STATE OF NEW JERSEY v. DEBRA A. AQUILINAAnnotate this Case
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-0656-09T1
STATE OF NEW JERSEY,
DEBRA A. AQUILINA,
a/k/a Debra Ludvik,
Debra Sakevich, Debra Vitaro
and Debra Aqyukuba,
January 19, 2012
Submitted December 6, 2011 - Decided
Before Judges Carchman, Fisher and Baxter.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 05-10-1857.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).
John J. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).
Defendant Debra Aquilina appeals from her May 1, 2009 conviction on charges of first-degree murder, N.J.S.A. 2C:11-3 (count one); first-degree conspiracy to commit murder, N.J.S.A. 2C:11-3/2C:5-2 (count three); third-degree possession of cocaine and heroin, respectively, N.J.S.A. 2C:35-10(a)(1) (counts five and six); and third-degree hindering prosecution, N.J.S.A. 2C:29-3(b)(1) (count seven).1 After appropriate merger, the judge imposed a sentence of life imprisonment on count one, subject to the eighty-five percent parole ineligibility term required by N.J.S.A. 2C:43-7.2, concurrent to five-year terms of imprisonment on counts five and six. The judge imposed a consecutive five-year term of imprisonment on count seven.
On appeal, defendant raises the following claims:
I. THE DEFENDANT'S ORAL STATEMENTS MADE TO DETECTIVE BREIT AT THE EDNA MAHAN CORRECTIONAL FACILITY FOR WOMEN SHOULD HAVE BEEN SUPPRESSED BECAUSE THEY WERE THE RESULT OF IMPROPER POLICE "OVERREACH" AND VIOLATED THE DEFENDANT'S CONSTITUTIONAL DUE PROCESS RIGHT TO FUNDAMENTAL FAIRNESS.
II. THE DEFENDANT'S CONVICTIONS SHOULD BE REVERSED BECAUSE TESTIMONY THAT SHE FLIRTED WITH A POLICE OFFICER MINUTES AFTER HER HUSBAND WAS PRONOUNCED DEAD, AND TESTIMONY THAT THE DEFENDANT ATTEMPTED TO SEDUCE HER BROTHER-IN-LAW SHORTLY BEFORE HER HUSBAND'S DEATH, WAS ADMITTED FOR AN IMPROPER PURPOSE, AND EVEN IF RELEVANT, SHOULD HAVE BEEN EXCLUDED PURSUANT TO N.J.R.E. 403. (Not raised below).
III. DR. SINGH'S TESTIMONY THAT THE "MANNER OF DEATH WAS HOMICIDE" WAS INADMISSIBLE AS A NET OPINION BECAUSE IT WAS BASED ON HIS SUBJECTIVE BELIEF THAT MARK AQUILINA'S STATEMENT WAS TRUTHFUL. (Not raised below).
IV. THE TRIAL COURT COMMITTED HARMFUL ERROR IN DENYING THE DEFENDANT'S MOTION TO STRIKE DR. SIEK'S TESTIMONY.
A. DR. SIEK'S TESTIMONY WAS INADMISSIBLE UNDER N.J.R.E. 702 and N.J.R.E. 703.
B. DR. SIEK'S TESTIMONY VIOLATED RULE 3:13-3(c)(9).
V. THE TRIAL COURT'S "ELECTION" CHARGE WAS FLAWED AND UNDERMINED DEFENDANT'S FIFTH AMENDMENT RIGHTS. (Not raised below).
VI. THE TRIAL COURT MISAPPLIED ITS DISCRETION IN DENYING THE DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL MADE AT THE END OF THE STATE'S CASE AND THE DEFENDANT'S POST-VERDICT MOTION FOR A NEW TRIAL.
VII. THE AGGREGATE BASE CUSTODIAL TERM OF LIFE IMPRISONMENT PLUS 5 YEARS WAS MANIFESTLY EXCESSIVE.
We reject these contentions, and affirm defendant's conviction and sentence, except for counts five and six, for which only one sentence should have been imposed. We remand for merger of count six with count five.
