STATE OF NEW JERSEY v. TIANLE LI
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1318-13T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TIANLE LI,
Defendant-Appellant.
______________________________
Argued January 23, 2018 – Decided April 24, 2018
Before Judges Fisher, Fasciale and Moynihan.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Indictment No.
11-05-0690.
Alan Dexter Bowman argued the cause for
appellant.
Nancy A. Hulett, Assistant Prosecutor, argued
the cause for respondent (Andrew C. Carey,
Middlesex County Prosecutor, attorney; Nancy
A. Hulett, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant Tianle Li appeals from her conviction after jury
trial for first-degree murder,
N.J.S.A. 2C:11-3(a)(1), (2), and
third-degree hindering apprehension,
N.J.S.A. 2C:29-3(b)(4), in
connection with the thallium poisoning of her husband, Xiaoye
Wang. She argues in her merits brief:
POINT I
THE COURT ERRED IN DENYING APPELLANT HER RIGHT
TO RAISE INTERVENING CAUSE AS A CHALLENGE TO
THE STATE'S PROOFS OF PURPOSEFUL MURDER
THEREBY PLACING THE BURDEN ON THE STATE TO
DISPROVE THE DEFENSE BEYOND A REASONABLE
DOUBT.
POINT II
THE COURT ERRED IN DENYING APPELLANT'S MOTION
TO SUPPRESS EVIDENCE SEIZED FROM THE 2006
TOYOTA RAV-4.
POINT III
THE TRIAL COURT ERRED IN DENYING APPELLANT'S
REQUEST FOR A MISTRIAL.
POINT IV
ADMISSION OF THE ALLEGED ATTACK ON APPELLANT'S
MOTHER NOT CHARGED IN THE INDICTMENT SUBVERTED
THE FAIRNESS OF THE TRIAL.
POINT V
THE INSUFFICIENT TRANSLATION OF MIRANDA[1]
WARNINGS AND THE ATTENDANT CONDITIONS REQUIRED
THAT THE ENTIRE STATEMENT BE SUPPRESSED.
POINT VI
THE COURT ERRED IN PERMITTING STEFANELLI TO
TESTIFY.
1
Miranda v. Arizona,
384 U.S. 436 (1966).
2 A-1318-13T4
In her supplemental pro se brief she adds:
POINT I
THE COURT ERRED IN PERMITTING THE STATE TO
ADMIT HIGHLY INFLAMMATORY AUTOPSY
PHOTOGRAPHS.
POINT II
THE PROSECUTOR DELIBERATELY VIOLATED N.J.R.E.
104(c) AND THE TRIAL JUDGE ERRED IN DENYING
DEFENSE COUNSEL'S REQUESTS FOR A MISTRIAL.
POINT III
THE TRIAL JUDGE ERRED IN BARRING DEFENSE
WITNESS CHAPLAIN WHITE [FROM] TESTIFY[ING] TO
THE SUBMISSION OF APPELLANT'S REQUEST FOR A
PRAYER FOR WANG.
POINT IV
THE TRIAL COURT ERRED IN DENYING THE DEFENSE
COUNSEL'S WAIVER OF A LIMITING JURY
INSTRUCTION REGARDING THE STATE'S WITNESS MING
WANG.
POINT V
APPELLANT WAS DEPRIVED OF HER RIGHT TO A
PUBLIC TRIAL.
POINT VI
THE TRIAL COURT JUDGE ERRED IN DENYING DEFENSE
COUNSEL'S REQUEST TO REVEAL THE CIVIL SUIT AND
IDENTIFY THE STATE DOCTOR WITNESSES AS
DEFENDANTS IN ESTATE OF XIAOYE WANG V.
DOCTOR'S A-Z AND PRINCETON HEALTHCARE SYSTEM.
POINT VII
THE PROSECUTOR'S FLAGRANT MISCONDUCT DENIED
APPELLANT A FAIR TRIAL.
3 A-1318-13T4
POINT VIII
THE PROSECUTOR IMPROPERLY VOUCHED FOR A
WITNESS.
POINT IX
THE TRIAL COURT ERRED IN ADMITTING A TIMELINE
CREATED BY INVESTIGATOR TEMPLE INTO TRIAL.
