STATE OF NEW JERSEY v. PETER M. SHANLEYAnnotate this Case
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-0
STATE OF NEW JERSEY,
PETER M. SHANLEY,
May 13, 2016
Submitted May 2, 2016 Decided
Before Judges Fasciale, Nugent and Higbee.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 11-06-1197.
Joseph E. Krakora, Public Defender, attorney for appellant (Jay L. Wilensky, Assistant Deputy Public Defender, of counsel and on the briefs).
John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Elizabeth R. Rebein, Assistant Prosecutor, of counsel and on the brief).
A jury convicted defendant Peter Shanley of the murder of his wife, as well as two weapons offenses, and a judge sentenced him to prison for life. Defendant appeals from the judgment of conviction and makes these arguments: first, the trial judge erred by not dismissing the murder charge because of a prosecutor's misstatements and prejudicial remarks to the grand jury; second, defendant was denied a fair trial because the judge denied his request to sequester a witness; third, the judge excluded evidence of his wife's extramarital affair; fourth, the prosecutor made unduly prejudicial remarks in her summation; and fifth, his sentence is excessive.
We have considered defendant's arguments in light of the trial record and prevailing law, and have concluded the arguments warrant neither a dismissal of the indictment nor a new trial. We have further concluded the trial judge did not abuse his sentencing discretion. Accordingly, we affirm the judgment of conviction in its entirety.
A Bergen County Grand Jury indicted defendant for first- degree murder, N.J.S.A. 2C:11-3(a)(1) and (2) (count one); and two counts of third-degree possession of a weapon for an unlawful purpose, a knife and a club, N.J.S.A. 2C:39-4(d) (counts two and three). Defendant filed motions to suppress evidence, to suppress various statements he made to police, to exclude other crimes evidence, and to dismiss the indictment's murder count. The judge denied the motions. A jury subsequently convicted defendant on all counts. The trial judge sentenced him to life imprisonment subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, on the murder count; and to concurrent four-year prison terms on the two weapons counts. The judge also ordered defendant to pay certain penalties, assessments, and restitution. This appeal followed.
The State developed the following proofs at defendant's trial. In the spring of 2010, defendant, age fifty-nine, lived with his wife Debra, age fifty-four, in Dumont. They had two sons, an older son in his late twenties who was in the military, and a younger son in his middle twenties who lived in the basement of the family home with his girlfriend.
Debra had lost interest in defendant and their marriage. In February 2010 she had begun to spend time at a Harley Davidson dealership in Rochelle Park. In March she purchased a motorcycle and became a member of the Harley Davidson owners' group (HOG) sponsored by the dealership. While attending HOG gatherings and functions, she befriended other members, and became close friends with three in particular (her three friends or HOG friends). When she was home, Debra would spend hours on her laptop computer. According to the younger son, Debra's behavior "pushed [defendant's] buttons" and he became depressed. At some point Debra asked for a divorce.
During the second week of March 2010, eleven or twelve days before Debra's death, her younger son tried to use one of her two laptop computers and discovered it was damaged and would not turn on. He informed defendant, who said he had put it through the dishwasher because Debra was always on it. Defendant also said he had "cut up" her motorcycle. When his son asked why, defendant said he believed Debra was cheating on him.
The son went into the garage and used his cellular phone's camera to photograph the bike. The bike's frame had been cut through in several places, both handlebars had been cut and left hanging, and the seat and tires had been slashed. The damage would cost approximately $10,533 to repair. Debra reported the damage to her laptop and motorcycle to the Dumont police but declined to file a domestic violence complaint or seek a temporary restraining order because she believed defendant intended to move out.
On April 2, 2010, Debra made a deposit for an apartment where she intended to move on April 15. She told the apartment building's superintendent she was separating from her husband. Thereafter, she and defendant agreed he would move instead, so he went to see the apartment and confirmed that he would move in on April 15.
During the week of April 5, defendant and Debra drove to Pennsylvania and purchased a used Harley motorcycle for Debra. Her younger son loaned her money to use towards this purchase. On Friday, April 9, 2010, the younger son found a number of emails on Debra's other laptop computer.1 The younger son and his girlfriend left later that day to spend the weekend at the shore.
