STATE OF NEW JERSEY v. JONG MOON CHOE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2859-03T32859-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JONG MOON CHOE,

Defendant-Appellant.

________________________________

 

Argued November 28, 2007 - Decided

Before Judges Wefing, R. B. Coleman, and Lyons.

On appeal from Superior Court of New Jersey,

Law Division, Bergen County, No. I-97-08-1440.

Anthony Cariddi argued the cause for appellant

(Cariddi & Garcia, attorneys; Carol J. Garcia,

on the brief).

Annmarie Cozzi, Assistant Bergen County Prosecutor,

argued the cause for respondent (John L. Molinelli,

Prosecutor, attorney; Ms. Cozzi, of counsel and

on the brief).

PER CURIAM

A one-count indictment charged defendant with the murder of his wife, Tok Sun Pae, N.J.S.A. 2C:11-3(a)(1)(2). Defendant did not appear for his trial and was tried in absentia in February 1999. The jury returned a verdict of guilty. Defendant was not taken into custody until 2003, at which point the trial court sentenced him to life in prison and specified that defendant would have to serve at least thirty years before becoming eligible for parole. Defendant has appealed his conviction and sentence. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Defendant raises the following issues on appeal:

POINT I

MOTION COURT'S FINDING THAT MR. CHOE WAS NOT A SUSPECT OR IN CUSTODY IS INCORRECT AS A MATTER OF LAW AND THEREFORE INVALIDATED ITS RULING THAT THE ALLEGED ADMISSIONS WERE CONSTITUTIONALLY VIABLE AND THEREFORE PERMISSIBLE FOR THE JURY'S CONSIDERATION. FURTHER FINDING THAT MR. CHOE WAS MIRANDIZED PRIOR TO POLYGRAPH IS FACTUALLY INCORRECT AND THEREFORE INVALIDATES RULING

POINT II

ASSUMING ARGUENDO THAT DEFENDANT WAS PROPERLY MIRANDIZED THE TWOFOLD ISSUE REMAINS IN THE APPLICATION OF THE TOTALITY OF THE CIRCUMSTANCES DOCTRINE: FIRST, DID MR. CHOE KNOWINGLY WAIVE HIS RIGHTS AND SECOND, WAS HIS WAIVER OF THE PRIVILEGE AND RESULTING ALLEGED STATEMENTS MADE VOLUNTARILY

POINT III

EXISTENCE OF DEFENSE WOUNDS AND UNSUBSTANTIATED TESTIMONY OF INVESTIGATOR AT MIRANDA HEARING THAT MR. CHOE CONFESSED TO STRANGLING HIS WIFE SEVERELY IMPLICATES UNTRUSTWORTHINESS OF MR. CHOE'S ALLEGED STATEMENTS THAT SHE WAS WORTHLESS AND THAT HE KILLED HER DURING HER SLEEP WHERE MEDICAL TESTIMONY INDICATED BLUNT TRAUMA TO THE HEAD. ALTHOUGH UNSIGNED SKETCH PURPORTEDLY DRAWN BY MR. CHOE WAS NOTHING BUT AN X-MARKS THE SPOT DIAGRAM AND CONTAINS NO INHERENT RELIABILITY THE MOTION COURT CONSIDERED IT TO CONCLUSIVELY DEMONSTRATE EVIDENCE OF THE RELIABILITY OF MR. CHOE'S OTHER STATEMENTS

(A)

No assessment of the credibility of the Senior Homicide Investigator was made by the motion court although he had written down the contents of the unrecorded confession seven (7) days after the fact and had critical details contrary to what the other Homicide Investigator testified to during the Miranda Hearing and therefore Mr. Choe's confession should be suppressed

