summary, the statements made by Lora were "excited utterances," spontaneously made in a state of excitement, N.J.R.E. 803(c)(2); present sense impressions of the pain she was experiencing, N.J.R.E. 803(c)(1); statements made for the purpose of diagnosis of treatment, N.J.R.E. 803(c)(4); or statements adopted by defendant through his silence, N.J.R.E. 803(b)(1).

Furthermore, even if some of the statements were erroneously admitted, the error was harmless in light of the voluminous other evidence of defendant's guilt. He was the only adult with Lora from Sunday until her death on Tuesday, and this time period of more than thirty-six hours was consistent with Dr. Hutchins' explanation of the process from the blunt trauma to Lora's duodenum, through contamination of her system from leakage, and to her fatal infection causing death. Furthermore, Celmer's testimony that the night before Lora's death, she was yelling for defendant to stop hitting her while her grandson was telling Celmer that his mother was on the floor and his father was hitting her, taken together with the physical evidence of the clump of Lora's hair, the torn sweatshirt, and the bloody paper towels discarded in the kitchen trash pail, constituted strong evidence of brutal physical assaults sufficient to cause death, in contrast with defendant's testimony that he never struck Lora and was a caring, loving husband.

The remaining arguments made by defendant are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

 

The Passaic County Prosecutor's Office did not appear at oral argument and did not submit a brief until ordered to do so by the Presiding Judge of the Appellate Division.

(continued)

(continued)

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A-5059-02T3

June 14, 2006