The next morning, Saturday, April 10, 2010, Debra went on a dealership-sponsored three-hour "Saddle Up" HOG ride with her three friends. Afterward, they had dinner together at a local restaurant. During dinner, Debra made plans to meet two of the three at 9:00 the next morning for another motorcycle ride. After dinner, she and two of the others went to a coffee shop where they stayed until 10:30 p.m. That is when the men last saw Debra. She did not show up for the ride the following morning.
That morning, April 11, after Debra's youngest son was unable to reach her on her cell phone, he phoned defendant, who said she was out and that he had fallen and broken his ankle. That afternoon, at approximately 5:30, one of her HOG friends called the Dumont Police Department and informed police personnel Debra had not shown up for their planned ride earlier that day. Officer Steven Brown dispatched Sergeant Michael Murphy and another officer to the parties' home to check on Debra's welfare. Officer Brown also repeatedly called Debra's cell phone and the family house phone; eventually defendant answered the landline. He told the Officer Debra was not at home, that he had hurt his ankle, and that he would come out to speak with the police in twenty minutes after he took a shower. Officer Brown relayed this information to Sergeant Murphy, who was now outside the house.
When defendant did not respond to the police who had arrived at his home, Dumont Police Chief Brian Venezio opened the unlocked front door and called out to defendant, asking him to come out. Defendant told the officers they would have to come in because he had hurt his ankle. When the officers entered, they found defendant lying on the floor of a small room, a bedroom or den, with a severely broken ankle and blood on his hands, neck, face and clothes. He had a deep cut on his neck and was unable to stand.
Chief Venezio asked where Debra was, and defendant gestured toward the room across the hall and said he had killed her. The police read defendant his Miranda rights. He told them "after he stabbed Debbie he cut his throat," and pointed to a bloodstained knife on a desk.
Sergeant Murphy found Debra lying in a large pool of blood on the floor next to the bed in the master bedroom and confirmed she was dead. She was wearing a t-shirt and underpants with a pair of black stretchy pants down around her ankles. A towel and a pair of pajama bottoms were covering her head and shoulders. A wooden billy club with a metal plug and a broken lamp were on the blood-covered bed; there was blood splatter on the ceiling and at least three walls. There appeared to be blood on both the billy club and the lamp.
Dr. Mary Ann Clayton, the Bergen County Medical examiner, arrived at the scene and noted that Debra had sustained numerous blunt and sharp force injuries to her head, face and upper body. Debra had a "gaping wound" to the left side of her neck. The blunt force injuries could have been caused by a bat or the club on the bed, while the sharp force injuries had been inflicted with a knife. Based upon the temperature of Debra's body, Clayton estimated that Debra had died at approximately 10:30 or 11:30 p.m. the previous night.
Law enforcement officers who processed the scene collected and photographed various items including the wooden club, a Rapala knife in a sheath, a Band-Aid box, and a blood-soaked t-shirt located in the kitchen garbage can. Subsequent analysis by the State police laboratory confirmed Debra's blood was on the club and the Band-Aid box, and defendant's blood was on the knife blade, the knife handle and the t-shirt.
The police had defendant transported by ambulance to a hospital where he received treatment for his injuries, including a laceration on the left side of his head. Detective John Frazer of the Bergen County Prosecutor's Office briefly interviewed defendant at 8:00 p.m. while he was waiting to have surgery on his ankle and neck. During this interview, the detective asked what had happened with Debra, and defendant replied she had been cheating on him for the last two months. When she came home the night before, they had a "little disagreement" in the bedroom and she hit him with a lamp. He "lost [his] mind" and hit her with a "black jack." After that he "cut her" with a fishing knife. He left the black jack on the bed and the knife in the bedroom across the hall.
The next day Detective Frazer and another officer again interviewed defendant at the hospital. During this recorded interview, defendant explained that Debra had changed during the last two months. She had begun fighting with him and her mother and generally "abusing" the whole family. She told him she was having a midlife crisis, had not loved him in a year and no longer wanted to be married. Their sons could not believe what was going on. Defendant described the situation as a "fuckin' nightmare."
Defendant admitted he cut Debra's motorcycle "in half" so she could not go out with her boyfriend, whom he believed to be a "guy from Oakland." He also acknowledged cutting up one of Debra's jackets and putting her "brand new laptop through the sterilize cycle in my dishwasher" in order to "clean all her information off."