POINT IV

UNIQUE CIRCUMSTANCES REQUIRED THAT THE MOTION COURT DETERMINE WHETHER OR NOT MR. CHOE INVOKED HIS RIGHT TO AN ATTORNEY WHERE THE INTERROGATION WAS NOT VIDEOTAPED AND A HOMICIDE INVESTIGATOR SPOKE TO HIM CONTINUALLY IN KOREAN AND THEREFORE HAD THE UNQUESTIONED OPPORTUNITY TO DEFLECT ANY REQUESTS FOR COUNSEL

POINT V

A NEW TRIAL IS MANDATED WHERE TRIAL IN ABSENTIA WAS PROHIBITED WHERE MR. CHOE NEVER RECEIVED NOTICE OF POSTPONED TRIAL DATE AND ISSUE OF WAIVER WAS NOT PROPERLY ADDRESSED BY COURT. IT EXEMPLIFIES A MANIFEST INJUSTICE TO BOTH [] MR. CHOE AND OUR SYSTEM OF JURISPRUDENCE (raised below)

POINT VI

ADMISSION OF PREJUDICIAL AND INFLAMMATORY PHOTOGRAPHS WERE NOT RELEVANT (raised below 6T65-10)

POINT VII

PROSECUTOR'S CONCLUDING STATEMENT TO THE JURY THAT THERE WAS "NO EVIDENCE THAT THERE WAS ANY RECKLESSNESS IN THIS CASE BUT THAT IN FACT THERE WAS A KNOWING AND PURPOSEFUL MURDER" ENCAPSULATED THE ENORMITY OF THE CONSTITUTIONAL ERRORS IN THIS MATTER (partially raised below)

(A)

STATEMENT CONSTITUTED AN IMPROPER ENDORSEMENT OF THE CREDIBILITY OF THE ALLEGED CONFESSION AND THE INVESTIGATOR WHO DID NOT TESTIFY AT THE MIRANDA HEARING

(B)

STATEMENT CONSTITUTED A GROSSLY UNFAIR AND INFLAMMATORY COMMENT ON INFORMATION KNOWN BY THE PROSECUTION TO BE INHERENTLY INCORRECT

(C)

STATEMENT WAS NOT RELEVANT AS TO THE MENTAL STATUS OF MR. CHOE FOR PURPOSES OF FIRST DEGREE MURDER (raised below)

POINT VIII

JURY CHARGES READ AS A WHOLE VIOLATED DEFENDANT'S RIGHT TO A FAIR AND IMPARTIAL TRIAL

(A)

TRIAL COURT INTERJECTED ITS BIAS IN THE MIDDLE OF THE HAMPTON CHARGE THUS POISONING THE JURY TO SUCH A DEGREE AS TO INVALIDATE THE JURY'S ABILITY TO INDEPENDENTLY ASSESS THE CREDIBILITY OF THE DEFENSE THAT THE CONFESSION WAS INVOLUNTARY. THE HAMPTON CHARGE WAS RENDERED A VEHICLE TO ASSERT THE PROSECUTION'S THEORY AND THUS BECAME A DIRECTED VERDICT

(B)

TRIAL COURT DIRECTED A VERDICT OF FIRST DEGREE MURDER BY GENERATING AN IMPERMISSIBLE INFERENCE PROHIBITED BY THE CONSTITUTIONAL REQUIREMENT THAT ELEMENTS OF AN OFFENSE MUST BE ESTABLISHED BEYOND A REASONABLE DOUBT. STATE V. BROWN, 80 N.J. 587, 592 (1979) (OBJECTED BELOW)

(1)

Ultimate factual question as to whether [] Mr. Choe had the mens rea necessary was decided by the prosecutor's expert witness thus invading the jury's province

(C)

WHERE PROSECUTION'S MEDICAL EXPERT TESTIFIED THAT THE VICTIM HAD TWO BROKEN FINGERS DESCRIBED AS DEFENSE WOUNDS AND KEY WITNESSES FOR THE PROSECUTION TESTIFIED AS TO MR. CHOE'S ALLEGED JEALOUSY FUELED BY RACIAL BIAS AND THAT MR. CHOE PLEADED WITH HIS WIFE NOT TO DIVORCE HIM IT WAS PLAIN ERROR NOT [TO] INCLUDE A CHARGE OF PASSION PROVOCATION

[POINT] IX

SENTENCE IMPOSED IS TO BE REVIEWED UNDER N.J.S.A. 2C:44-6 FOR IMPROPER APPLICATION OF AGGRAVATING FACTORS NOT FAIRLY SUPPORTED IN THE RECORD

Defendant presents these issues in the following factual context.