POINT X
THE JURY WAS MISLED BY THE UNTRANSLATED
CHINESE PRINTOUT AND THE WRONG SPECULATION OF
THE PROSECUTOR AND STATE'S WITNESSES.
POINT XI
[]THE COURT ERRED IN THE ENTIRETY OF THE
DENYING DEFENSE COUNSEL'S REQUEST TO PLAY
AUDIOTAPE OF DR. DAS'[S] STATEMENT ON JANUARY
27, 2011 TO INVESTIGATOR[S] TEMPLE AND
GROSSER.
POINT XII
THE CUMULATIVE PREJUDICIAL IMPACT OF THE
PROSECUTOR'S IMPROPER COMMENTS DENIED
APPELLANT A FAIR TRIAL.
We affirm.
I
Defendant contends the trial court erred by denying her motion
to suppress the video-recorded statement she provided to police
on January 26, 2011, the day her husband passed away. She argues
the police provided "inadequate and indecipherable" Miranda
warnings — which were given in English by Monroe Police
4 A-1318-13T4
Investigator Jeffery Temple, then translated to defendant's native
Mandarin Chinese by Monroe Police Officer Rob Wei — and that police
continued to interview her after she indicated she wanted to
terminate the interview.
Our standard of review of a trial court's decision on a motion
to suppress requires our deference to the court's factual findings
so long as they are "supported by sufficient credible evidence in
the record." State v. Gamble,
218 N.J. 412, 424 (2014). The
deferential standard applies to factual findings based on a video-
recorded statement. State v. S.S.,
229 N.J. 360, 379-81 (2017).
"By contrast, the task of appellate courts generally is limited
to reviewing issues of law. Because legal issues do not implicate
the fact-finding expertise of the trial courts, appellate courts
construe the Constitution, statutes, and common law 'de novo –
with fresh eyes . . . .'" Id. at 380 (quoting State v. Morrison,
227 N.J. 295, 308 (2016)). We need not defer to a trial judge's
interpretive conclusions "unless persuaded by their reasoning."
Morrison,
227 N.J. at 308.
"The right against self-incrimination is guaranteed by the
Fifth Amendment to the United States Constitution and this state's
common law, now embodied in statute,
N.J.S.A. 2A:84A-19, and
evidence rule, N.J.R.E. 503." S.S.,
229 N.J. at 381 (quoting
State v. Nyhammer,
197 N.J. 383, 399 (2009)). The Miranda
5 A-1318-13T4
protections provide "a meaningful opportunity to exercise" that
right by requiring the police to advise a suspect prior to a
custodial interrogation that: she has the right to remain silent;
anything she says can be used against her; she has the right to
an attorney; and an attorney will be provided if she cannot afford
one. Id. at 382; see also Miranda,
384 U.S. at 478-79. "In
resolving the adequacy of the language of a Miranda warning a
court should give precedence to substance over form." State v.
Melvin,
65 N.J. 1, 13 (1974). Police need not read the Miranda
warning from a script but must "convey the substance of the warning
along with the required information." Id. at 14.
The judge, after conducting a two-day suppression hearing
during which he heard testimony from three police witnesses and
watched the video-recording, concluded defendant understood the
warnings as given because she
appropriately answered questions in English
that were posed to her in English. There was
little delay between the questions asked and
her answers, indicating that she had a good
grasp on the English language. Defendant
asked clarifying questions when she did not
understand or needed additional information
before answering a question.
The judge also found "defendant was [a forty-one]-year[-]old, well
educated . . . chemist" who "had been in the United States for
6 A-1318-13T4
approximately thirteen years and had been educated at Washington
University and [the] University of Pennsylvania."
The judge acknowledged the Mandarin translation was not
"verbatim,"2 but found the translation satisfactorily "conveyed to
. . . [d]efendant her right to remain silent, that what she said
could be used against her in court, that she could have an attorney
present and that if she could not afford an attorney one would be
supplied."