Defendant said he was "glad" he "wrecked" the bike, but he also said he did only "minimal" damage to it that would have cost about $3000 to repair. He claimed to have cut the frame in spots that he knew could be repaired. He insisted Debra and her boyfriend did another $8000 worth of damage to it in order to "total it out because of insurance fraud." He told Debra that he should have had her arrested.
Defendant said Debra left the house at 8:00 on Saturday morning to go for a motorcycle ride with her "cronies" and he had expected her home by 1:00 p.m. However, she never returned and later called to cancel their dinner plans, telling him that she was going out to dinner instead with her HOG friends. He said she had canceled a lot of plans with him lately just to "needle" him, and he was reaching his "boiling point."
When Debra finally came home at 11:30 that night he was waiting for her. While she was undressing in their bedroom, he confronted her about not coming home that day and then "flipped out" and started yelling when she told him she had had a nice evening. Defendant said he "might've pushed her," and she then hit him in the head with a lamp. He believed Debra thought he "was gonna go after her."
When Debra hit him, "that was it," and he took his "black jack" out of a drawer by the bed and "whacked her in the head" several times. "Unbelievabl[y]," Debra was still conscious after he finished hitting her. He walked across the hallway to another bedroom and retrieved a knife he used for filleting fish. When he returned, Debra began to beg for her life, telling him that she really loved him and that she was sorry for everything she had done. Defendant used the knife on her but claimed he could not remember exactly what he did.
When he finished, defendant put the knife back in its sheath and returned it to the room across the hall. He shut the door to the master bedroom, made no attempt to summon any help, and never went back into the room. He knew, "[w]ithout a doubt," that he had killed her.
A short time later defendant cut his neck, wanting to kill himself, thinking it would be "easier than going to jail." He put his t-shirt in the garbage because it was covered with his blood. The following afternoon, he fell over a family dog, broke his ankle, and was unable to get up.
When asked to explain his actions, defendant responded: "Well, I shouldn't of done what I did, but you know, how much can you take? [Thirty-five] years of marriage and to get hit with a fuckin' lamp like it was my fault and being, being a rotten bitch. Sorry for saying that to you." He acknowledged he was supposed to move out in a few days, but he could not let things go that night because Debra "kept pushing my buttons, you know, needling me."
Dr. Jennifer Swartz of the Bergen County Medical Examiner's Office performed the autopsy. According to her, Debra was five feet, four inches tall and had weighed 202 pounds. She had first been struck in the head at least eight times, resulting in fifteen to sixteen non lethal blunt force injuries. Thereafter, she had been stabbed with a knife twenty-six times. These sharp force injuries, which were sustained when she was alive, were predominantly to her face, neck and upper torso and included one which perforated her left cheek, cut her tongue and exited through her right cheek. Another wound, six inches wide across her throat, severed her left jugular vein and left carotid artery and also cut into her trachea and the left side of her cervical spine. This wound caused Debra to bleed to death. Dr. Schwartz confirmed there were defensive wounds to Debra's hands, indicating that she had tried to ward off the attack.
Defendant elected not to testify but presented two witnesses: a character witness and the HOG friend with whom Debra had the affair. The trial judge barred defense counsel from questioning the HOG friend about his affair with Debra. The HOG friend testified he met Debra in early February 2010 before she joined the HOG. From then until her death, they communicated by email at least every other day, perhaps daily. He discussed the emails with neither of Debra's other HOG friends. After Debra bought her motorcycle, they took rides together, without the others, two or three times. He was not aware of Debra taking such rides just her and one other with either of her other HOG friends. He was not aware of any relationship between Debra and either of her other two HOG friends outside of the HOG club.
Defendant argues the following points
THE TRIAL COURT ERRED TO DEFENDANT'S GREAT PREJUDICE, AND VIOLATED HIS CONSTITUTIONAL RIGHT TO PRESENT HIS DEFENSE, IN EXCLUDING EVIDENCE OF THE VICTIM'S EXTRAMARITAL AFFAIR, NECESSITATING REVERSAL. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. (1947), ART. 1, PAR. 9.
THE TRIAL COURT'S DENIAL OF SEQUESTRATION AS TO CASE DETECTIVE LOVE, THUS PERMITTING A KEY STATE'S WITNESS TO BE PRESENT FOR THE TESTIMONY OF VIRTUALLY EVERY STATE'S WITNESS BEFORE HER OWN TESTIMONY, CONSTITUTED AN ABUSE OF DISCRETION, NECESSITATING REVERSAL.