I

Defendant and his wife, Tok Sun Pae, had been married for ten years and lived in Little Ferry, in an apartment located above their business, Lakeview Wines and Liquors. On January 16, 1997, defendant went to Little Ferry police headquarters to report that his wife was missing. He spoke with Captain Dennis Hofmann of the Little Ferry police force and told him that he had last seen his wife on January 13 when she left to visit a friend in Pennsylvania. He said that he had called his wife in Pennsylvania on January 14 and learned that she had never arrived. He told Captain Hofmann that he and his wife had gone to dinner on Sunday, January 12, with her brother, Deuk Kil Bae, her sister-in-law and her nephew, staying out until approximately 2:30 a.m. on January 13. Defendant gave Captain Hofmann the phone numbers of several of his wife's friends, a physical description, a photograph, and information about her car.

Captain Hofmann made several phone calls but his initial inquiries did not turn up anything. He also sent out a missing persons alarm through the state teletype system. On January 20, Captain Hofmann called defendant to ask whether he had heard from his wife. Defendant responded he had not; his tone struck Hofmann as if defendant were not particularly concerned about his wife's absence.

Later that day Hofmann visited defendant at the store and asked whether he might look around their apartment to see if he could find anything that might be useful in locating defendant's wife. Defendant willingly executed a consent to search his home and vehicles, but Hofmann did not find anything of assistance.

The following day, January 21, Hofmann went to the Bergen County Prosecutor's Office to seek assistance. Investigator John Palotta and Detective Mark Bendul were assigned to work on the investigation. That same day, Bendul and another officer met with defendant at the Little Ferry police headquarters. Although Detective Bendul is fluent in Korean, the interview was conducted in English, and defendant displayed no difficulty, just as he had displayed no difficulty in his earlier conversations with Captain Hofmann. Defendant signed consent forms permitting the officers to obtain his telephone records and to search his residence and vehicles again.

Defendant told Bendul that he and his wife had been experiencing difficulties in their marriage, that they argued frequently and that she had told him she wanted a divorce. He said that in recent months she had taken trips without telling him where she was going.

At the end of this interview, defendant took Detective Bendul aside and spoke to him in Korean. He said that his wife's first marriage had been to a black man and that he thought his wife favored black men. He also said that his wife's recent trips by herself had made him begin to think that his wife was being unfaithful to him.

On the same day as this interview, Bae, defendant's brother-in-law, gave to the police a suitcase that his sister had left with him the week before she disappeared. The bag contained, among other things, more than four thousand dollars in cash, a checkbook, jewelry and jewelry boxes, a social security card, Korean passports, an expired Virginia driver's license in her name, bank records, medical records, tax records, photographs, and an address book. Bae told police that he had heard defendant in the past say that if he and his wife ever divorced, he would not give her a penny. Bae also said that his sister had been staying with him when she left the suitcase. He said that defendant had arrived and, crying, had pleaded with her to come home and start a new life. Bae also told the police that he had had to prod defendant to file a missing persons report; he said he did not file the report himself because he felt his English was not good enough.

The Little Ferry police and the prosecutor's office worked together over the succeeding days to locate defendant's wife. They spoke with her friends, flagged her credit cards to learn if they were being used, and checked motor vehicle records to learn if her car had been stopped or located. On January 29, they conducted an aerial search of her route to Pennsylvania to see if her car had gone off the road. Their efforts were fruitless.