The record amply supports the judge's findings including
those relating to his review of the video-recording that showed
defendant's reactions to the spoken-English warnings and
questions, and those regarding the translation which substantially
conveyed defendant's rights. See Melvin,
65 N.J. at 13-14
(recognizing that variation in Miranda warnings is permissible so
long as the words used convey the substance of the rights).
We also agree with the judge's rejection of defendant's
argument that the police failed to honor her invocation of rights
when she stated, "Oh I wish I can – we can do whatever you want
with me next day, not today."3
2
The judge's written decision set forth the English warnings, and
both the State's version and defendant's version of the Mandarin
translations.
3
The judge noted the quote appeared on page forty-six, line twelve
of the transcript of defendant's statement.
7 A-1318-13T4
If during an interrogation a person makes "a request, 'however
ambiguous,' to terminate questioning or to have counsel present[,]
[it] must be diligently honored." State v. Hartley,
103 N.J. 252,
263 (1986) (quoting State v. Kennedy,
97 N.J. 278, 288 (1984)).
"Any words or conduct that reasonably appear to be inconsistent
with defendant's willingness to discuss [her] case . . . are
tantamount to an invocation of the privilege against self-
incrimination." State v. Bey,
112 N.J. 123, 136 (1988). If the
police are unsure whether the suspect invoked the right, they must
"(1) terminate the interrogation or (2) ask only those questions
necessary to clarify whether the defendant intended to invoke
[her] right to silence." S.S.,
229 N.J. at 383; see also State
v. Johnson,
120 N.J. 263, 275-76, 284 (1990) (holding officers had
a duty to end the interview or "to ask only questions narrowly
directed to determining whether defendant was willing to continue"
when he said, "I can't talk about it right now," and remained
silent at various points during the interrogation).
The judge compared the circumstances here to those in Johnson,
Hartley and Bey and found defendant's comment was analogous to the
defendant's statement in Bey,
112 N.J. at 133, 134-43, where the
Court held a defendant's mid-interrogation request "to lie down
so that he could think about what happened" did not constitute an
invocation of his right to remain silent. We agree with the
8 A-1318-13T4
judge's conclusion that defendant was not seeking to end her
statement to the police. The judge acknowledged defendant "was
emotional around page [forty-six] of the [transcript of her]
statement" but that "her emotional state . . . did not indicate
to the investigating officers that [she] was asserting her right
to remain silent," citing State v. Diaz-Bridges,
208 N.J. 544,
568-69 (2012) (holding a defendant's emotional display, including
"weeping or moaning" is not a basis to conclude "he or she
intend[ed] to invoke the right to silence"). In fact, she stopped
crying as she continued to answer questions without protest. As
the judge observed, "the record shows that [d]efendant continued
to speak to police and remained cooperative until page [ninety-
nine,] line [six] when the police accused her of poisoning her
husband," and she responded, "Oh, my God. I don't want to talk
anymore."
We determine the balance of defendant's arguments that she
did not knowingly and intelligently waive her rights before giving
her statement, including her contention that we "must be mindful
that [her] husband was expiring as she wrestled with [the police
officers] for her release," to be without sufficient merit to
warrant discussion in this opinion. R. 2:11-3(e)(2). As the
judge said:
9 A-1318-13T4
Evidence suggests that while her husband was
in the hospital [d]efendant was making plans
to leave the country with her young son.
Additionally, [she] remained mostly calm,
except for a few emotional moments, and
conversant throughout the statement.
Defendant was not under the influence of
medication. At no point was [d]efendant's
will overborne as she did not confess.[4]
The judge's careful consideration of the totality of the
circumstances led to conclusions that are supported by sufficient
credible evidence in the record; the motion to suppress defendant's
statement was properly denied.
II
Defendant avers the trial court erred by denying her motion
to suppress evidence seized, pursuant to a search warrant, from
her motor vehicle and a purse located therein. She reprises the
argument made to the trial court that "past trivial domestic
disputes" and "the hypothetical existence of insurance policies"
did not establish probable cause to believe that evidence of the
homicide would be found in the Toyota RAV4 registered in her name.