At approximately 6:00 a.m. on February 15, 2003, the Garfield Police Department received a telephone call from defendant stating that when she awoke, she noticed that her husband Ralph Ludvik, Jr., was not breathing. A few minutes later, when Sergeant John Demko arrived at defendant and Ludvik's residence on Palisade Avenue, defendant directed him to the second floor of the home, where he saw Ludvik lying face up on the floor, wedged between a wall and the bed. Because there was no light in the bedroom, Demko dragged Ludvik to the kitchen. While Demko was in the course of doing so, defendant attempted to grab something from her husband's pocket. Demko told her to stop. At that point, defendant became upset, telling Demko she was merely trying to retrieve money that was hers. According to Demko, there were signs of rigor mortis and he believed that Ludvik had been "deceased for quite some time." Paramedics arrived shortly thereafter, and pronounced Ludvik dead at 6:18 a.m.
While Demko was in his patrol car outside defendant's and Ludvik's home completing a form to be provided to the medical examiner, defendant approached him in a "flirtatious" manner and said, "I've seen you before, I've seen you around. How are you?" According to Demko, defendant was not "crying" or "showing any signs of grief at that point in time."
At 6:30 a.m., Detective Michael Latona of the Garfield Police Department arrived at the scene and spoke with defendant, who informed him that she was Ludvik's wife and that her husband was a heroin user. She pointed to empty bags in the bedroom that appeared to contain trace amounts of heroin. In a dresser drawer, Latona also observed drug paraphernalia, including syringes, plastic tubes and a tourniquet, although Latona was unable to find the syringe that caused the apparent overdose. Latona also interviewed James Gerritsen, who had moved into the house a few weeks earlier. Gerritsen told Latona that he had gone to sleep at 10:30 p.m. the previous night, and was awakened by defendant at 5:30 a.m. the next morning, who stated that Ludvik was not breathing. Gerritsen explained that Ludvik's temperament of late had been "somewhat odd," and Ludvik "had been more angry and not his normal self."
Latona did not interview defendant's stepson, Mark Aquilina, who also lived in the home.
A toxicology report prepared by Theodore Siek, Ph.D., at the request of the medical examiner, Dr. Sunandan Singh, attributed Ludvik's death to an overdose of heroin. Cocaine was also found in his blood, but not in an amount sufficient to have caused his death. Based on the report of the toxicologist, and the drug paraphernalia found in Ludvik's bedroom, Dr. Singh concluded that Ludvik's death was the result of an accidental drug overdose.
Singh's conclusion remained unchallenged until fifteen months later, when on May 11, 2004, the Bergen County Prosecutor's Office received a letter from Frank Baez, an inmate at the Bergen County Correctional Facility, where Mark Aquilina, defendant's son, was incarcerated on unrelated charges. Baez's letter made reference to a comment by Mark Aquilina admitting that he had been involved in a suspicious death that occurred in Garfield. Contacting the Garfield Police Department, the Prosecutor's Office learned of Ludvik's death due to a drug overdose in February 2003. After interviewing Baez, Detectives Gil Breit and Mark Bendul brought Mark Aquilina to the Bergen County Prosecutor's Office for questioning on March 4, 2005. After receiving Miranda2 warnings, Mark initially denied taking part in Ludvik's murder. After further questioning, he provided a full confession about a conspiracy to kill Ludvik, between defendant, Gerritsen and himself. Mark explained that his mother believed that if Ludvik were dead, she would inherit the house on Palisade Avenue where Mark, defendant, Gerritsen and Ludvik had been living. According to Mark, the three devised a plan "to somehow take over the house," which involved "taking care of Ralph" by "getting him out of the way." Mark explained that the only reason his mother married Ralph Ludvik was "to get her hands on the house."
Mark explained that on the day of Ludvik's death, Ludvik had driven to Paterson to buy cocaine. While he was gone, defendant and Gerritsen discussed "ways of getting rid of [Ludvik,]" and devised a plan to "give him a drug overdose." In furtherance of that plan, Mark dissolved nearly four bags of heroin, and drew the heroin solution into a syringe, knowing that such quantity was a lethal dose. Mark admitted that following a signal from defendant, he handed the syringe to an unsuspecting Ludvik, who injected the heroin into his arm. Ludvik immediately clutched his chest, and dropped to the floor unconscious. Mark explained that while Ludvik was unconscious, defendant rifled through Ludvik's pockets and removed whatever cash she could find. Afterward, he and defendant "part[ied] through the night." Shortly before 6:00 a.m., they returned to the bedroom, realized Ludvik was dead, and called the police.