On January 30, however, Investigator Palotta learned that parking tickets had been issued in New York City to the vehicle driven by defendant's wife. Later that day, the vehicle was recovered in upper Manhattan, near Convent Avenue and 149th Street.

The authorities decided to re-interview defendant and Salvador Gonzalez, who worked for defendant in the liquor store. Defendant had told them previously that Gonzalez would occasionally drive his car or his wife's car. Between 8:00 and 9:00 p.m. that night, Bendul and Investigator Donatello went to the store and asked both men if they would accompany them to the prosecutor's office for an interview. Both agreed to go.

Defendant was interviewed for approximately one to one and one-half hours and told the investigators essentially what he had told them from the outset. Between 9:30 and 10:00 p.m., they asked defendant if he would be willing to take a polygraph examination and he agreed to do so. Bendul testified at the Rule 104 hearing that was conducted to determine whether defendant's statements would be admissible that the request for a polygraph was to eliminate defendant as a potential suspect. After defendant agreed to take the examination, the investigators summoned Gil Breit, the polygraph examiner for the office.

At 11:20 p.m. defendant executed a polygraph consent form that included a waiver of his Miranda rights. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Although the form was written in English, the prosecutor's office utilized Jay Chang, an interpreter employed by the Administrative Office of the Courts, as a Korean translator and he translated the form for defendant's benefit. Both Chang and Breit signed the form as having witnessed defendant's execution of it. The form stated in pertinent part

I have also been advised that I have the right to refuse to submit to the polygraph examination, that I have the right to remain silent, and to refuse to answer any questions, and that anything I say during the polygraph examination can and will be used against me in a court of law; that I have the right to consult an attorney before submitting to the examination, and that if I cannot afford to hire an attorney, one will be appointed to represent me before any questioning or examination; that during the examination I have the right to stop answering questions, request an attorney, or to leave or terminate the examination at any time. I hereby waive these rights. No promises or threats have been made to me and no pressure or coercion of any kind has been used against me to force me to submit to the polygraph examination.

. . . .

I have read the above consent to the taking of a polygraph examination and it has been read aloud to me.

The form also had the following provision, which defendant executed at 1:15 a.m., after the polygraph examination had been concluded.

Having voluntarily submitted myself to this polygraph examination, I reaffirm my agreement as expressed above. During this examination I was well treated. I also certify that there were no threats or harm done to me or any promises made to me before or during the time I have been with any law enforcement agency or officer, either in connection with the examination or the signing of this form.

Breit reported to Bendul and Palotta that the results of the examination showed signs of deception by defendant when he was queried whether he had any knowledge about his wife's whereabouts and whether he had arranged for her to disappear. Breit also told them that defendant had moved during the exam in a manner which Breit had interpreted as a deliberate attempt to affect the results.

Bendul and Palotta then interviewed defendant again. Before doing so, Bendul read to defendant his Miranda rights in Korean. Defendant stated he understood them and would voluntarily waive them. He executed a waiver form, written in Korean, at 1:20 a.m. Defendant told the men essentially what he had told them before, about working in the store until it closed on January 12 and then going out with his brother-in-law, his wife and their child until the morning of January 13. He said he and his wife returned home and that he awoke the next morning and opened the store. He said he saw his wife in the store that afternoon and that she left to go shopping, returning around 4:00 p.m. Around 6:00 p.m. she said she was going to Pennsylvania and left. Bendul and Palotta told defendant that based upon the results of the polygraph exam, they did not believe he was being truthful.

Bendul and Palotta then left to confer with the investigator who had been talking to Gonzalez. Gonzalez insisted the last time he saw defendant's wife at the store was on January 12 when the store closed, but he also said that defendant had tried to convince him he had seen her in the store on January 13.