The Fourth Amendment of the United States Constitution and
Article I, Paragraph 7 of the New Jersey Constitution prohibit the
issuance of a search warrant "except upon probable cause, supported
by oath or affirmation, and particularly describing the place to
4
Defendant admits in her merits brief that the interview was
"exculpatory."
10 A-1318-13T4
be searched and the papers and things to be seized." State v.
Marshall,
199 N.J. 602, 610 (2009) (quoting N.J. Const. art. I, ¶
7). A warrant should issue only if the totality of the
circumstances establish "probable cause to believe that a crime
has been committed, or is being committed, at a specific location
or that evidence of a crime is at the place sought to be searched."
Ibid. (quoting State v. Sullivan,
169 N.J. 204, 210 (2001)).
"Probable cause exists where the facts and circumstances within .
. . [the officers'] knowledge and of which they had reasonably
trustworthy information [are] sufficient in themselves to warrant
a [person] of reasonable caution in the belief that an offense has
been or is being committed." State v. O'Neal,
190 N.J. 601, 612
(2007) (quoting State v. Moore,
181 N.J. 40, 46 (2004) (alterations
in original)). The court can consider only the facts contained
in the supporting affidavit and any sworn statements. Marshall,
199 N.J. at 611.
A search conducted pursuant to a warrant is presumed valid;
defendant bears the burden of establishing that the warrant was
not supported by probable cause or was "otherwise unreasonable."
Id. at 612 (quoting State v. Jones,
179 N.J. 377, 388 (2004)). We
"accord substantial deference to a trial court's determination
that there was probable cause to issue a warrant." Ibid.
11 A-1318-13T4
The factual assertions in the warrant application established
probable cause that evidence of thallium poisoning – the cause of
Wang's death – and other evidence related to the homicide would
be found in the vehicle. Wang was admitted to the hospital on
January 14, 2011. His condition plummeted and he died twelve days
later. Tests showed levels of thallium in his body so high that
the medical director of the New Jersey Poison Information and
Education System at the University of Medicine and Dentistry of
New Jersey opined the amount of thallium detected in Wang's urine
was not from accidental poisoning.
Other evidence presented to the issuing judge included: the
police response to seventeen domestic calls at the marital home
between April 2009 and December 2010, during two of which defendant
and Wang separately leveled accusations – acknowledged by
defendant in her statement to police – of poisoning; defendant's
employment as a research chemist at Bristol-Myers Squibb; the
rarity of thallium poisoning, thallium's inaccessibility to the
general public, and the sole-central location of the antidote for
thallium poisoning in Tennessee; observation by hospital personnel
of defendant feeding homemade soup and applying lip balm to Wang;
Wang's statement to hospital personnel on January 21, 2011, that
he believed defendant poisoned him; defendant's statement on
January 21 that she knew Wang had been poisoned with thallium –
12 A-1318-13T4
knowledge she had initially denied – despite the unavailability
of test results that confirmed thallium poisoning until January
25; defendant's use of the vehicle – registered in her name – for
travel to and from work, and to and from the hospital.
We agree with the motion judge that these facts established
probable cause to justify the issuance of the warrant for the RAV4
which provided the probable means to transport thallium from
defendant's workplace to her home or the hospital. We determine
defendant's argument that the search of defendant's purse, found
in the vehicle during the execution of the search warrant, was
improper to be without sufficient merit to warrant discussion. R.
2:11-3(e)(2). A warrant to search a vehicle
would support a search of every part of the
vehicle that might contain the object of the
search. When a legitimate search is under
way, and when its purpose and its limits have
been precisely defined, nice distinctions
between . . . glove compartments, upholstered
seats, trunks, and wrapped packages, in the
case of a vehicle, must give way to the
interest in the prompt and efficient
completion of the task at hand.
[State v. Reldan,
100 N.J. 187, 195 (1985)
(quoting United States v. Ross,
456 U.S. 798,
821-22 (1982)); see State v. Jackson, 268 N.J.
Super. 194, 208-09 (Law Div. 1993)
(establishing that a search warrant which
authorizes the search of a specific area also
"permits the search and seizure of containers
found therein which might reasonably contain
the evidence sought by the warrant").]
13 A-1318-13T4
The motion to suppress evidence was properly denied.