THE STATE ERRED TO THE DEFENDANT'S GREAT PREJUDICE IN REFUSING TO ANSWER REQUESTS FOR GRAND JURORS FOR THE LAW AS TO MANSLAUGHTER, AND IN DISPARAGING BOTH THE QUESTION AND THE DEFENSE, NECESSITATING DISMISSAL OF THE MURDER CHARGE. N.J. CONST. (1947) ART[.] 1, PAR. 8.
THE STATE'S SUMMATION WAS IMPROPER AND PREJUDICIAL, NECESSITATING REVERSAL. U.S. CONST., AMEND. XIV; N.J. CONST. (1947), ART. 1, PARS. 9, 10 (PARTIALLY RAISED BELOW).
THE TRIAL COURT IMPOSED AN EXCESSIVE SENTENCE, NECESSITATING REDUCTION.
We begin our discussion with defendant's third point challenging the grand jury proceedings and the murder indictment. During the grand jury proceedings, the prosecutor presented the testimony of one witness, Detective Cecilia Love, the Bergen County Prosecutor's lead detective on the case. Detective Love summarized the investigation from police reports, witness statements, and the autopsy report, and she read most of defendant's recorded statement. When Detective Love concluded, the prosecutor defined for the grand jurors the elements of murder and possession of a weapon for an unlawful purpose.
After the jurors began deliberating a juror raised a question, and the following colloquy ensued
[Juror]: My question is that if there's definitely a crime here, but the nature of the crime of murder versus manslaughter [sic]. Right now we're looking at the charge of murder and if there is not enough evidence for the murder charge, but there is for manslaughter, can the [d]efendant get acquitted because it wasn't murder, but maybe manslaughter.
. . . .
[Prosecutor]: I'm going to sort of answer your question. You were charged and asked to consider a charge of murder and I read to you the definition of murder and the definition of the words that are used in the charge of murder.
You were not given the law on manslaughter. So in terms of your deliberations, at this point, as a deliberative body, you really don't know what manslaughter is under the law.
[Prosecutor]: Okay? You might . . . have some ideas about what that is, but for our purposes today I have not asked you to consider that. If you as a group would like the charge on that, I can do that. I can give you that charge, but you'll have to determine as a group whether or not you want to hear that charge.
But I think your question, when you say if there's not enough evidence, if you find that there is insufficient evidence to find probable cause that Peter Shanley committed murder, which is what you are charged with, that's your standard as the Grand Jury. If you find that there's insufficient evidence and there's no probable cause to believe that he committed murder, then you would vote a no bill on murder.
But I . . . glean from your question that you're talking about proof, not for today's purposes, but . . . at trial down the road well, you don't use the word "down the road[,"] but you say will he get off.
If you're looking at what may or may not happen after this process, it's really irrelevant for your consideration. So when I said I'm sort of going to answer your question, I'm really sort of going to remind you of the Grand Jury's role, which is [to] determine whether or not there's sufficient evidence at this juncture to charge this person formally by way of indictment with the crime of murder.
If there are . . . subsequent proceedings, what occurs in those proceedings or how that happens really isn't . . . relevant to your deliberation. Your deliberation is whether or not there's probable cause to proceed at this juncture on these charges.
Now, there was also some discussion of Mr. Shanley's state of mind. In the law, . . . the law charges with certain states of mind, in this instance purposely and knowingly.
You can glean from conduct whether someone acts purposefully or knowingly and that's essentially or very often how juries determine what someone's state of mind is.
There was a comment in deliberation regarding Mr. Shanley's failure to recall certain things or say he fails to recall certain things in his interview. Any potential defenses that might exist because of his state of mind, are what we call affirmative defenses, those are incumbent upon the [d]efendant to come forward with after the charge. They are not necessarily relevant at this point.
Is that helpful? Another question?
[Juror]: Number 17. Right now, I think the question is, is do we truly believe he intended to murder her? Is could we possibly hear the definition of manslaughter?
[Prosecutor]: That's I will charge you on that if you as a body determine that you want to hear that . . . .
[Prosecutor]: Okay? That's if you . . . as a Grand Jury determine that you want to hear . . . another charge, then we'll charge you on the law with it. If that's a decision that you as a group make.
The grand jurors asked no more questions; they charged defendant in the three-count indictment with murder and two weapons offenses.