Bendul and Palotta returned to defendant and confronted him with Gonzalez's statement. Defendant became very nervous and began to say he had difficulty understanding English. At 4:25 a.m. defendant executed additional consent forms, consenting to another search of his residence, and to be photographed and fingerprinted. They continued speaking to defendant, talking of his wife in the past tense and suggesting perhaps whatever had happened to her had been an accident. Shortly before 5:00 a.m. defendant told them what had happened to her had not been an accident.

The two continued to speak to defendant, and at approximately 6:00 a.m. defendant told them that he had killed his wife and dumped her body in Fort Lee. Defendant said he had choked her while she was sleeping, put her body in plastic bags and driven to Fort Lee where he put her near a dumpster behind the Fort Lee post office. He said he killed her because "[s]he was worthless, she should be thrown away." Bendul and Palotta asked him to draw a map showing where he had discarded her body. Defendant drew a diagram and her body was later found where he had indicated. Defendant refused, however, to provide a written statement.

Defendant filed a pre-trial motion to suppress his statements. The trial court conducted an extensive Rule 104 hearing at which the State presented the testimony of Captain Hofmann, Jay Chang, Gil Breit, and Detective Bendul while defendant called Detective Palotta. After considering the testimony and the arguments presented, the trial court ultimately placed an oral decision on the record, setting forth its findings and conclusions in support of its determination that defendant's statements would be admissible at trial. Specifically, the trial court stated in the course of its oral opinion,

My finding is that the confession, and the statements made by the defendant were a product of an essentially free and unconstrained choice by its maker which is Mr. Choe, therefore, I find that he willed to confess it, and it can be used against him.

I do not find, nor can I come to a conclusion that he was so overborne that his capacity for self determination critically was impaired, and the use of his confession would offend due process. I cannot conclude that.

. . . .

No specific conduct of the police had rendered the statement involuntary. There's none here.

II

Defendant's first four arguments on appeal challenge, on various grounds, the trial court's ruling in that regard. We note at the outset that the law is clear that an appellate court, reviewing the ruling of a trial court, should uphold the trial court's factual findings if they are supported by substantial, credible evidence in the record. State v. Locurto, 157 N.J. 463, 470-75 (1999).

The State must prove beyond a reasonable doubt that a defendant made a knowing, intelligent and voluntary waiver of his right against self-incrimination before a defendant's statements made to the police during the course of a custodial interrogation can be admitted at trial. State v. A.G.D., 178 N.J. 56, 67 (2003). As part of this, the State must prove beyond a reasonable doubt not just that defendant was advised of his Miranda rights and waived them but that he made his statement voluntarily, and not as the result of coercion. State v. Cook, 179 N.J. 533, 562-63 (2004).

In considering whether a defendant made his statement voluntarily, a court considers whether the statement was "'the product of an essentially free and unconstrained choice by its maker,' . . . or whether the defendant's 'will has been overborne and his capacity for self-determination critically impaired.'" State v. P.Z., 152 N.J. 86, 113 (1997) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 225-26, 93 S. Ct. 2041, 2047, 36 L. Ed. 2d 854, 862 (1973)). In reaching its determination, a court must look at the totality of the circumstances surrounding the statement. Ibid.

We are satisfied that the record fully supports the rulings of the trial court. We note, for instance, that defendant was read his Miranda rights both prior to the polygraph examination and to his subsequent questioning by Investigators Bendul and Palotta. In addition, prior to the polygraph examination, a Korean translator translated to defendant the form containing a waiver of his Miranda rights to assure that he understood. And, after that examination, when Bendul and Palotta resumed questioning defendant, Bendul advised defendant in Korean of his Miranda rights and asked if he would waive those rights. On each of those occasions, defendant freely and voluntarily waived his rights.

Defendant also complains about the length of the interrogation. Although we cannot deny that the questioning was protracted, such length is not determinative of whether a defendant's statements can be deemed admissible. State v. Morton, 155 N.J. 383, 450-51 (1998) (defendant questioned for nine and one-half hours); State v. Cabrera, 387 N.J. Super. 81, 98-103 (App. Div. 2006) (defendant questioned for eight hours). The record indicates that defendant was supplied at various points with water, with coffee, with soda and with cigarettes. He took bathroom breaks and when, at one point, he asked to telephone his son to arrange for the closing of the store, he was allowed to do so. At no time did defendant ask to stop the proceedings, for food, or for an attorney.