III
Turning to the trial errors defendant contends require the
reversal of her conviction, we carefully reviewed this record and
conclude our intervention is unwarranted.
A
During direct examination, Monroe Police Lieutenant Jason
Grosser, while recounting the calls for service to the home of the
victim and defendant, was asked if the computer-aided dispatch
(CAD) report to which he had been referring was dated August 31.
The following colloquy ensued:
[GROSSER]: Yeah. We found . . . two other
reports for – I believe was August 31st of
2010. And the reason why they weren't listed
with this is because they didn't happen[] at
this particular address. They happened at
various addresses around that area. And the
reports were labeled as welfare checks but
those again, those were the same day, first
thing in the morning.
[ASSISTANT PROSECUTOR]: And what member of the
household did it involve?
[GROSSER]: That involved the defendant's
mother who alleged that she was attacked that
morning by her daughter.
14 A-1318-13T4
The assistant prosecutor elicited defendant's mother's name from
the lieutenant. No other questions were asked by the assistant
prosecutor about that call.5
Defendant argues the testimony regarding defendant's mother
was impermissible under Evidence Rule 404(b);6 the bad acts
evidence regarding defendant's alleged attack on her mother was
"highly prejudicial and devoid of probative value," which denied
her a fair trial by portraying her as a "deranged and volatile
person capable of assaulting her own mother."
Defense counsel made no objection to the comment.7 Where the
defendant raises a 404(b) argument for the first time on appeal,
5
Defense counsel asked Grosser some questions about that call,
but only to establish that it had no connection to Wang and the
allegations against defendant.
6 N.J.R.E. 404(b) provides:
[E]vidence of other crimes, wrongs, or acts
is not admissible to prove the disposition of
a person in order to show that such person
acted in conformity therewith. Such evidence
may be admitted for other purposes, such as
proof of motive, opportunity, intent,
preparation, plan, knowledge, identity or
absence of mistake or accident when such
matters are relevant to a material issue in
dispute.
7
Defense counsel, prior to cross-examining Grosser, told the
judge, "I didn't object at the time, because it basically was part
of the CAD log sheet and the history of the responses to that
address by the [p]olice, so I didn't object."
15 A-1318-13T4
we consider it under the plain error standard and will order a new
trial only if the challenged evidence was "clearly capable of
producing an unjust result." State v. Macon,
57 N.J. 325, 336-37
(1971) (quoting R. 2:10-2).
Grosser's remark was not solicited by the assistant
prosecutor. It was a fleeting, unresponsive statement, unrelated
to his other testimony about domestic violence calls involving
defendant and Wang. Grosser did not provide any details about the
allegation, and no evidence was presented that the allegation was
proven. The assistant prosecutor neither repeated nor referred
to that testimony at any time during the trial. These two lines
of testimony, juxtaposed against the overwhelming evidence
presented over twenty-one days of trial testimony, were not clearly
capable of producing an unjust result.
B
Defendant argues the trial judge erred by allowing Christina
Stefanelli's trial testimony about defendant's admissions – made
while they were incarcerated in the same cell at the Middlesex
County jail – detailing how and why she poisoned Wang. Defendant
points to information Stefanelli provided to Investigator Temple
– prior to being housed with defendant – about another murder, and
also claims that Stefanelli had Xanax in the jail to ensure she
would be housed with defendant in protective custody, as evidence
16 A-1318-13T4
that Temple arranged for Stefanelli to elicit incriminating
statements from defendant in contravention of her right to counsel.
The Sixth Amendment guarantees the immediate right to counsel
when the State initiates formal criminal proceedings against a
suspect. State v. Leopardi,
305 N.J. Super. 70, 76 (App. Div.
1997). Once the right attaches, the State may not dilute,
circumvent or interfere with that right by directly questioning
the suspect, or by eliciting incriminating information through a
confidential informant. See, e.g., id. at 77-80.
A defendant seeking to suppress a statement made to someone
other than law enforcement on the ground that the statement was
elicited on behalf of the State "must demonstrate that the police
and their informant took some action, beyond merely listening,
that was designed deliberately to elicit incriminating remarks."