Defendant contends the prosecutor improperly withheld an instruction on voluntary manslaughter after the grand juror requested it. Defendant argues "there is no legal authority in our State that a request for an instruction may be denied unless it is the result of an agreement by the grand jury as a body." He also argues the prosecutor's refusal to answer the grand juror's question concerning manslaughter interfered with the grand jury's decision-making function. Lastly, defendant argues the prosecutor's statements concerning the sufficiency of the evidence "down the road," subsequent proceedings not being relevant to grand jury deliberations, and defendant's obligation to come forward with evidence concerning his state of mind, were improper and prejudicial attempts to influence the proceedings. Defendant's arguments misapprehend both the prosecutor's charging function and the scope of a court's review of that function. "[P]rosecutor[s] retain broad discretion as to whom to prosecute and what charge to bring." State v. Medina, 349 N.J. Super. 108, 127 (App. Div.) (citing State v. T.C., 347 N.J. Super. 219, 228 (App. Div. 2002)), certif. denied, 174 N.J.193 (2002).
"This broad discretion rests largely on the recognition that the decision to prosecute is particularly ill-suited to judicial review." Wayte v. United States, 470 U.S. 598, 607, 105 S. Ct. 1524, 1530, 84 L. Ed. 2d 547, 556 (1985). "Such factors as the strength of the case," the deterrent value of the prosecution, the prosecutor's law enforcement priorities and allocation of resources, "and the case's relationship to the [State's] overall enforcement plan are not readily susceptible to the kind of analysis the courts are competent to undertake." Ibid. Moreover, judicial supervision exacts systemic costs. "Examinat[ion] [of] the basis of a prosecution delays the criminal proceeding, threatens to chill law enforcement by subjecting the prosecutor's motives and decisionmaking to outside inquiry, and may undermine" legitimate prosecutorial goals and objectives. Ibid. All of these concerns are substantial and make the courts particularly hesitant to examine the decision to prosecute and the appropriate charge to file.
[Id. at 128.]
For these reasons, if "the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion." Id. at 127-28 (quoting Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S. Ct. 663, 668, 54 L. Ed. 2d 604, 611 (1978)).
Here, the prosecutor had probable cause to believe defendant committed murder. The prosecutor acted well within her discretion not only in presenting the murder charge, but also in declining to present a manslaughter charge. When the grand juror inquired about manslaughter, the prosecutor responded, appropriately, "If you find that there's insufficient evidence and there's no probable cause to believe that he committed murder, then you would vote a no bill on murder." We find no basis to interfere with the broad discretion the prosecutor exercised in presenting only the murder charge, rather than murder and manslaughter charges.
We also find unavailing defendant's contention the prosecutor attempted to improperly influence the grand jury. Defendant has constructed that argument mostly by isolating and emphasizing portions of statements the prosecutor made. Considered in the entire context of the colloquy between the juror and the prosecutor, there is nothing inappropriate about the prosecutor's remarks, and there is no basis to dismiss the murder indictment. The trial judge properly exercised its discretion in declining to do so. State v. Hogan, 144 N.J. 216, 229 (1996) ("[T]the decision whether to dismiss an indictment lies within the discretion of the trial court, State v. McCrary, 97 N.J. 132, 144 (1984), and that exercise of discretionary authority ordinarily will not be disturbed on appeal unless it has been clearly abused. E.g., State v. Weleck, 10 N.J. 355, 364 (1952).").
We next address defendant's arguments in his first, second, and fourth points, in which he claims he was denied a fair trial.
Before the trial began, the prosecutor requested the judge exempt the lead detective, Detective Love, from his general sequestration order so she could assist the prosecutor with the items in evidence and with the overall presentation of the case. The prosecutor represented there was no one else as familiar with the case as the detective. The prosecutor agreed the detective should not be present during the testimony of Detective Frazer, who interviewed defendant and recorded his statement. Thereafter, the prosecutor enlisted the assistance of a different detective, who had no involvement in the investigation. The judge ruled that both detectives would be permitted to assist the prosecutor.
Defendant argues the judge erred by refusing to sequester Detective Love because: (1) she "was both involved in every facet of the investigation, and served as a key and essentially final witness"; (2) she "testified as a crucial fact witness for the State, after hearing the testimony of virtually every State's witness"; (3) she was not essential to the presentation of the State's case, as evidenced by the presence and assistance of the different detective; (4) her testimony was highly combative; and (5) her presence at the State's table enhanced her credibility. We reject these arguments.
