STATE OF NEW JERSEY v. TINA LUNNEY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TINA LUNNEY,

Defendant-Appellant.

_____________________________________________

April 21, 2016

 

Submitted December 8, 2015 Decided

Before Judges Yannotti, St. John and Vernoia.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 10-01-0190.

Joseph E. Krakora, Public Defender, attorney for appellant (Lauren S. Michaels, Assistant Deputy Public Defender, of counsel and on the briefs).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Andrew R. Burroughs, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

On January 22, 2010, an Essex County grand jury returned a three-count indictment against defendant Tina Lunney, charging her with: first-degree murder of her mother, Marie Zoppi, N.J.S.A. 2C:11-3(a)(1) and (a)(2) (count one); fourth-degree unlawful possession of a weapon (a necktie) under circumstances not manifestly appropriate for its lawful use, N.J.S.A.2C:39-5(d) (count two); and third-degree possession of a weapon (a necktie) for an unlawful purpose, N.J.S.A.2C:39-4(d) (count three).

Before trial, defendant moved to suppress her July 27, 2009 statement to the police. After a three-day hearing and oral argument, the motion judge issued a comprehensive written decision denying the motion.

After a jury trial, defendant was convicted of all charges.

At sentencing, the judge merged the weapons offenses with the murder offense and sentenced defendant to a forty-year term of incarceration with an eighty-five percent parole disqualifier under the No Early Release Act (NERA), and to five years of parole supervision upon release. N.J.S.A.2C:43-7.2.

Defendant contends the judge erred by not suppressing her statement, by admitting evidence concerning pre-trial consideration of an insanity defense, and other issues. Having reviewed defendant's contentions in light of the record and applicable law, we affirm.

I.

The record reveals the following facts and procedural history.

A. Suppression Hearing

According to Detective Robert Prachar of the Homicide Squad, Essex County Prosecutor's Office (prosecutor's office), he initially met defendant on July 23, 2009, at her home in Fairfield, where Zoppi had been found dead that morning. Later that day, defendant and her husband, Christopher Lunney (Christopher),1 gave videotaped statements at police headquarters. Also at headquarters, defendant signed the reverse side of a suicide note left at the scene that was allegedly written by Zoppi. Prachar recalled the note stating, "tell the kids I love them, you don't need me." No suspects were identified at that time.

On July 24, Christopher filed a missing person's report for his wife. Detective Sergeant Louis Cammarata of the Fairfield Police Department (FPD) stated that, just before 5:00 a.m. on July 27, 2009, Deputy Chief Steven Gucken informed him that one of defendant's neighbors had seen her "walking down the street" near her home. Officer Frank Tracy was dispatched and transported defendant to police headquarters.

Shortly thereafter, Detective Charles Zampino of the FPD arrived at headquarters. He and Cammarata drove defendant, who was not handcuffed, to the prosecutor's office between 5:20 a.m. and 5:30 a.m. Defendant asked Cammarata whether he had seen her children, to which he replied that he had not. Upon their arrival at around 6:00 a.m., Lieutenant Michael DeMaio and Prachar directed them to a conference room. According to Prachar, defendant was not a suspect at that time. She was wanted for questioning because she had been reported as a missing person and the autopsy of Zoppi revealed that Zoppi had been murdered. Cammarata had assumed that defendant was brought in for questioning "because of the fact that she was a missing person." Prachar sought to question defendant about the circumstances surrounding her mother's death, specifically whether Zoppi had been "taken, threatened, [or] held against her will."

Defendant sat at a conference table along with Cammarata, DeMaio, Prachar, and Zampino. The room did not contain video recording equipment. Defendant was not handcuffed, nor had she been advised of her Miranda2 rights. Cammarata recalled that Prachar asked defendant whether she wanted food or beverage. Prachar said defendant did not appear drowsy, and both he and Cammarata testified that they did not believe she was under the influence of alcohol or drugs.

Prachar began by asking defendant about her previous whereabouts. According to Cammarata, defendant responded by stating, "[y]ou want me to tell you what happened to my mother." Prachar heard defendant say, "I wanna tell you what happened to my mother." Prachar immediately stopped the questioning. DeMaio left the conference room and entered the nearby media room to prepare for the video-recording of defendant's statement. Prachar left the conference room and returned with a pre-printed Miranda form in which he had completed the top portion.

At 6:10 a.m., while sitting at the conference table in the presence of Cammarata and Zampino, Prachar advised defendant that he was going to ask questions concerning the death of Zoppi and then proceeded to read defendant her Miranda rights. He asked whether she understood her rights and also whether she had any questions. She responded in the affirmative to the first question and in the negative to the second question. Prachar did not ask her to independently read the form. He requested that defendant sign the bottom of the form, and she complied without hesitation. Prachar did not believe it necessary for defendant to initial each of the rights because he had previously interviewed her on July 23, 2009, and learned that she was educated and employed. Prachar was convinced that she had waived her rights knowingly and voluntarily.

Prachar and Zampino then walked defendant approximately thirty feet to the interview room, and she began giving her video statement at 6:16 a.m. At the Miranda hearing, the videotaped statement was played for the motion judge and he was provided with a transcript.

In her forty-four-minute statement, defendant said she awoke on July 22, 2009, around 7:00 a.m. or 7:30 a.m., and got her children ready for summer camp. Zoppi came upstairs from her connected dwelling to defendant's kitchen and made coffee. Just before defendant left for work, Zoppi asked her to apply cream to her neck. While applying the cream, defendant saw a jacket and a necktie near the refrigerator. She proceeded to demonstrate to the police how she "strangled [her] poor mother" in the family room. Defendant also demonstrated, with a piece of paper, how Zoppi struggled and eventually fell to her knees. Defendant dragged Zoppi to her room by her feet and left her in front of the couch. She sat on the couch, caught her breath, took a piece of her mother's stationary, and eventually went back upstairs to her residence after locking Zoppi's door.