The record also does not support defendant's contentions that his statements were the product of coercion by Bendul and Palotta or that he was seriously ill at the time. The most that can be concluded from the record is that defendant had a slight cold and a cough. That is not a sufficient basis to support a conclusion that he lacked the ability to make a knowing and voluntary choice.

The trial court also correctly rejected defendant's contention that he did not understand and appreciate the Miranda warnings because of language and cultural differences. Defendant communicated freely with the authorities in English from the time of his first contact with the Little Ferry police on January 16. He made no claim of having any difficulty with the English language until Bendul and Palotta confronted him after the polygraph examination. The two were careful, moreover, not to rely upon defendant's apparent comfort speaking English. A Korean translator was used in connection with defendant waiving his Miranda rights before taking the polygraph examination, and Bendul explained defendant's rights to him in Korean before resuming speaking to defendant after the polygraph examination was concluded.

Additionally, there is no reason to hold defendant's statements inadmissible because the interrogation was not taped. The rule that homicide interrogations be electronically recorded was not adopted until 2005 and became effective in January 2006. R. 3:17-1. There is no basis to transport that requirement back in time and apply it retroactively.

Defendant also argues his confession should have been held inadmissible because it is not supported by other physical evidence in the case. We disagree. We do not, for instance, accept defendant's characterization of the map he drew for Bendul and Palotta. The police followed that diagram and found Pae's body in the exact spot defendant had indicated.

We acknowledge that defendant in his statement said he had strangled his wife while she was sleeping while the autopsy report referred to a fractured skull and lacerations to the brain from a beating with a blunt object as the cause of death, not strangulation. In his statement, defendant, in addition to saying he had strangled his wife, told the investigators that he had used an object not typically used as a weapon but he did not identify it further. That statement sufficiently correlates with the report of Pae's autopsy.

Defendant's last two contentions with respect to the admissibility of his confession are that the prosecution did not call Palotta as a witness during the Miranda hearing and that Bendul must have lied when he said defendant waived his rights because it would be absurd to believe he did so. As to the first, there is no requirement that the State present at a Miranda hearing every individual involved in the interrogation process. Further, the trial court had the opportunity to consider Bendul's credibility because defendant called Bendul as a witness during the hearing. As to the second, defendant essentially is asking this court to disregard the credibility determinations of the trial court. As we noted earlier, this we are not free to do. State v. Locurto, supra.

III

Defendant's next argument is that the trial court erred in conducting the trial in his absence. We elect to deal with the merits of defendant's argument and to disregard the fact that defendant did not make a motion for a new trial on that basis prior to sentencing. R. 3:20-2.

Defendant's trial was originally scheduled to commence on October 13, 1998, and he was present in court on that date. His trial, however, had to be adjourned until January 19, 1999, and defendant received notice to appear on that date. He was not, however, given an instruction in accordance with State v. Hudson, 119 N.J. 165, 182 (1990), and was not told what would happen if the trial did not proceed on January 19. In fact, the trial could not start on January 19, but got underway several weeks later, on February 1. Defendant was not present, and the trial proceeded without him.