A trial judge is authorized by N.J.R.E. 615 to sequester witnesses. The purpose of sequestration is to ensure that prospective witnesses do not tailor their testimony in response to the testimony of another witness. State v. Williams, 404 N.J. Super. 147, 159-60 (App. Div. 2008) (citing State v. Di Modica, 40 N.J. 404, 413 (1963)), certif. denied, 201 N.J. 440 (2010). We review a trial judge's decision concerning sequestration under an abuse-of-discretion standard. Id. at 159; State v. Miller, 299 N.J. Super. 387, 399 (App. Div.), certif. denied, 151 N.J. 464 (1997).
Detective Love was the lead detective. As such, she was well acquainted with the entire investigation before the trial began, and thus of invaluable assistance to the prosecutor and unlikely to be influenced by testimony of others. Significantly, the detective had testified before the grand jury and during pretrial motions, so there was little if any likelihood she would tailor her testimony to other witnesses or testify differently than she had on previous occasions, without being impeached. Considering these circumstances, we discern no abuse of discretion in the trial judge's decision to exempt Detective Love from the general sequestration order.
Moreover, though defense counsel cross-examined Detective Love for more than three full days a plausible explanation for defendant's perception the detective was "combative" defendant has failed to point out on appeal so much as one inconsistency between the detective's pre-trial and trial testimony. Considering the absence of any such demonstrated inconsistency, the strength of the State's evidence, and defendant's confessions, we fail to understand how the trial judge's exemption of Detective Love from sequestration, if error, could have been anything but harmless. R. 2:10-2.
We turn to defendant's contention the trial court's exclusion of evidence of his wife's affair violated his right to present a defense. Defendant was unaware of the emails and had not spoken to his wife's HOG friend, facts defendant does not dispute. He argues, however, that because "his mental state concerning the victim counted for literally everything, the jury would not receive all . . . relevant evidence, and thus could not reach an accurate understanding of the case, [absent] the knowledge that the victim was conducting an adulterous affair and rubbing his nose in it." Defendant suggests that without the emails, he could have been perceived as "a controlling, highly suspicious husband, who merely sought to prevent his wife from enjoying a new hobby," but with the evidence the jury would be more receptive to the argument he "was genuinely impassioned at the time of the homicide, and that his actions thus satisfied the criteria for passion-provocation manslaughter."
"[A] trial court's evidentiary rulings are 'entitled to deference absent a showing of an abuse of discretion, i.e., there has been a clear error of judgment.'" State v. Brown, 170 N.J. 138, 147 (2001) (quoting State v. Marrero, 148 N.J. 469, 484 (1997)). As such, "an appellate court should not substitute its own judgment for that of the trial court, unless 'the trial court's ruling was so wide of the mark that a manifest denial of justice resulted.'" Ibid. (quoting Marrero, supra, 148 N.J. at 484). The record here does not demonstrate the judge's exclusion of the emails was a ruling so wide of the mark that a manifest denial of justice resulted.
First, defendant's assertions his wife was "rubbing his nose" in the affair is entirely unsupported by any evidence. To the contrary, in a hearing conducted outside of the jury's presence, defendant's younger son testified he never informed defendant of the emails after discovering them. Nothing else in the record suggests defendant's wife ever admitted the affair to her husband.
Second, defendant's underlying supposition the jury did not know his wife was having an affair is tenuous at best. In his opening statement, defense counsel, when discussing the HOG club, told the jury, "one of the friends became a lot closer than simply a friend. Became her lover. And that in many ways will define the way that she would conduct the rest of her life." During defense counsel's cross-examination of several witnesses, he insinuated defendant's wife was having an affair. Moreover, the jury could have inferred from Debra's precipitous yet drastic lifestyle change, her neglect of her family, and the amount of time she was spending with her HOG friends, that she was having an affair with one of them.
The trial judge excluded the emails and questioning of Debra's lover about the affair as irrelevant. "'Relevant evidence' means evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. Here, the excluded evidence could not have affected defendant's state of mind, because defendant was unaware of it. Defendant's proffer of relevancy is based on assertions unsupported by the evidence, including speculation concerning the jury's perception of his wife's character and his character. Such unsupported assertions and speculation hardly support the proposition the trial judge's ruling "was so wide of the mark that a manifest denial of justice resulted." Brown, supra, 170 N.J. at 147.