In the March 4, 2005 statement that Mark provided to Detectives Breit and Bendul, he also explained that during the time his mother was married to Ludvik, she was "fooling around" with Gerritsen, and that his mother and Gerritsen intended to "get together" after Ludvik was dead.3
Ultimately, Mark provided a twenty-seven page statement to Detectives Bendul and Breit, and on videotape, acknowledged that his statement was true. At defendant's trial, Breit read Mark's entire statement to the jury, and played the videotape.
The State presented Mark's testimony at trial. After initially asserting his Fifth Amendment right to remain silent, Mark was granted immunity by the Attorney General. Confronted by the prosecutor with his March 4, 2005 statement to Detectives Breit and Bendul, Mark insisted that "it was all made up. Nothing ever happened. . . . It was all just a fictional account." He denied telling Baez that he participated in Ludvik's murder, and asserted that he neither "hot loaded" a syringe nor handed the deadly quantity of heroin to Ludvik.
The State also presented the testimony of Gerritsen, who denied any involvement in the plan to murder Ludvik. Gerritsen explained that he moved into the home on Palisade Avenue with defendant and Ludvik in the latter part of 2002, because Ludvik had lost his job, and Ludvik and defendant were experiencing financial difficulties. Defendant and Ralph had married a few months earlier. Gerritsen testified that while they were all living together, defendant continually made disparaging remarks about Ludvik. He also testified that Mark suggested to defendant that she should loosen one of the stair rails, push Ludvik down the stairs and "make it look like an accident."
Gerritsen also testified, without objection, that while he was living in the house with defendant, Ludvik and Mark, there were several occasions when defendant came into his room and crawled into his bed. When Gerritson protested, and told her she should be in bed with her husband, and not with him, she became "pissy," which he defined as "[a]ggravated."
The State also presented the testimony of Ludvik's father, Ralph Sr., who explained that before Ralph Jr.'s death, he, Ralph Sr., had explained to defendant that he believed title to the property on Palisade Avenue had passed to Ralph Sr.'s sister Jane after their mother's death. Ralph Sr. explained that defendant told him a lawyer had assured her that her husband, Ralph Jr., was the owner of the property.
In his testimony, Detective Breit described his interview with defendant at the Edna Mahan Correctional Facility, where defendant was incarcerated on unrelated charges involving the fraudulent use of a credit card. The jury was merely told that the interview occurred in a "break room, interview room setting," with no mention of defendant being incarcerated. Breit testified that he began his interview with defendant by telling her that he was there to discuss the circumstances of her husband's death, at which time she immediately responded that he had died of a drug overdose. When Detective Breit handed defendant the pre-printed Miranda rights form, and explained that he needed to advise her of her constitutional rights, she became "hostile and irate." According to Breit, defendant's agitation increased, and "her demeanor changed," when Breit told her he had already spoken with her son, Mark. Defendant then demanded to know what Mark had told him, but Breit explained he was unable to provide her with any further information until she signed the Miranda rights card. At that point, defendant "became more hostile," "started to . . . cry and [became] upset and . . . was very agitated."
Breit testified that he was never able to interview defendant because his discussion with her "just went into . . . a circular conversation" in which he would try to elicit her cooperation and have her sign the Miranda rights card, while defendant would demand to know why it was necessary that she do so. Ultimately, after forty-five minutes, Breit terminated the interview when defendant said, "if you're not going to answer my questions, I'm not going to answer yours."
The State also presented Dr. Singh, who testified that after reading Mark Aquilina's March 2005 statement, he had not changed his earlier conclusion that Ludvik died from a drug overdose; however, Mark's statement caused him to alter his original conclusion that the death was accidental. Singh instead concluded that the manner of death was homicide. Dr. Singh conceded that if Mark's statements to the Prosecutor's Office were false, he would be obliged to revise his opinion accordingly.
The toxicologist, Dr. Siek, testified that the quantity of heroin found in Ludvik's blood was five times more than the therapeutic level of morphine.4 Because the heroin had not been completely metabolized, Dr. Siek opined that it had been ingested only a few hours prior to Ludvik's death. In sum, Dr. Siek concluded that Ludvik died due to an overdose of morphine and cocaine.