Id. at 79 (quoting Kuhlmann v. Wilson,
477 U.S. 436, 459 (1986)).
In deciding whether a defendant has met this burden, the trial
court must consider the circumstances surrounding the statement
including: the existence of any agreement between the State and
the informant; whether the government was involved in placing the
informant with the defendant; and whether the State made any
promise to the informant for obtaining information. Id. at 79-
80.
17 A-1318-13T4
Again, in reviewing a trial court's decision on a motion to
suppress evidence, we do not "weigh the evidence, assess the
credibility of witnesses, or make conclusions about the evidence."
State v. Barone,
147 N.J. 599, 615 (1997). Rather, we consider
whether the trial court's findings were supported by "sufficient
credible evidence present in the record." Ibid. (quoting State
v. Johnson,
42 N.J. 146, 162 (1964)).
Under that lens we conclude the trial judge's rejection of
the now-repeated argument that defendant was denied her right to
counsel was sufficiently supported by the record. The judge –
after hearing testimony from Stefanelli, Temple and Lieutenant
Robert Grover of the Middlesex County Department of Corrections
at a hearing on a motion to suppress defendant's statement to
Stefanelli – credited Temple's and Stefanelli's testimony.
Despite defendant's present contention that the "circumstances
under which the State procured Stefanelli's testimony are
malodorous," the judge fully explained in a thoughtful and thorough
oral opinion that Stefanelli received no benefit from the State
in return for her cooperation and found no evidence that the State
arranged to place Stefanelli in defendant's cell or that Stefanelli
was acting at the State's behest when she spoke with defendant.
18 A-1318-13T4
C
Defendant's argument that the trial court erred in denying
her request for a mistrial is based on one question the assistant
prosecutor asked of a hospital chaplain who was called by the
defense and testified that he had prayed with defendant prior to
and after Wang's death. The assistant prosecutor asked, "Chaplain,
are you . . . aware that chaplains also offer prayer to people who
are in jail, accused of a crime?"
The trial judge sustained defense counsel's immediate
objection; counsel did not request a limiting instruction. The
judge denied the subsequent motion for a mistrial in which
defendant argued that the mention of "jail" in the assistant
prosecutor's question was "highly inappropriate" and "inherent[ly]
prejudicial," ruling that the question was not "unduly harmful,
or prejudicial" in light of prior evidence regarding defendant's
confinement.
Defendant now argues, for the first time, that the question
was an "impermissible attack on [her] character." "A mistrial is
an extraordinary remedy" that should be granted "[o]nly when there
has been an obvious failure of justice." State v. Mance,
300 N.J.
Super. 37, 57 (App. Div. 1997). "Whether manifest necessity
mandates the grant of a mistrial depends on the specific facts of
the case and the sound discretion of the court." State v. Allah,
19 A-1318-13T4
170 N.J. 269, 280 (2002). When "the court has an appropriate
alternative course of action" it should deny the request. Id. at
281. The decision to grant or deny a mistrial is within the trial
court's "sound discretion" and "will not be reversed absent a
clear showing of prejudice to defendant." State v. Provoid,
110 N.J. Super. 547, 558 (App. Div. 1970).
We find no such showing. The question went unanswered after
the judge sustained defense counsel's objection. The judge charged
the jury at the trial's conclusion:
I have sustained an objection to some
questions asked by counsel which may have
contained statements of facts. The mere fact
that an attorney asked a question and inserts
facts or comments or opinions in that question
in no way proves the existence of those facts.
You will only consider such facts which in
your judgment have been proven by the
testimony of witnesses or from exhibits
admitted into evidence by the [c]ourt.
. . . .
As I instructed you when we started the
case I explained to you that you are the judges
of the facts, and as judges of the facts you
are to determine the credibility of the
various witnesses as well as the weight to be
attached to their testimony. You, you alone,
are the sole and exclusive judges of the
evidence, of the credibility of the witnesses
and the weight to be attached to the testimony
of each witness.
Regardless of what counsel said or I may
have said recalling the evidence in this case,
it is your recollection of the evidence that
20 A-1318-13T4
should guide you as judges of the facts.