At approximately 8:45 a.m., defendant called her supervisor to alert him that she would be late for work. She arrived at work around 10:40 a.m., and at 1:15 p.m., went home for lunch. Before leaving for lunch, she told her co-workers that she needed to check on her mother, who was not feeling well.

The following morning, defendant wrote a note on her mother's stationary, suggesting that her mother committed suicide. Defendant told Christopher and her children that Zoppi was with defendant's brother Joseph Zoppi.3 Later that morning, defendant climbed through one of Zoppi's windows because she did not have a key to her mother's dwelling and placed the note on the couch. She then cried, released the necktie from her mother's neck, and placed a blanket over the body. Next, defendant called her husband and told him to come home from work. When he arrived, she told him that her mother had "passed away." Defendant showed Christopher the note purportedly left by her mother. He called 9-1-1.

On Friday, July 24, 2009, defendant initially planned to walk to a local convenience store to buy cigarettes. Instead, she went to Dunkin' Donuts and Target. She then hitchhiked and took a bus to the Bloomfield Shopping Center and later to Atlantic City, two places that she used to visit with her mother.

With respect to whether the murder was financially motivated, defendant detailed some of her financial issues, including late mortgage payments, credit card debt, bounced checks, and the shutting off of her electricity for failure to pay the bill. She also did not have enough money to pay for an upcoming family vacation. Defendant, however, denied any altercation with Zoppi or that her financial issues motivated the murder of her mother.

During the final few minutes of her statement, Prachar questioned defendant about whether she previously had an extra-marital affair. She asked Prachar whether her husband knew about the affair, how he became aware of it, and the reason for the question. Defendant also inquired whether "this is between us?" She acknowledged that she had slept with a police officer "[t]wice a year."

Towards the end of her statement, Prachar asked defendant whether she wanted another cup of coffee, to which she responded affirmatively. She then asked whether she could go home. Just before Prachar and Zampino left the interview room, defendant asked whether "what [she had] just said to [Prachar], will that stay in this room?"

After her statement, defendant was arrested. An inventory of her purse revealed prescription bottles and "goodbye" notes to her children and husband. She was not tested for drugs at that time. Prachar wrote a letter to the Essex County jail, which stated

This is with regard to our conversation about inmate Tina Lunney. Ms. Lunney made no mention of being suicidal, nor did her behavior show any signs by [sic] wanting to harm herself. Discovered on her person were letters to family members where it appears she is saying goodbye. There is no mention of suicide in the letters, but I feel that she should be monitored. If you have any questions contact me[.] . . . Thank you for your attention to this matter.

Prachar said the letter was written as a precautionary measure, explaining that defendant did not exhibit any signs of suicidal ideation.

Dr. Robert Latimer, a forensic psychiatrist, testified for defendant. Latimer examined defendant at the Essex County jail on March 16, 2010, and May 13, 2011, for a total of six hours, and prepared a report dated June 23, 2011. During the first interview, defendant was "incoherent" and "severely burdened with memory lapses." Latimer did not diagnose her at that time, although he believed "she had been overwhelmed" and "had multiple symptoms of mental disease."

During Latimer's second interview, he found defendant in a "manic" state, "laughing constantly and inadequately[] in a manner that was not consistent with her legal situation." Defendant told him she felt embarrassed about her adulterous relationship with a police officer, sad about her mother's death, and stressed about her financial difficulties. Latimer diagnosed her as psychotic and found her to be in an "abnormal affective state."

Latimer believed defendant was in a state of "dissociative fugue" on July 27, 2009, meaning that her "personality ha[d] dissociated itself from reality[] in order to avoid unpleasant affective states." He supported that conclusion by referencing her trip to Atlantic City, which was taken "without any good reason." He detailed comments that defendant made during her July 27, 2009 statement which evidenced her detachment from reality, such as, "I didn't know"; "I couldn't believe it"; "I guess I did it. I guess, but I don't know"; "Yes, I did. I strangled my mother yes, but but I don't remember. And I'm not sure, it must have been somebody else"; "Well, then can I go home now"; and "Will it stay here."

In further support of his opinion, Latimer referred to defendant's jail records, which showed that she appeared "disoriented" upon her arrest and was prescribed Risperdal, an antipsychotic medication, for several months thereafter. Also according to Latimer, the jail records revealed that defendant remained in a state of "dissociative fugue" for a significant period of time and she stated at some point, "they're going to take me off the books." Latimer concluded that defendant's disconnect from reality adversely affected her ability to understand the Miranda warnings, which resulted in her unknowingly and involuntarily waiving her rights.

On cross-examination, Latimer acknowledged that a November 28, 2009 jail note suggested that defendant's mental stability had improved, as she had stopped taking Risperdal and "was hoarding" it. Latimer explained that "people who have the dissociative fugues . . . come back slowly back to normal." Latimer also confirmed the contents of defendant's August 17, 2010 jail record, which stated, "she seems resistant to accepting a possible plea agreement arranged by her current attorney. It seems the inmate believes she can beat her case with the insanity plea, despite her mental stability at this time."

Dr. Azariah Eshkenazi, a forensic psychiatrist, testified for the State. Eshkenazi conducted an approximately hour-long interview of defendant on September 15, 2011, and prepared a report dated September 20, 2011. During the interview, defendant denied taking any medication and explained that Latimer had misdiagnosed her as psychotic and manic when, in fact, she had just been eager to talk to someone. Defendant also acknowledged receiving and understanding her Miranda rights and signing the Miranda waiver, despite being very tired and hungry at the time.

Eshkenazi reviewed defendant's July 27, 2009 videotaped confession and determined that her statements were logical, relevant, and responsive. He also found she had never been hospitalized or treated for mental illness and had been consistently employed until the day of her arrest. He believed that there was no evidence to suggest defendant had ever suffered from a mental disorder. He concluded she had waived her Miranda rights knowingly, intelligently, and voluntarily.

On cross-examination, Eshkenazi acknowledged that defendant's jail records reflected she had been prescribed a low dosage of Risperdal to alleviate the symptoms associated with adjustment disorder with anxiety and depression.