At the conclusion of deliberations, the jury returned the verdict we have described. Prior to sentencing, defendant moved for acquittal and for a new trial. The judge denied both motions.
In Point I, defendant argues the trial judge erred when he denied her motion to suppress the oral statements she made to Detective Breit during the questioning at the Edna Mahan Correctional Facility. She maintains that the statements she made were the result of police overreaching and violated her right to fundamental fairness. The State counters that the statements were "voluntary and admissible" because defendant was not being interrogated when she made the statements. The State also urges us to reject defendant's contention that her conduct constituted an implicit assertion of her right to remain silent, noting that "defendant never remained silent long enough for Detective Breit to advise her of her rights [and that] [w]hen she wanted to end the interview, she knew how to do so and the police immediately terminated any discussion with her."
A suspect who is in police custody or under interrogation has the absolute right to remain silent. State v. Muhammad, 182 N.J. 551, 567 (2005). "The requirement that interrogators warn suspects of [their right to remain silent] is deemed necessary due to the pressure inherent in an incommunicado interrogation of individuals in a police-dominated atmosphere." State v. Stott, 171 N.J. 343, 364 (2002) (internal quotation marks and citation omitted).
Although a suspect is always free to waive the privilege against self-incrimination, and confess to committing a crime, that waiver "must never be the product of police coercion." State v. Presha, 163 N.J. 304, 313 (2000). For that reason, a confession will not be admissible as evidence unless the State proves beyond a reasonable doubt "that the suspect's waiver was knowing, intelligent, and voluntary in light of all of the circumstances." Ibid.
Whenever a suspect is in custody and is being subjected to interrogation, the police must administer Miranda warnings. Stott, supra, 171 N.J. at 365. However, the obligation of a police officer to administer Miranda warnings "has no application to statements that are 'volunteered.'" State v. Brabham, 413 N.J. Super. 196, 210 (App. Div.), certif. denied, 203 N.J. 440 (2010). See also Miranda, supra, 384 U.S. at 478, 86 S. Ct. at 1630, 16 L. Ed. 2d at 726. "Interrogation triggering the State's obligation to deliver Miranda warnings requires words or actions on the part of the police that they should have known were reasonably likely to elicit an incriminating response." Brabham, supra, 413 N.J. Super. at 210-11 (internal quotation marks and citation omitted).
Applying those standards, the trial judge concluded that Detective Breit never had the opportunity to read the Miranda statement to defendant in its entirety, much less to have defendant sign the Miranda rights form, because defendant became combative and argumentative, thereby interfering with the detective's efforts to explain to defendant her Miranda rights and secure her cooperation with the signing of the form. The judge reasoned:
Now, I did find that certain statements were made by [defendant] during the course of this encounter. As indicated before, I do find that she was in custody at the time and that would ordinarily trigger Mirandarights if any interrogation or questioning was to have been done. However, I find that the officers were not even able to get to the point of doing any interrogation or questioning due to the continued conversation by [defendant] asking them what her son had said and why they were reading her these rights.
Basically, I find that any comments that were made . . . that any of these comments were made by [defendant] not in response to any custodial questioning, however, but were made by her spontaneously when being advised by the officers that were there to read her her rights and attempt to gain information from her regarding the drug-related death of her husband. Inasmuch as the statements were not made as the product of any custodial questioning, I do find that they would be admissible.
I don't find that they were in any way involuntary. I don't find that any threats, force or any other promises may have been made to [defendant] to [in]duce her to make the statements that she did, in fact, make on the day in question. I do note that [defendant] was apparently handcuffed at the time; however, I find nothing else regarding a situation which would lead me to conclude that her responses were anything other than voluntary in nature.
We accept the trial judge's findings of fact after the Miranda hearing, as they are amply supported by the record. State v. Locurto, 157 N.J. 463, 470-71 (1999). Moreover, we will affirm the judge's legal conclusions made after a Miranda hearing unless the judge's determination of the issue "was so wide of the mark that a manifest denial of justice resulted." State v. Carter, 91 N.J. 86, 106 (1982).