When defendant filed his original brief in this appeal, he contended that he was present in court on January 19 while the State contended that he was not. It was not immediately apparent from the transcript which position was accurate and we granted the State's motion for a limited remand on the question. The trial judge having retired in the interim, the remand proceedings were conducted by another trial judge, who took testimony from the assistant prosecutor and defense counsel, spoke with the judge who presided over defendant's trial and reviewed the diary notes of that judge. Neither the assistant prosecutor nor defendant's attorney could recall defendant being in the court room on January 19, 1999. The notes of the trial judge refer to a conference in chambers on January 20. The notes state:

Jong M. Choe-AP Donohue Raymond Flood

Conference in Chambers

DFT never appeared

Jong Panel dismissed

BW issued

In addition, the trial judge's notes for January 21 refer to differences developing between defendant and his trial attorney and that defendant wanted a new attorney. The notes continue that defendant's trial attorney had told him to meet him at his office on the afternoon of January 19, that defendant had called to say he would be late, but that he never appeared. According to the remand judge, the trial judge's notes state, "Defendant voluntarily absented self/Adjourned matter for two weeks to 2-1-99."

On the adjourned date, the trial court inquired what efforts had been made to locate defendant and whether they had been successful. The State reported that it had contacted defendant's family members and acquaintances, both in the United States and Korea, his bail bondsman, hospitals, the Korean Consulate, the American passport service to flag his passport and that it had also conducted an NCIC check to see if defendant had been arrested in another state. All of its efforts to locate defendant or obtain some information as to his whereabouts were fruitless. The trial court concluded that defendant had voluntarily absented himself, waiving his right to be present and it proceeded with defendant's trial.

Our review of the record in this matter encompasses the proceedings before January 19. A final pre-trial conference was held on September 10, 1998, at which a trial date of October 13 was set. Defendant, who was then in custody, was present in court. The trial court stated to defendant

Now, Mr. Choe, you and your attorney will not be given any further notice of this trial date. And if for whatever reason you do not appear on that trial date or any subsequently scheduled date after the 13th,

. . . you will lose the bail. A bench warrant will be issued for your arrest. And the trial shall proceed without you. (emphasis added)

Another pre-trial conference was held on October 13. The trial had to be adjourned because of an outstanding discovery issue, and it was rescheduled for January 19, 1999. Defendant, who by that time had posted bail of $500,000, was present on October 13, and after the trial court set the date for January 19, the assistant prosecutor noted that the court had previously given a Hudson charge. The trial court responded in the following manner:

Yeah, it's still in effect. The Hudson charge is still in effect.

Mr. Choe, you're out on bail now. You're a Korean citizen. I don't think we have any extradition treaties with - with Korea. So, if you want to go back to Korea, we're going to try this case without you if you do not show up.

. . . .

No further notice will be provided. If you do not appear on this date for trial or at any other subsequently scheduled date, you will lose any bail, that's $500,000 bail that has been posted, a bench warrant will be issued for your arrest, and a trial will proceed without you. (Emphasis added)

Defendant did not appear on January 19, and he did not check in with his attorney on that day. In our judgment, the record provides ample support for the trial court's conclusion that defendant voluntarily waived his right to be present at his trial.

Defendant refers throughout this portion of his argument to State v. Whaley, 168 N.J. 94 (2001), in which the Supreme Court reversed the conviction of a defendant who had been tried in absentia. We consider Whaley to be distinguishable, however, because the record contained no indication that the defendant in that matter was actually notified of the date his trial was to commence. 168 N.J. at 103. Here, defendant was clearly advised to appear on January 19 and had been advised on several occasions of the consequences that would flow if he did not appear for his trial. In our judgment, the trial court was fully justified in proceeding without defendant being present.

IV

Defendant's next argument on appeal is that the trial court erred in admitting into evidence certain photographs, six of which showed the nature of the injuries the victim suffered and four of which showed the scene when her body was discovered where defendant had left it.

We accord such evidentiary rulings by a trial court deference.

[A] trial court's evidentiary rulings are "entitled to deference absent a showing of an abuse of discretion, i.e., there has been a clear error of judgment." State v. Marrero, 148 N.J. 469, 484, 691 A.2d 293 (1997). Under that standard, an appellate court should not substitute its own judgment for that of the trial court, unless "the trial court's ruling 'was so wide of the mark that a manifest denial of justice resulted.'" Ibid. (quoting State v. Kelly, 97 N.J. 178, 216, 478 A.2d 364 (1984)).