In a comprehensive written opinion dated July 10, 2012, Judge Moore denied defendant's motion to suppress the statements she made to the police on July 27, 2009, concluding that her purported mental illness of a "dissociative fugue" did "not render her waiver or statement involuntary." He also found Eshkenazi's testimony credible, "particularly in light of defendant's own statement to him that she knew she received the Miranda rights, understood them, and knew she signed the Miranda waiver."

The motion judge rejected defendant's argument that her statement at the end of the interview, "Oh, then can I go home?" indicated she did not understand her Miranda rights. Instead, the judge noted the statement suggested she "may not have been aware she was not going to be free to leave at that point," in light of her lack of previous experience with law enforcement, and since she was permitted to go home after her prior statement was taken on July 23, 2009. The judge further concluded that defendant's other comment, "What I just said to you, will that stay in this room?" was "made at the end of the final three minutes of her statement when she was questioned about an affair she was having." The motion judge determined it meant that "she did not want to expose her infidelity; not that she failed to understand the Miranda warnings."

The motion judge also considered the totality of circumstances, finding

[T]he Court has considered that defendant was a 42-year-old educated and employed woman with no previous encounters with law enforcement. She was seated at a conference table in a conference room and then at a desk across from two detectives in an interview room at the [prosecutor's office]. The interview took place early in the morning somewhere between 5:45 and 6:59AM and while the Court was not presented with evidence as to the exact length of defendant's prior detention, the officers testified that they were first notified defendant was found in Fairfield at approximately 4:45AM, defendant arrived at [the prosecutor's office] between 5:45 and 5:55AM, the Miranda waiver form indicated 6:10AM, and the statement began recording at 6:16AM. Defendant was not handcuffed, and although she indicated she was tired and hungry, she was offered something to eat and was given coffee to drink. Defendant was informed of her constitutional rights and signed a Miranda waiver form. The post-Miranda interview was audio and video recorded. Throughout the 46-minute interview which took place less than 6 minutes after the Miranda warnings defendant's statements were logical, relevant, and she thoughtfully and appropriately answered the questions asked. Defendant sat forward in her chair with her arms in front of her on the table, and at one point even reenacted a scene.

Additionally, Det. Prachar a law enforcement officer for over 18 years testified that defendant signed the Miranda waiver form voluntarily and that she was not forced, threatened, or promised anything to sign. Both he and Sgt. Cammarata a law enforcement officer for over 25 years stated that they did not believe defendant was under the effect of narcotics or alcohol and believed the information was provided knowingly, freely, and willingly. On this point, defendant argues that Det. Prachar's letter to the Essex County jail suggesting she be monitored discredits his testimony as to her voluntary waiver. However, it was not until after defendant confessed and was subsequently arrested that an inventory of her pocketbook revealed two prescription bottles and a "goodbye" note to her family. Det. Prachar testified that despite defendant showing no signs of suicide, and the note not explicitly mentioning suicide, he notified the jail as an extra precaution.

B. Trial Testimony

Defendant's family lived in a bi-level home along with Zoppi. Zoppi's unit had a separate entrance door, and only she possessed a key. Both defendant's husband and brother stated that defendant and Zoppi had a good relationship. Defendant was in charge of her family finances. In the spring of 2007, Christopher received an inheritance of $37,000 from his father and, unbeknownst to him, defendant spent all of it. In February 2009, a representative from her mortgage lender sent defendant her first notice of foreclosure, and three more were subsequently sent.

In June, defendant wrote two checks from a TD Bank joint checking account, both in the amount of $289.59, which were returned for insufficient funds. TD Bank referred the account for collection to a law firm. Between June 29 and July 1, 2009, the electricity to defendant's home was shut off for non-payment. Public Service Electric and Gas (PSE&G) received several checks prior to the shut off, which were returned for insufficient funds. Although defendant told Christopher that PSE&G had restored power, a neighbor admitted to Christopher that he had illegally done it.

The Lunneys and four other families planned to rent a summer vacation home. Each family was required to pay approximately $3,000. Defendant successfully paid the first deposit in March 2009, after two prior checks were returned for insufficient funds. On July 21, a representative from the rental agency informed defendant that her check for the remainder of the deposit was returned for insufficient funds.

On July 22, 2009, sometime between 8:30 a.m. and 9:00 a.m., defendant called her supervisor, and told him that she would be late for work. Christopher subsequently received a telephone call from defendant, stating that "her boss . . . [had given] her a big time attitude because she was going to be late for work."

A regional investigator for Chase credit card company (Chase), testified that, on July 22, 2009, payments from Zoppi's Visa card were processed to the rental agency at 9:48 a.m. and to PSE&G at 10:16 a.m. Defendant made the PSE&G payment over the telephone with Zoppi's credit card.4

Between 10:26 a.m. and 11:18 a.m., defendant exchanged text messages with a co-worker in which defendant wrote that Zoppi was not feeling well and was acting "depressed." Upon defendant's arrival at work sometime after 11:18 a.m., she mentioned to her supervisor that her mother "wasn't feeling well." However, she told her co-worker that Zoppi was feeling better and watching television. The co-worker also recalled defendant informing her that she was going home for lunch to check on Zoppi. Before leaving, defendant, at 12:43 p.m., made an online payment to the law firm handling the collection matter from her work computer using Zoppi's Visa credit card, which satisfied her outstanding debt.

Christopher testified that he came home for lunch on July 22, 2009, and Zoppi was not there, which was atypical. That evening, the family arrived home and changed clothes to attend a wake. Christopher wondered where Zoppi was, as he had not seen her that day. Defendant told him that Joseph had taken her out.

On July 23, 2009, at approximately 9:00 a.m., defendant "hysterical[ly]" called Christopher, stating, "there's something wrong with my mother. You have to come home." Christopher met defendant in the laundry room, where she told him that Zoppi had killed herself. Defendant handed him a suicide note, purportedly written by Zoppi. Christopher looked into Zoppi's bedroom from a window and saw her body lying on the floor. He asked defendant whether she had called 9-1-1, to which she replied "[n]o." He immediately called 9-1-1.