Having carefully reviewed defendant's contentions in light of the record and applicable law, we are satisfied, as was the trial judge, that whatever incriminating statements defendant made during Detective Breit's attempt to question her, were neither involuntary nor coerced. Rather than listen to Detective Breit and provide responsive answers to his attempts to administer the Miranda warnings, defendant repeatedly interrupted and argued with him, making it impossible for him to administer Miranda warnings. We further conclude that defendant's repeated attempts to inquire of Detective Breit why Miranda warnings were necessary cannot reasonably be viewed as an assertion of defendant's right to remain silent. Considering the totality of the circumstances, we are satisfied that the judge's denial of defendant's motion to suppress the remarks she made to Detective Breit was consistent with all applicable constitutional requirements.
We likewise reject defendant's contention that police engaged in "overreaching conduct" when they failed to advise her that she was a suspect in, or a target of, a criminal investigation. See State v. Vinegra, 73 N.J. 484, 489 (1977). The record demonstrates that at the outset of his questioning of defendant, Detective Breit told her that although he agreed with her assertion that her husband died of a drug overdose, "there were more questions that needed to be asked." He also told her that in light of law enforcement's interview with her son Mark, Breit was now seeking to question her as "part of a criminal investigation" that required him "to advise [her] of [her] constitutional rights." Although Detective Breit did not expressly utter the phrase "you are now a suspect in the death of your husband," the tenor and content of his statements to defendant clearly led to that inference, as evidenced by defendant's becoming increasingly alarmed and increasingly hostile when Detective Breit mentioned that he had already spoken to Mark. Under such circumstances, we reject defendant's claim of police "overreaching" and conclude that Detective Breit complied with the requirements of Vinegra.
In Point II, defendant asserts that Sergeant Demko's testimony concerning her flirtatious behavior toward him at the crime scene, and Gerritsen's testimony that defendant attempted to seduce him in the time period before her husband's death, denied her a fair trial. Relying on N.J.R.E. 404(a) and (b), defendant asserts that the State impermissibly introduced evidence of her "bad character" to prove that she "acted in conformity therewith" by killing her husband. Because defendant did not object to this testimony at trial, we will not reverse on this ground unless the error was clearly capable of producing an unjust result. State v. Macon, 57 N.J. 325, 336 (1971); R. 2:10-2.
As a threshold matter, we reject defendant's claim that this evidence was not relevant. Relevant evidence is any evidence that has "a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. "In relevance determinations, the analysis focuses on 'the logical connection between the proffered evidence and a fact in issue.'" State v. Williams, 190 N.J. 114, 123 (2007) (citation omitted).
If evidence makes an inference to be drawn more logical, the evidence should be admitted unless otherwise excludable by a rule of law. State v. Bakka, 176 N.J. 533, 545 (2003). Here, defendant argues that this "bad character" evidence violates N.J.R.E. 404(a). N.J.R.E. 404(a) states: "Evidence of a person's character or character trait, including a trait of care or skill or lack thereof, is not admissible for the purpose of proving that the person acted in conformity therewith on a particular occasion . . . ." The record demonstrates that the State did not offer this "bad character evidence to prove that defendant acted in conformity therewith." See N.J.R.E. 404(b) (stating that evidence of a defendant's prior bad acts is not admissible to prove a propensity to commit the crime in question).
Contrary to defendant's assertions, this evidence was not introduced to prove defendant was a person of bad character and was therefore more likely to have murdered her husband. Instead, the evidence was introduced to prove that defendant had little regard, and certainly no love, for her husband. It follows that, if she had no regard for her husband, she would have been more willing to participate in a conspiracy to murder him than if she had cared about him and loved him. Under such circumstances, the testimony in question satisfied the relevance standard established by N.J.R.E. 401 because the evidence possessed "a tendency in reason to prove or disprove any fact of consequence to the determination of the action."
Because there was no error in the admission of this testimony, the judge had no sua sponte obligation to exclude it. We also conclude that even if there was any error in the admission of Gerritsen's testimony that defendant attempted to seduce him, the error was harmless in light of Mark's testimony that his mother was "fooling around" with Gerritsen while Ludvik was still alive. For all of these reasons, we reject the claim defendant advances in Point II.