Arguments, statements, remarks, the openings
and summations of counsel are not evidence and
must not be treated as evidence. Although the
attorneys may point out what they think
important in this case, you must rely solely
upon your understanding and recollection of
the evidence that was admitted during the
trial.
Whether or not the defendant has been
proven guilty beyond a reasonable doubt is for
you to determine based on all the evidence
presented during the trial. Any comments by
counsel are not controlling. It is your sworn
duty to arrive at a just conclusion after
considering all the evidence which was
presented during the course of the trial.
The jury is presumed to have followed those instructions. State
v. Manley,
54 N.J. 259, 271 (1969).
In her merits brief, defendant conflated the assistant
prosecutor's statement in summation with his argument regarding
the court's denial of a mistrial — although a mistrial was never
requested based on that comment. The argument lacks merit. No
objection was lodged to the statement:
And poor Mr. Wang[8] endured a day-and-a-half
of cross examination. To what end, members
of the jury? To what end? Are we really
questioning that there was a threat? We know
there was a threat. Why? Because ten months
later Xiaoye is reporting to the police that
he thinks his wife is poisoning him. Of course
she was threatening him. And she probably
started when her in-laws were in town. And
we know she's thinking about poison because
8
The witness, Ming Wang, was the victim's father.
21 A-1318-13T4
she's alleging the victim did it to her on
[December 13]. Of course there were prior
threats. Ming Wang testified, and I submit
to you that his testimony was credible.
The comment, contrary to defendant's argument was not an
attack on defense counsel. The assistant prosecutor merely urged
the jury to find that, after a day and a half of cross-examination,
counsel was unable to discredit Ming Wang's testimony that
defendant and Wang – his son – fought often, and that defendant
threatened to poison Wang if he tried to divorce her. The
unchallenged comment was not "clearly capable of producing an
unjust result," Macon,
57 N.J. at 337-38 (quoting R. 2:10-2), and
did not warrant a mistrial. Nor was it so "clearly and
unmistakably improper" that it "substantially prejudiced
defendant's fundamental right to have a jury fairly evaluate the
merits of [her] defense." State v. Smith,
167 N.J. 158, 181-82
(2001) (quoting State v. Timmendequas,
161 N.J. 515, 575 (1999)).
D
Defendant's additional arguments that the assistant
prosecutor improperly: used a PowerPoint in her opening statement
and summation; asserted that defendant "wanted death" for her
husband; claimed defendant poisoned her husband to obtain full
custody of the child; made a comment regarding the duration of
Ming Wang's testimony; vouched for the credibility of Ming Wang,
22 A-1318-13T4
Grosser and Stefanelli; referred to defendant looking for her
"next victim" on a dating website while her husband was in the
hospital; distorted Chaplain White's testimony on the prayer he
offered defendant; referred to a list of lawyers in China who
defendant contacted regarding inheritance; presented that Wang was
too weak to tell defendant to leave the hospital; proffered that
defendant administered EDTA to Wang to remove or mask some of the
thallium; and urged the jury to find that defendant acted
intentionally in killing her husband, lack sufficient merit to
warrant discussion here. R. 2:11-3(e)(2). The alleged conduct
was either proper or not capable of producing an unjust result.
IV
Defendant argues for a new trial because the trial judge
granted the State's motion in limine and precluded the defense
from asserting medical malpractice as an intervening cause, and
declined to give a proffered jury charge on that issue. The
alleged intervening cause
related to repeated misdiagnosis at the
hospital of Wang's condition and its origin,
viz poison. The hospital failed to timely
order medical, urine and blood tests
identified as required by several treating
physicians. Had the hospital provided proper
medical care, the condition would have been
diagnosed and the antidote to the poison
administered.
23 A-1318-13T4
Defendant contends "[i]ntervening cause is not an affirmative
defense" but is "encompassed in a statutory definition of the
elements of causation" and, inasmuch as the State's direct case
set forth evidence of "the hospital's gross negligence," the trial
court erred in requiring defendant to produce expert medical
testimony to support her theory.