At 9:20 a.m., Officer Christopher Nicholas of the FPD, responded to the scene. He saw the victim lying face down on the floor in a pool of blood, partially covered with a blanket, with a necktie around her neck. He felt no pulse and notified the sergeant that he believed the scene was "suspicious" due to "the necktie around her neck and the large amount of blood coming from her facial area."

Nicholas briefly questioned defendant at home about her mother's previous whereabouts. According to Nicholas, defendant said she spoke with Zoppi at around 10:30 a.m. on July 22 before leaving for work. During that conversation, Zoppi told defendant that she was going out with Joseph for the day. Zoppi also told defendant, "[y]ou don't need me." That night, defendant went to check on her mother after the wake, but it was dark in her mother's dwelling and her door was locked, and defendant assumed she was sleeping. The next morning, defendant called Zoppi's landline phone, but received no answer. Defendant grew increasingly concerned, so she looked through a window and saw her mother on the floor. Defendant proceeded to crawl through the window and covered Zoppi with a blanket because she "looked cold."

Later that day, Christopher, defendant, and Joseph gave statements at FPD headquarters. While there, Christopher gave Zoppi's alleged suicide note to Prachar. During Joseph's statement, he was shown the note. He thought it "unfathomable" that his mother committed suicide because she "was extremely religious." When asked whether the handwriting matched Zoppi's, Joseph said, "[o]h, maybe, she scribbled stuff." At trial, Joseph doubted that his mother had authored the note.

Also on July 23, defendant gave two videotaped statements to Prachar and Zampino, beginning at 12:41 p.m. and 1:42 p.m. These statements were played for the jury. During the first videotaped statement, defendant recalled no animosity or hostility between herself and Zoppi, except that Zoppi was "annoyed" that, at the last minute, defendant changed the day to visit Zoppi's mother. While getting ready to leave for the visit on July 21, Zoppi said, "oh, don't worry. I won't ask you again" and "[Y]ou don't even need me." Defendant said she last saw her mother alive on July 22, 2009, at 10:20 a.m.

At lunchtime that day, she went home, but did not see Zoppi. Defendant presumed that Joseph had taken Zoppi out for the day, as Zoppi had communicated that plan to defendant before she left for work. She confirmed that her family went to a wake that evening and that she believed Zoppi was still with Joseph because her door was locked.

Consistent with her initial statement to Nicholas, defendant said she knocked on Zoppi's door the next morning and called her mother's phone, but no one answered. After taking the children to summer camp, defendant looked into Zoppi's window, saw "liquid," and climbed through the window.

Defendant told the detectives that she found her mother on the ground and "thought she maybe fell off the couch" and "hit her head." She placed a blanket on her because she was cold to the touch. Defendant then called her husband. Before he arrived, defendant claimed to find a note on Zoppi's couch. She met Christopher and gave him the note. He called 9-1-1.

In her second videotaped statement, defendant recalled seeing a necktie, which belonged to Christopher, around Zoppi's neck when defendant initially found her mother. While defendant tried to loosen the tie, she began crying. Defendant moved Zoppi's body because she thought she could help her, but then realized that she was cold to the touch.

Defendant additionally recalled that her electricity had been shut off for a few days for non-payment; the bill had been paid sometime during the week of Zoppi's death. She also mentioned that Zoppi had recently paid for a new water heater. At the end of the second statement, defendant asked, "can I go home?" Prachar informed her that she could, after he talked to Christopher.

Christopher testified that after he and defendant gave statements, they went to the home of his sister, Lisa Pravata, and slept there that night. At 5:30 a.m. on July 24, defendant told Christopher that she was going to walk about a mile-and-a-half to a local convenience store, but she never returned. Christopher filed a missing person's report. The jury was shown video surveillance footage of defendant at the Bloomfield Library and at an Atlantic City casino taken during the time she was reported as missing.

Before 5:00 a.m. on July 27, a neighbor saw defendant walking near her home. An officer transported defendant to police headquarters.

Regarding what occurred at police headquarters and the prosecutor's office, Cammarata and Prachar testified substantially as they had at the Miranda hearing. The jury also viewed the video recording of defendant's July 27, 2009, confession. Concerning what Prachar found in defendant's purse upon her arrest, he described the contents of the "goodbye" notes defendant wrote to Christopher, their children, Christopher's sister and her husband, George Pravata, and Joseph. In defendant's note to Joseph, she wrote, "I'll watch over you. Please give Chris my share of mom's money[.]"

No fingerprint evidence linked defendant to the crime, and no DNA evidence was recovered from the victim.

On July 24, 2009, Dr. Eddy Lilavois, an expert in forensic pathology, performed the autopsy, and at trial he opined the cause of death was strangulation. He estimated that Zoppi died sometime between noon on July 22, and the time at which she was found by defendant on July 23.

Latimer was called as a defense expert witness. He testified substantially as he had at the Miranda hearing about his interviews of defendant, adding that his diagnosis after the second interview was "bipolar I disorder, with psychosis." Latimer additionally acknowledged several of defendant's jail records, which documented her mental state between July and November 2009. In particular, the jail record dated July 30, 2009 noted, "[p]atient remains very disconnected and disjointed of thought[.] [N]ot clearly psychotic, but her reality testing and judgment into her situation is none."

On cross-examination, Latimer testified about a June 7, 2010 competency report on defendant, which was prepared by Dr. Peter D. Paul, a licensed psychologist at the Ann Klein Forensic Center. Latimer had reviewed Paul's report as part of his evaluation of defendant, and acknowledged Paul's finding: "When discussing [defendant's] legal case, she said she and her attorney were planning on using the McNaughton (insanity) defense. Overall she did not display any deficits in her cognitive functioning."

In rebuttal, the State called Eshkenazi who testified substantially as he had at the Miranda hearing. While explaining his belief that defendant exhibited no symptoms of psychosis, Eshkenazi stated, "[u]sually psychosis starts at [a] much earlier age than the age of 40."