Defendant next accuses the prosecutor of misconduct in her summation. Defendant argues the prosecutor misrepresented the record by arguing his wife was not engaged in an extramarital affair, and by misstating what had taken place during defendant's initial altercation with his wife. Defendant also argues the prosecutor misrepresented the law by telling the jury the homicide was neither justified nor excused. Defendant lastly argues the prosecutor denigrated the defense by accusing defense counsel of vilifying the victim. Defendant's arguments are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We add only the following comments.
To determine whether prosecutorial misconduct in summation warrants reversal, we must assess whether the "misconduct was so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999). In making this assessment, we must "consider the tenor of the trial and the responsiveness of counsel and the court to the improprieties when they occurred." State v. Timmendequas, 161 N.J. 515, 575 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). The prosecution's duty to achieve justice does not forbid a prosecutor from presenting the State's case in a "vigorous and forceful" manner. State v. Ramseur, 106 N.J. 123, 320 (1987) (quoting State v. Bucanis, 26 N.J. 45, 56, cert. denied, 357 U.S. 910, 78 S. Ct. 1157, 2 L. Ed. 2d 1160 (1958)). The absence of a timely defense objection to a prosecutor's remarks in summation generally signifies that the remarks are not prejudicial. Id. at 323.
Here, defendant did not object to most of the prosecutor's remarks he now complains about. More significantly, consideration of the prosecutor's summation in the context of the trial, the summation in its entirety, and the context of the remarks defendant has singled out, demonstrates the prosecutor was commenting fairly on the evidence, defendant's summation, and the law. The prosecutor's comments did not constitute misconduct, let alone misconduct so egregious in the context of the trial as a whole as to deprive the defendant of a fair trial. State v. Wakefield, 190 N.J. 397, 435-38 (2007), cert. denied, 552 U.S. 146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008).
Lastly, we address defendant's fifth point challenging his sentence as excessive. At sentencing, the judge found as aggravating factors the nature and circumstances of the offense, N.J.S.A. 2C:44-1(a)(1), and the need for deterrence, N.J.S.A. 2C:44-1(a)(9). The judge found as the sole mitigating factor defendant's lack of a prior record, N.J.S.A. 2C:44-1(b)(7). The judge rejected several other mitigating factors, including defendant had acted under strong provocation, N.J.S.A. 2C:44-1(b)(3), and defendant's conduct was the result of circumstances unlikely to recur, N.J.S.A. 2C:44-1(b)(8). The judge determined the two aggravating factors, both of which he heavily weighted, substantially outweighed the single mitigating factor, to which he accorded only "some" weight.
Defendant argues the judge erred in finding and according great weight to aggravating factor one. While conceding that "the wounds inflicted were of a number and severity well beyond that necessary to kill the victim," defendant nonetheless insists this factor was either inapplicable or deserving of little weight because those wounds were inflicted: (1) during a brief "struggle"; (2) while defendant was in an "unprecedented" state of rage; and (3) without any intent to inflict excessive suffering. Defendant further argues the court gave too much weight to the need for deterrence, and erroneously failed to find additional mitigating factors.
When reviewing a criminal defendant's sentence, an appellate court must determine: whether the findings of fact regarding aggravating and mitigating factors were based on competent and reasonably credible evidence in the record; whether the court applied the correct sentencing guidelines enunciated in the Code; and whether the application of the factors to the law constituted such clear error of judgment as to shock the judicial conscience. State v. Fuentes, 217 N.J. 57, 70 (2014); State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Jarbath, 114 N.J. 394, 401 (1989). In performing its review, an appellate court must avoid substituting its judgment for the judgment of the trial court. State v. Cassady, 198 N.J. 165, 180 (2009); O'Donnell, supra, 117 N.J. at 215.Here, the trial judge's determination of aggravating and mitigating factors was supported by the record, and the judge applied appropriate sentencing guidelines. Defendant committed a particularly heinous offense, first bludgeoning his wife, then repeatedly stabbing her and cutting her throat after she begged for her life. The judge's determination of aggravating circumstances was fully supported by the record, and under the circumstances, his rejection of all but one mitigating factor was warranted. Under the circumstances, the life sentence does not shock the judicial conscience.
1 The emails, exchanged by Debra and one of her HOG friends, evidence they were involved in a sexual relationship. Over defendant's objection, the trial judge excluded evidence of the content of the emails.