In Point III, defendant argues that she was denied a fair trial when the judge permitted the State to offer Dr. Singh's testimony that the "manner of death was homicide." Defendant asserts this testimony was an inadmissible net opinion as it was based on Dr. Singh's subjective belief that Mark Aquilina's statement was truthful. The State urges us to reject that argument, contending that Dr. Singh, the medical examiner, was obliged to consider not only scientific evidence, but also facts and circumstances surrounding the death, and that the opinion offered by Dr. Singh was well within the bounds of admissible expert opinion.
As defendant did not object to the admission of this testimony at trial, we will not reverse on this ground unless any error was clearly capable of producing an unjust result. Macon, supra, 57 N.J. at 337; R. 2:10-2.
As we have noted, in the weeks that immediately followed Ludvik's death, Dr. Singh listed the manner of death as "accident." However, in July 2005, after Detective Breit provided Dr. Singh with the statement of Mark Aquilina, Dr. Singh amended the manner of death to "homicide." Dr. Singh testified that it is common for medical examiners to review witness statements to determine the manner of death. He acknowledged that he based his conclusion that Ludvik's death was a "homicide," on Mark Aquilina's statement. He further testified that if Mark's statement to Detectives Breit and Bendul were untrue, then his opinion as to the manner of death would change accordingly.
Whenever law enforcement has reason to believe that a death was the result of homicide, the police must report those facts to the medical examiner and to the County Prosecutor. N.J.S.A. 52:17B-86(a), 87. The medical examiner is required to "fully investigate the essential facts concerning the medical causes of death and [to] take the names and addresses of as many witnesses thereto as may be practicable to obtain[.]" N.J.S.A. 52:17B-87. In light of the provisions of those two statutes, we are satisfied that upon receiving additional information from law enforcement, Dr. Singh was obliged to consider whether he needed to revise his original opinion that the manner of death was "accidental."
Moreover, we reject defendant's assertion that Dr. Singh's testimony was an inadmissible net opinion. Unquestionably, Dr. Singh explained to the jury the basis upon which he concluded that the manner of death was a homicide. In light of the explanation the medical examiner provided, we reject defendant's contention that the opinion offered was an inadmissible net opinion. State v. Townsend, 186 N.J. 473, 494 (2006) (requiring "an expert to provide the way and wherefore of his or her opinion, rather than a mere conclusion").
We likewise reject defendant's assertion that Dr. Singh's testimony -- that the death was a "homicide" -- was inadmissible because it was tantamount to an opinion that defendant was guilty of the crime charged, thereby violating the guidelines established by State v. Odom, 116 N.J. 65, 77 (1989). Dr. Singh rendered no opinion as to who committed the homicide. Rather, he simply adhered to the statutorily-prescribed procedures applicable to forensic methodology. Additionally, the judge instructed the jurors that they were not obliged to accept the expert opinion offered by Dr. Singh, and that they were entitled to reject that opinion in its entirety if they deemed the opinion unworthy of belief. Because the opinion offered by Dr. Singh fully complied with all statutory requirements governing the conduct of medical examiners, and because Dr. Singh did not express a direct opinion that defendant was guilty, we reject the arguments defendant advances in Point III.
In Point IV, defendant contends that Dr. Siek's testimony should have been excluded. In particular, she asserts that Dr. Siek's testimony regarding the toxic level of heroin in Ludvik's bloodstream, and Dr. Siek's opinion that the heroin was injected only a few hours before Ludvik's death, exceeded the scope of the opinion Dr. Siek expressed in his expert report, and also constituted an inadmissible net opinion. The judge rejected defendant's assertion that Dr. Siek's testimony impermissibly exceeded the scope of his expert report, reasoning that Dr. Siek's written opinion contained a considerable amount of technical data and that an expert "is allowed some latitude, some reasonable extrapolation of the results in order to explain his opinion [to the jury]." The judge also observed that "both parties" had posed questions to Dr. Siek concerning "how the levels of drugs contained [in Ludvik's bloodstream] could have been ingested, . . . whether it be by injection or through sniffing." In light of the extent of the questioning, the judge found that the State was entitled to pose "follow-up questioning" to resolve the issues raised in cross-examination. Ultimately, the judge concluded that Dr. Siek's opinion concerning the levels of heroin and cocaine "[was] proper extrapolation" and denied defendant's motion to strike Dr. Siek's expert testimony.