While defendant was in jail, Christopher5 received a handwritten letter from her. The letter discussed defensive strategy, and mentioned a number of mutual acquaintances, not relevant on appeal

Chris, whenever you can come, again I put Lisa on the list so you don't have to come by yourself. Chris, Greg's sister is pychiatric [sic] nurse he's going to ask her. And if you ask your psychrtist [sic] & research even a soft covered book. I gave Greg questions also.

I took some pills & wrote good bye letters because when I realized what I did, I wanted to kill myself. Everything else is a blurr [sic]. I don't know what's true. Vinnie just wants to know what state of mind I was in worried about bills, felt bad lieing [sic] to you it was a lot of pressure & I snapped, god forbid it was one of the kids.

Greg said it was like an outer body experience yes. But is that temporary, temp insanity, diminished capacity, pychlogy [sic] can that happen? That's what did happen.

But if there's a better reasoning, tell me. I flipped & didn't realize I did it. Believed my lie. Can that happen? What state of mind is emotional stress, no sleep the night before? Did it, panicked, then covered it up.

Don't tell the doctor why figure out something. Phil from Hollywood was asking for me how did he know I know Greg?

I confess everything to police. When I was riding the buses, my mother was with me. I hadn't eaten I heard voices Vicky, when I got here I heard voices & didn't remember.

Please help. Love T.T. Over.

Printed on the reverse side of the letter was an excerpt of our decision in State v. Serrano, 213 N.J. Super. 419, 423-24 (App. Div. 1986), certif. denied, 107 N.J. 102 (1987), which discussed the admissibility of evidence of diminished capacity. At the bottom of the page, defendant wrote, "how do they evaluate you on a pyslogical [sic] exam give to Greg for Sunday."

On appeal, defendant presents the following issues for our consideration

POINT I

THE TRIAL COURT MISAPPLIED RULE 3:17 AND FAILED TO CONSIDER THE TOTALITY OF THE CIRCUMSTANCES, PARTICULARLY TINA'S MENTAL ILLNESS, IN DENYING THE SUPPRESSION MOTION.

A. The Police Failed To Electronically Record The Interrogation, And The State Did Not Prove Procedural Compliance with Miranda.

B. Tina's Waiver of Her Miranda Rights Was Not Knowing And Intelligent, Taking Her Mental Illness Into Account.

POINT II

THE ADMISSION OF IRRELEVANT, YET HIGHLY PREJUDICIAL EVIDENCE THAT TINA HAD CONSIDERED AN INSANITY OR DIMINISHED CAPACITY DEFENSE DENIED HER DUE PROCESS OF LAW AND A FAIR TRIAL, PARTICULARLY BECAUSE SHE DID NOT OFFER SUCH A DEFENSE AT TRIAL.

A. The Competency Report Was Inadmissible Under The Fifth, Sixth, and Fourteenth Amendments, and New Jersey Law.

B. Dr. Paul's Hearsay Statement, Tina's Letter, and The Jail Record Indicating That Tina Believed She Could "Beat Her Case With The Insanity Plea" Were Inadmissible Under N.J.R.E. 403.

POINT III

REVERSAL IS REQUIRED BECAUSE THE PROSECUTOR REPEATEDLY ARGUED THAT TINA'S CONSIDERATION OF AN INSANITY DEFENSE YEARS AFTER HER MOTHER'S DEATH SHOWED THAT SHE KILLED HER AND WAS MANIPULATIVE AND MALINGERING; REPEATEDLY EXPRESSED MOCKING DISBELIEF OF PHSYCHIATRIC TESTIMONY REGARDING TINA'S MENTAL STATE AT THE TIME OF THE "CONFESSION"; AND DISTORTED KEY EVIDENCE. (Not Raised Below).

POINT IV

THE ERRORS CUMULATIVELY DENIED TINA A FAIR TRIAL.

In her pro se supplemental brief, defendant presents the following issues for our consideration

POINT I

TRIAL COURT ERRONEOUSLY DENIED TINA'S MOTION TO SUPPRESS HER CONFESSION BY MISAPPLYING RULE 3:17, AND BY DECLINING TO CONSIDER THE TOTALITY OF THE CIRCUMSTANCES, IN PARTICULAR TINA [sic] MENTAL ILLNESS, IN DETERMINING IT VOLUNTARINESS.

POINT II

THE ADMISSION OF IRRELEVANT, YET HIGHLY PREJUDICIAL EVIDENCE THAT TINA HAS CONSIDERED AN INSANITY OR DIMINISHED CAPACITY DEFENSE DENIED HER DUE PROCESS OR [sic] LAW AND A FAIR TRIAL, PARTICULARLY BECAUSE SHE DID NOT OFFER SUCH A DEFENSE AT TRIAL.

POINT III

IF THIS COURT FINDS THAT THE RECORD DOES NOT PROVIDE AN ADEQUATE BASIS FOR THIS CLAIM ON DIRECT APPEAL. [sic] DEFENDANT RESPECTFULLY RESERVES THE RIGHT TO RAISE THIS ISSUE IN A SUBSEQUENT PETITION FOR POST-CONVICTION RELIEF.

II.

We turn to defendant's contention that the trial court erred by denying her motion to suppress her statements to the investigators. When reviewing the admission of defendant's custodial interrogation, we "must defer to the factual findings of the trial court so long as those findings are supported by sufficient evidence in the record" where, as here, that court has made its findings based on the testimonial and documentary evidence presented at an evidentiary hearing. State v. Hubbard, 222 N.J. 249, 262 (2015). Additionally, "[a]ppellate courts should defer to trial courts' credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." State v. Locurto, 157 N.J.463, 474 (1999). Our review of the motion judge's legal conclusions, however, is de novo. State v. Vargas, 213 N.J. 301, 327 (2013); State v. Gandhi, 201 N.J. 161, 176 (2010).