[State v. Brown, 170 N.J. 138, 147 (2000).]

Defendant has failed to demonstrate that the trial court abused its discretion in its rulings on these pictures. It limited the number of pictures that could be used, and would not admit enlargements into evidence.

V

Defendant next argues that the prosecutor's summation, both at the conclusion of the Miranda hearing and at trial, was improper in several respects. Defendant complains on appeal that the prosecutor's argument at the end of the Miranda hearing that Palotta had testified that defendant said he killed his wife and that she was worthless was incorrect because Palotta did not testify at that hearing. The record, however, belies that assertion.

Defendant called Palotta as his witness at the Miranda hearing. On re-cross-examination, the assistant prosecutor posed the following question to Palotta and received the following answer.

Q. Towards the end of the interview, after he ultimately admitted that he killed his wife and told you where she was -- did he tell you why he killed her?

A. He said that [s]he was worthless, she should be thrown away.

Contrary to defendant's assertion, the prosecutor in his argument to the trial court contending that defendant's statements were admissible did not improperly vouch for Palotta's credibility. The trial court made its own findings in that regard.

At trial, the prosecutor concluded his summation with the following comments:

The judge is also going to charge what are called lesser-included offenses -- aggravated manslaughter and reckless manslaughter. Both of these charges deal with a reckless state of mind. I submit to you in this case there is no evidence that there was any recklessness in this case but that in fact there was a knowing and purposeful murder. He told the police that he murdered her, he told them he hit her with an object. We know he hit her in the head at least 12 times, probably more because according to Ms. Sing, some of the blows actually forms one injury, and then he carried her body away and dumped it, and he told the police he did this because she was worthless and the type of woman who deserved to be thrown away. I submit to you its very clear this is murder and nothing else.

Defendant made no objection at trial but now contends that through these remarks, the assistant was in some manner vouching for the credibility of Investigator Palotta. A fair reading does not support this assertion at all.

Finally, from our review of the record, we are satisfied that there was absolutely no evidentiary basis to support submitting to the jury a charge of passion/provocation manslaughter; there is no merit to defendant's argument that the prosecutor committed some form of misconduct in not presenting that theory. State v. Mauricio, 117 N.J. 402 (1990).

VI

Defendant's next argument is that the trial court's charge was erroneous in three respects. He first contends that the portion of the court's charge under State v. Hampton, 61 N.J. 250 (1972), was biased because it set forth only the State's factual contentions. Defendant made no objection to the charge on this basis at the time of trial. We have reviewed the trial with defendant's argument in mind. We perceive no error, let alone plain error. R. 2:10-2.

Defendant next complains of the trial court's charge that the jury could infer an intent to kill or seriously injure the victim from use of a deadly weapon, such as a blunt instrument. Again, defendant did not object below but now contends that such a charge resulted in the trial court directing a verdict of guilty since it permitted an inference of intent and relieved the prosecution of its burden of establishing all the elements of the offense beyond a reasonable doubt.

The trial court, however, did instruct the jury that the State had to establish all the elements of first-degree murder, including defendant's intent. Considering the record as a whole, and the nature of the victim's injuries, which included multiple skull fractures, there was no error in the court's charge.

Defendant's final complaint with respect to the charge is the court's failure to include a charge on passion/provocation manslaughter as a lesser-included offense of murder. As we have noted earlier, the record contains no support for such a charge. State v. Mauricio, supra.

VII

Defendant's final argument is that the trial court made certain unspecified errors in the manner in which it weighed the aggravating and mitigating factors at the time it imposed sentence. We are satisfied that there was no error by the trial court. Defendant's sentence was fully justified by the record. State v. Roth, 95 N.J. 334, 363-64 (1984); R. 2:11-3(e)(2).

 
Defendant's conviction and sentence are affirmed.

(continued)

(continued)

27

A-2859-03T3

April 11, 2008