We reject defendant's argument that Dr. Siek's testimony regarding the toxic level of the heroin found in Ludvik's blood so exceeded the scope of Dr. Siek's expert report as to constitute a violation of the State's discovery obligations under Rule 3:13-3(c)(9). Dr. Siek's March 24, 2003 expert report stated that, based upon laboratory specimens obtained from Ludvik during the autopsy, it was his opinion that the "overdose of heroin and cocaine provide[d] a fully competent toxicological cause of death." His report listed the morphine level as .52 milligrams per liter. His trial testimony was identical. Specifically, he noted that Ludvik's blood "contained .40 milligrams of cocaine per liter, .82 milligrams of benzolecgonine per liter and .52 milligrams of morphine per liter."
Rule 3:13-3(c)(9) obligates the State to provide a defendant with the name of any expert the prosecutor expects to call as an expert witness at trial, along with the expert's qualifications and "the subject matter on which the expert is expected to testify, a copy of the report, if any, . . . or if no report is prepared, a statement of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion." We are satisfied that Dr. Siek's March 24, 2003 report satisfied the requirements of that Rule. His report specified that the heroin and cocaine found in Ludvik's blood were in a quantity so high as to cause Ludvik's death.
Although the report did not specify, as Dr. Siek did at trial, that the heroin had metabolized into morphine, and that the morphine was at a blood level five times higher than a therapeutic amount when morphine is used for medical purposes, the opinion at trial was not different from the opinion Dr. Siek had provided in his report. It was simply additional detail to explain to the jury the basis for his opinion that the heroin and cocaine were the cause of Ludvik's death. We reject defendant's contention that Dr. Siek's testimony so exceeded the scope of his report as to violate Rule 3:13-3(c)(9).
Defendant's next argument, that Dr. Siek's opinion was an inadmissible net opinion that the judge was obliged to exclude, lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Dr. Siek's testimony explained in detail the basis for his conclusion that Ludvik died of a heroin overdose. We reject all of the claims defendant has advanced in Point IV.
In Point V, defendant asserts that the judge's instruction to the jury on defendant's election not to testify was "flawed" and impermissibly eroded her Fifth Amendment right to remain silent. At trial, the judge charged the jury as follows:
As you know, the defendant Debra Aquilina elected not to testify at trial. It is her constitutional right to remain silent. You must not consider for any purpose or in any manner in arriving at your verdict the fact that the defendant did not testify. That fact should not enter into your deliberations or discussions in any manner at any time. The defendant is entitled to have the jury consider all evidence presented at trial. She is presumed innocent even if she chooses [not]5 to testify.
This charge was consistent with the model jury charge at that time.6 The jury charge, as a whole, had no capacity to lead jurors astray. See State v. Miller, 205 N.J. 109, 127 (2011). The jurors were clearly told not to consider defendant's decision not to testify. In light of Miller, we reject defendant's contention that the judge's instruction to the jury on her decision not to testify denied her a fair trial.
In Point VI, defendant asserts that the judge improperly denied her motion for a judgment of acquittal and for a new trial. She asserts there were only "speculative proofs" that did not satisfy the standard established by State v. Reyes, 50 N.J. 454, 458-59 (1967). In particular, she asserts that the jury's verdict of guilt was based solely on the recanted statement of Mark Aquilina and the "non-credible plea-induced testimony of James Gerritsen," without any "hypodermic needle mark" ever being found on "the deceased's body[.]"
On appeal, we apply the same standard the trial judge applied in determining whether the trial judge erred in denying defendant's motion for acquittal. State v. Moffa, 42 N.J. 258, 263 (1964). The trial judge must grant a motion to acquit if "the evidence is insufficient to warrant a conviction." R. 3:18-1. "More specifically, the question the trial judge must determine is whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt." Reyes, supra, 50 N.J. at 458-59.
So viewed, we are satisfied that the judge correctly denied defendant's motions. Giving the State the benefit of all favorable inferences that a reasonable jury could draw, the expert opinion of Drs. Singh and Siek, when combined with Mark Aquilina's statement that was read to the jury, Detective Breit's description of defendant's conduct at the scene, and Ralph Sr.'s testimony that defendant was preoccupied with obtaining title to the Palisade Avenue property, could have led a jury to find defendant guilty beyond a reasonable doubt. For that reason, we reject the claim defendant advances in Point VI.