"[A] confession or incriminating statement obtained during a custodial interrogation may not be admitted in evidence unless a defendant has been advised of his or her constitutional rights." Hubbard, supra, 222 N.J. at 265. Those rights, however, may be waived so long as the waiver is "voluntary, knowing and intelligent." State v. Hreha, 217 N.J. 368, 382 (2014).

To determine whether a statement was made voluntarily, a court must assess the totality of the circumstances surrounding the giving of the statement. State v. Roach, 146 N.J. 208, 227, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996). "Relevant factors include the defendant's age, education, intelligence, advice concerning his [or her] constitutional rights, length of detention, and the nature of the questioning specifically, whether the questioning was repeated and prolonged and whether it involved physical punishment or mental exhaustion." State v. Bey, 112 N.J. 123, 135 (1988).

First, defendant contends that the motion judge's failure to consider the lack of recordation of the Miranda warnings and waiver constituted reversible error because it violated Rule 3:17(d), which states that "[t]he failure to electronically record a defendant's custodial interrogation in a place of detention shall be a factor for consideration by the trial court in determining the admissibility of a statement." The motion judge's written opinion belies that contention. Specifically, in his recitation of the facts, the motion judge noted that the Miranda warnings "process was not audio or video recorded." Moreover, the motion judge considered, in his analysis of the totality of the circumstances, that the statement began recording after defendant received her Miranda warnings. Thus, the record makes clear that the motion judge considered the lack of recordation of the Miranda warnings and waiver as a factor in analyzing whether defendant understood and waived her rights knowingly, voluntarily, and intelligently.

As the motion judge properly concluded, the failure to record a custodial interrogation alone does not automatically require suppression of a defendant's statement. See State v. Cook, 179 N.J. 533, 559-60 (2004). Instead, it constitutes "a factor for consideration . . . in determining the admissibility of a statement," which factor the motion judge properly considered here. R. 3:17(d).

Next, defendant argues that the motion judge improperly focused on whether the police "had acted in an overtly coercive manner, rather than on Tina's capacity to waive her rights at the time." In support of that position, defendant cites State v. Flower, 224 N.J. Super. 208, 214-15 (Law Div. 1987), aff'd o.b., 224 N.J. Super. 90 (App. Div. 1988). However, the circumstances in Flower do not exist here.

In Flower, the court suppressed the confession of a cognitively disabled defendant, with a mental age equivalent to a six- to twelve-year-old child, who lacked "the mental capacity to understand an abstract right as is contained in the Miranda warnings." Id. at 212. The defendant in this case is neither cognitively nor incapable of abstract comprehension; she therefore stands in a wholly different position from the defendant in Flower.

The motion judge credited Eshkenazi's testimony that there was no evidence to suggest defendant had ever suffered from a mental disorder, and she had waived her Miranda rights knowingly, intelligently, and voluntarily. Further, the judge noted the "defendant's statements were logical, relevant, and she thoughtfully and appropriately answered the questions asked." Defendant also argues that the motion judge erred by crediting Eshkenazi's testimony over Latimer's testimony. A judge's credibility determinations, however, are entitled to deference. Locurto, supra, 157 N.J. at 474. Moreover, the record amply supports the motion judge's findings.

Defendant additionally argues that the police employed improper interrogation techniques, which rendered her statement involuntary. Those circumstances, she claims, "could be sufficiently coercive to render her statement involuntary" given that she was "suffering from mental illness." The record does not indicate that the police employed coercive or improper tactics. Defendant has not adduced credible evidence of specific police conduct rendering her statement involuntary.

Next, defendant contends in her pro se supplemental brief that she never acknowledged nor understood her Miranda warnings because she did not verbally indicate or physically

gesture that she understood them. However, her contention is belied by the fact that she signed the Miranda waiver form after it was read to her in its entirety.

III.

We next consider defendant's contention that the judge erred in admitting her pre-trial consideration of an "insanity defense." During direct examination, Latimer stated that he had reviewed many materials in preparation of his report on defendant, including Paul's June 7, 2010, competency report. Latimer explained that Paul was a psychologist at the Ann Klein Forensic Center, "which is . . . a state institution where people who have mental problems are referred for further evaluation and disposition."

Although N.J.R.E. 703 permits a hearsay statement, such as a medical report by a non-testifying expert, to be referred to by a testifying expert for the purpose of apprising the jury of the basis for his opinion, it does not allow expert testimony to serve as "a vehicle for the 'wholesale [introduction] of otherwise inadmissible evidence.'" State v. Vandeweaghe, 351 N.J. Super. 467, 480-81 (App. Div. 2002) (alteration in original) (citation omitted), aff'd, 177 N.J. 229 (2003). The rule must be "anchored to the reason for its existence," Krohn v. N.J. Full Ins. Underwriters Ass'n, 316 N.J. Super. 477, 486 (App. Div. 1998), certif. denied, 158 N.J. 74 (1999), and interpreted accordingly. When the purpose of the rule is taken into consideration, the only fair interpretation is that it was not intended as a conduit through which the jury may be provided the results of contested out-of-court expert reports.

On cross-examination, the prosecutor showed Paul's report to Latimer and asked if he had relied on Paul's conclusion that defendant was competent to stand trial. In response, Latimer stated, "[n]o. I never relied on Dr. Paul." Just as the prosecutor was about to read a portion of the report to have Latimer verify it, defense counsel objected, stating that Paul had told defendant that the report "was for competency only and that nothing she said to him could be used in a court proceeding." The prosecutor argued that defense counsel had "used" the report in his case-in-chief when Latimer "defined what Ann Klein was, even defined who Dr. Peter Paul was, where he was employed, what it was all about." The judge permitted the cross-examination, essentially agreeing with the prosecutor that defense counsel had "opened the door" to the evidence on Latimer's direct examination.

On cross-examination, Latimer acknowledged that Paul's report stated, "[w]hen discussing [defendant's] legal case, she said she and her attorney were planning on using the McNaughton (insanity) defense. Overall she did not display any deficits in her cognitive functioning."