In Point VII, defendant argues that the "aggregate
base custodial term of life imprisonment plus five years was manifestly excessive." In particular, she asserts that the judge's findings concerning the aggravating factors were unsupported by the record and that the judge's imposition of the maximum sentence cannot be sustained. The State contends that the judge "carefully took into account all the circumstances of the case in imposing a manifestly appropriate sentence."
When reviewing a claim of an excessive sentence, our role is sharply circumscribed. State v. Bieniek, 200 N.J. 601, 607-08 (2010). As the Bieniek Court stated:
The [New Jersey Code of Criminal Justice] was designed to promote [consistency in sentencing] by providing courts with a system for "structured discretion" in sentencing. State v. Roth, 95 N.J. 334, 345 (1984). And, we have "assured our trial judges that when they 'exercise discretion in accordance with the principles set forth in the Code and defined by us . . . , they need fear no second-guessing.'" State v. Ghertler, 114 N.J. 383, 384 (1989) (quoting Roth, supra, 95 N.J. at 365).
If the trial judge's findings of statutory aggravating and mitigating factors "were based upon competent credible evidence in the record," and the judge imposed a sentence within the permissible range for the offense, we will not substitute our view of a proper sentence for that imposed by the trial judge. Id. at 608.
The trial judge found four aggravating factors: the risk defendant would commit another offense, N.J.S.A. 2C:44-1(a)(3); defendant took advantage of a position of trust to commit the crime, N.J.S.A. 2C:44-1(a)(4); the extent of defendant's prior record,7 N.J.S.A. 2C:44-1(a)(6); and the need to deter defendant and others from committing a crime, N.J.S.A. 2C:44-1(a)(9). He found no mitigating factors.
The only factor that defendant specifically argues is inapplicable is N.J.S.A. 2C:44-1(a)(4), the breach of trust. She asserts that she was not in a position of public trust. This aggravating factor states: "A lesser sentence will depreciate the seriousness of the defendant's offense because it involved a breach of the public trust . . ., or the defendant took advantage of a position of trust or confidence to commit the offense."
The judge did not rely on defendant's breach of the public trust. Rather, the judge relied upon the fact that defendant was in a position of trust or confidence with her husband. This factor is applicable, and we conclude that all of the aggravating factors the judge found are well-supported by the evidence.
In another portion of Point VII, defendant argues that the judge should not have imposed consecutive sentences on counts five and six. The record reflects that the sentences imposed on counts five and six were concurrent to each other, but consecutive to defendant's murder conviction on count one. We note however, and the State concedes, that the judge improperly imposed separate five-year sentences on counts five and six. See State v. Strecko, 244 N.J. Super. 463, 465 (App. Div. 1990) (holding that "simultaneous possession of two drugs" must "merge when neither offense involves an intent to distribute"). For that reason, we remand for resentencing, at which time the judge shall merge the sentence imposed on count six with the sentence imposed on count five. In all other respects, we affirm the sentence.
e affirm defendant's conviction and sentence, with the exception of counts five and six, which we remand for purposes of merger.
1 Counts two and four do not pertain to defendant.
2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
3 Mark Aquilina was tried separately and convicted of all charges. We affirmed his convictions and sentence, except for ordering the merger of the two narcotics possession counts. State v. Aquilina, No. A-4151-07 (App. Div. March 31, 2011).
4 Dr. Siek explained that heroin "break[s] down" into morphine once it is inside the body.
5 The State contends, and we agree, that the omission of the word "not" here is a stenographical error because it is inconsistent with the rest of the charge. Even if it is not a stenographic error, the jury charge, when considered in its entirety, makes it clear that defendant's decision to remain silent was not to be considered.
6 The model jury charge was amended in May 2009 to state: "[He] [She] is presumed innocent whether or not he/she chooses to testify. Model Jury Charge (Criminal), "Defendant's Election Not to Testify" (revised May 4, 2009).
7 In addition to three municipal convictions, defendant's prior record includes the following indictable convictions: second-degree eluding police on November 22, 2002; fourth-degree theft by unlawful taking on November 22, 2002; and third-degree fraudulent use of a credit card on January 20, 2004.