"The doctrine of opening the door allows a party to elicit otherwise inadmissible evidence when the opposing party has made unfair prejudicial use of related evidence." State v. James, 144 N.J. 538, 554 (1996). The doctrine "operates to prevent a defendant from successfully excluding from the prosecution's case-in-chief inadmissible evidence and then selectively introducing pieces of this evidence for the defendant's own advantage, without allowing the prosecution to place the evidence in its proper context." Ibid. Evidence is still subject to exclusion, however, where a court finds that the probative value of the otherwise inadmissible responsive evidence is substantially outweighed by the risk of undue prejudice, confusion of issues, or misleading the jury. Ibid.

A judge's discretionary rulings on the admissibility of evidence should not be disturbed absent a mistaken exercise of discretion. State v. Fortin, 189 N.J. 579, 597 (2007). Error in the admission of evidence is not harmful if the defendant's fundamental rights were not impaired and the cumulative evidence against the defendant enjoys great weight. State v. Soto, 340 N.J. Super. 47, 65 (App. Div.), certif. denied, 170 N.J. 209 (2001).

We are satisfied that the court acted within its discretion. In any event, even if in error, the error was harmless, Rule 2:10-2, because there was no reasonable possibility that the evidence concerning defendant's consideration of an insanity defense "might have contributed to the conviction." State v. Macon, 57 N.J. 325, 338-39 (1971). The testimony about Paul's report was a small portion of Latimer's cross-examination and the prosecutor did not refer to the report in her summation. Cf. State v. Spencer, 319 N.J. Super. 284, 299 (App. Div. 1999) (reversible error where prosecutor elicited inadmissible hearsay testimony from an expert witness, who did not testify and was not subjected to cross-examination, and improperly used that testimony in his summation). In addition, there was significant, admissible incriminating evidence that led the jury to convict defendant, including her credible videotaped confession, her use of Zoppi's credit cards after Zoppi's death to satisfy defendant's outstanding debts, and her flight after the crime.

IV.

Defendant argues that Latimer's testimony about Paul's report, her letter to Christopher, and an August 17, 2010, jail record, all of which concerned her pre-trial consideration of an insanity or diminished capacity defense, was inadmissible under N.J.R.E. 403. She further contends that the trial judge's improper admission of the evidence constituted reversible error. We disagree.

Christopher stated on direct examination that defendant sent him a letter from jail. Defense counsel objected to admission of the letter, stating that it was not properly authenticated and that he was unaware of when it was written and, thus, the condition of defendant's mental state at that time and whether she had received advice from private counsel. Defense counsel also expressed concern about the reverse side of the letter with typewritten legal information about the insanity defense, stating that the information "could have been typed by anybody." The judge overruled the objection, stating that Christopher had authenticated the letter and that defense counsel's concerns could be addressed on cross-examination. Christopher then read the contents of the letter into the record.

Defendant did not argue below that the letter was inadmissible under N.J.R.E. 403, nor did she assert that her statements in the letter concerning her post-crime, pre-trial consideration of an insanity defense unduly prejudiced her right to a fair trial. Moreover, she did not argue that N.J.R.E. 403 should have precluded Christopher's testimony about Paul's report. N.J.R.E. 403 provides that "relevant evidence may be excluded if its probative value is substantially outweighed by the risk of . . . undue prejudice[.]" N.J.R.E. 401 defines relevance as "having a tendency in reason to prove or disprove any fact of consequence to the determination of the action."

Here, the letter was clearly probative. Her statements regarding her post-crime thoughts of committing suicide and feeling remorseful for what she had done demonstrated consciousness of guilt. See State v. Mann, 132 N.J. 410, 421 (1993) ("[A]ttempted suicide has been regarded as evidence of a consciousness of guilt."); State v. Pindale, 249 N.J. Super. 266, 283 (App. Div. 1991) ("Unusual exhibitions of remorse for the victims of a crime may in some circumstances be probative of a party's guilty conscience."). Also in the letter, defendant said she had confessed everything to the police, which suggested she had not given a false confession. The letter included defendant's internal debate about whether she experienced temporary insanity or diminished capacity at the time she killed her mother, which was also probative to the central issue in the case of whether she actually had committed the murder. We, therefore, conclude the admission of the letter was not in error.

Defendant further challenges the judge's allowance of Latimer's cross-examination testimony about the August 17, 2010, jail record, which stated, "It seems the inmate believes she can beat her case with an insanity plea despite her mental stability at this time." Defense counsel objected to admission of the record, arguing that its reference to plea negotiations unduly prejudiced defendant. The judge overruled the objection, stating that the record was not "overly prejudicial in light of the direct examination" on defendant's other jail records. On cross-examination, Latimer verified the contents of the August 17, 2010, record.

The jail record was probative of defendant's state of mind, as it suggested she had committed the crime. Even so, as with the other evidentiary references to defendant's pre-trial consideration of a mental illness defense, the testimony on the jail record did not have the capacity to lead the jury "to a result itotherwise might not have reached." Macon, supra, 57 N.J.at 336.

V.

Defendant contends that several comments in the prosecutor's summation constituted prosecutorial misconduct depriving her of a fair trial. As long as the comments are reasonably related to the scope of the evidence, prosecutors are expected to make a vigorous and forceful closing argument to the jury. State v. Frost, 158 N.J. 76, 82 (1999). We must consider a prosecutor's summation as a whole and not simply focus on isolated remarks. State v. Atwater, 400 N.J. Super. 319, 335 (App. Div. 2008).

Where, as here, no objections were made to the comments of the prosecutor, they will generally not be deemed prejudicial. Frost, supra, 158 N.J. at 83. That is because, "[t]he failure to object suggests that defense counsel did not believe the remarks were prejudicial at the time they were made. The failure to object also deprives the court of an opportunity to take curative action." Id. at 84. The question is whether the statements in the prosecutor's summation constituted prosecutorial misconduct that was so egregious it deprived defendant of a fair trial. Id. at 83.

Defendant argues that comments in the prosecutor's summation improperly suggested her personal belief that defendant's "conduct was a studied performance," falsely aimed to convince the authorities and family members that Zoppi had committed suicide.

The comments were permissible because the proofs at trial, including defendant's post-arrest letter to her husband and her confession, reasonably suggested that she sought to exculpate herself by staging her mother's alleged suicide. See State v. Nelson, 173 N.J. 417, 472 (2002) ("Although generally limited to commenting on the evidence and drawing reasonable inferences from the proofs presented, prosecutors are permitted considerable leeway to make forceful, vigorous arguments in summation.").

In addition, defendant contends the prosecutor's comments that defendant's post-arrest letter to her husband demonstrated her efforts "to beat her case with [the] insanity defense" constituted an impermissible expression of the prosecutor's personal belief in her guilt, "perhaps through extra-record information." The prosecutor's comments were reasonable inferences from the evidence, specifically defendant's statements in her letter to her husband. Defendant further asserts that the prosecutor's comments about the letter "insinuated that preparing for trial evinced guilt," which impermissibly infringed on her constitutional right to prepare a defense. This argument is without sufficient merit to warrant discussion. Rule 2:11-3(e)(2).

Defendant also argues that the prosecutor's comments about the letter unfairly denigrated defense counsel and Latimer by suggesting that she conspired with them to "conceal and distort the truth." "It is well settled that prosecutors are not permitted to cast unjustified aspersions on the defense or defense counsel." State v. Rodriguez, 365 N.J. Super. 38, 50 (App. Div. 2003), certif. denied, 180 N.J. 150 (2004). Despite the questionable character of the prosecutor's comment, the absence of an objection suggests that defense counsel did not consider it prejudicial in the context of trial. Frost, supra, 158 N.J. at 83. Furthermore, even if we did view the comment as improper, we would not find it to be sufficiently egregious to warrant reversal.

Also with respect to her post-arrest letter to her husband, defendant argues the prosecutor intentionally misstated a portion of it. The minor, fleeting misstatement did not deprive defendant of a fair trial because the letter was admitted into evidence, and the judge instructed the jurors at the start of trial and in the final charge that it was their recollection of the evidence that controlled.

Defendant argues that the prosecutor also improperly suggested that evidence of her financial circumstances at the time of her mother's death demonstrated her propensity for deception. Before trial, the motion judge ruled that such evidence was admissible as N.J.R.E. 404(b) motive evidence. At summation, the prosecutor stated

[Defendant] confessed to killing her mother. And, at the very end [of her July 27, 2009 statement], she was asked about an affair. It's become clear that this woman was having an affair. The only thing that comes into play with an affair is it shows what a train wreck she was leading up to this murder.

Because it was part of her deception. It was part of her deception. She's deceiving family, she's deceiving her husband, she's deceiving the creditors, she's deceiving the mortgage company, she's certainly deceiving PSE&G, because she asked her neighbor to rig the PSE&G back on.

[(emphasis added).]

During the final charge, the judge delivered the Model N.J.R.E. 404(b) jury instruction,6 stating in pertinent part

Now, Ladies and Gentlemen, the State . . . has introduced evidence that the defendant had serious financial problems, and produced certain phone records, credit card records, banking records, PSE&G records, the Twiddy real estate agency records, [the law firm's] records, audiotapes, the testimony regarding the inheritance of Christopher Lunney from his father.

. . .

However, you may not use this evidence to decide that the defendant has a tendency to commit crimes or that she is a bad person. That is, you may not decide that, just because the defendant has committed other crimes, wrongs, or acts, she must be guilty of the present crime. I have admitted the evidence only to help you decide the specific question as presented by the State for that purpose.

You may not consider it for any other purpose and may not find the defendant guilty simply because the State has offered evidence that she committed other crimes, wrongs, or acts.

Even if improper, the prosecutor's comment was isolated and fleeting. The trial judge delivered a proper limiting instruction during the final charge. The comment made by the prosecutor was not sufficiently prejudicial to warrant reversal. See State v. Engel, 249 N.J. Super. 336, 382 (App. Div.) (prosecutor's "errant remark" did not constitute misconduct when "viewed in the context of a protracted trial" and where trial judge charged the jury "that statements made by the attorneys were not to be considered as evidence[, which] obviated any lingering potential for undue prejudice"), certif. denied, 130 N.J. 393 (1991).

For the first time in her pro se supplemental brief, defendant argues that Prachar "perjured" himself during trial, which resulted in "all the case records becom[ing] questionable and tainted." Defense counsel vigorously cross-examined Prachar. During summation, counsel questioned Prachar's credibility several times on various topics. It was for the jury to determine whether Prachar testified credibly. See, e.g., State v. J.Q., 252 N.J. Super. 11, 39 (App. Div. 1991) ("[C]redibility is an issue which is peculiarly within the jury's ken and with respect to which ordinarily jurors require no expert assistance."), aff'd, 130 N.J. 554 (1993). To the extent defendant argues that her counsel was ineffective for not sufficiently emphasizing the alleged inconsistencies in Prachar's testimony, such argument should be raised in a petition for post-conviction relief, not on direct appeal. See State v. Preciose, 129 N.J. 451, 460 (1992) ("Our courts have expressed a general policy against entertaining ineffective-assistance-of-counsel claims on direct appeal because such claims involve allegations and evidence that lie outside the trial record.").

We find defendant's remaining contentions in her counseled and pro se briefs to be without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).

Affirmed.

1 Because defendant and her husband Christopher share the same last name, we refer to them by their first names.

2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)

3 To avoid confusion, we will refer to Joseph by his first name.

4 An audio recording of the 10:16 a.m. telephone call was played for the jury. Although that recording is not part of the appellate record, defendant concedes that she called Chase at that time and gave the representative "Zoppi's information when prompted for the name and social-security number on the account."

5 In August 2011, Christopher divorced defendant.

6 Model Jury Charge (Criminal), "Proof of Other Crimes, Wrongs or Acts" (June 4, 2007).