The trial judge, in his written opinion, analyzed the law of
this and other jurisdictions and concluded, "Gross negligence or
intentional medical malpractice constitutes a valid defense where
it is disconnected from the culpable act of the defendant, because
the intervening conduct is abnormal and not reasonably
foreseeable." He continued:
Mere negligence in treatment may be no
defense even though it is the sole cause of
death because it is a foreseeable intervening
cause. However, death caused by grossly
improper treatment is not the proximate
consequence of . . . injury [caused by
defendant] unless the injury is an actual
contributing factor at the time of death
because such treatment is not an unforeseeable
intervening cause.
The judge also ruled defendant was required "to show that the
cause of death was the intervening cause of negligence of the
hospital and physicians," and that a "standard of care must be
established through expert testimony except where common knowledge
may furnish the standard of care." Finding that the affidavits
24 A-1318-13T4
of merit submitted by the defense were not "substantial evidence"
that Wang's death resulted from "any malpractice much less gross
medical malpractice," the judge disallowed defendant's intervening
cause assertion.
The judge's ruling on the admissibility of evidence is
"subject to limited appellate scrutiny." State v. Buda,
195 N.J.
278, 294 (2008). The "interpretation of the law and the legal
consequences that flow from established facts are not entitled to
any special deference." Manalapan Realty, LP v. Twp. Comm. of
Manalapan,
140 N.J. 366, 378 (1995); see also State v. Handy,
206 N.J. 39, 45 (2011). We review de novo the judge's interpretation
of the law, including applicable statutory provisions. State v.
Nance,
228 N.J. 378, 393 (2017).
We need not parse this argument and decide the nature and
extent, or the proofs, if any, of medical malpractice that must
be shown before introduction of evidence of an intervening cause
is permitted. This was not a case involving an intervening cause.
"Conduct is the cause of a result when: (1) [i]t is an
antecedent but for which the result in question would not have
occurred; and (2) [t]he relationship between the conduct and result
satisfies any additional causal requirements imposed by the code
or by the law defining the offense."
N.J.S.A. 2C:2-3(a). In
order to prove the charge of murder, the State had to prove
25 A-1318-13T4
defendant purposely or knowingly caused Wang's death or serious
bodily injury that resulted in his death.
N.J.S.A. 2C:11-3(a)(1),
(2).
N.J.S.A. 2C:2-3(b) provides:
When the offense requires that the defendant
purposely or knowingly cause a particular
result, the actual result must be within the
design or contemplation, as the case may be,
of the actor, or, if not, the actual result
must involve the same kind of injury or harm
as that designed or contemplated and not be
too remote, accidental in its occurrence, or
dependent on another’s volitional act to have
a just bearing on the actor’s liability or on
the gravity of his offense.
Recognizing that neither the New Jersey Criminal Code nor the
Model Penal Code identifies "what may be an intervening cause,"
State v. Pelham,
176 N.J. 448, 461 (2003), our Supreme Court held:
"Intervening cause" is defined as "[a]n event
that comes between the initial event in a
sequence and the end result, thereby altering
the natural course of events that might have
connected a wrongful act to an injury."
Black's Law Dictionary 212 (7th ed. 1999).
Generally, to avoid breaking the chain of
causation for criminal liability, a variation
between the result intended or risked and the
actual result of defendant's conduct must not
be so out of the ordinary that it is unfair
to hold defendant responsible for that result.
Wayne R. LaFave & Austin W. Scott, Jr.,
Handbook on Criminal Law § 35 (1972); see also
State v. Martin,
119 N.J. 2, 14 (1990). A
defendant may be relieved of criminal
liability for a victim's death if an
"independent" intervening cause has occurred,
meaning "an act of an independent person or
entity that destroys the causal connection
between the defendant's act and the victim's
26 A-1318-13T4
injury and, thereby becomes the cause of the
victim's injury." People v. Saavedra-
Rodriguez,
971 P.2d 223, 225-26 (Colo. 1998).
[Pelham,
176 N.J. at 461-62 (alteration in
original).]
Nothing broke the causal chain between defendant's
administration of thallium to Wang and his death. Considering the
extremely high levels of that heavy metal detected in Wang's urine,
and its general unavailability, his death did not differ in kind
from that which was designed or contemplated by the person found
by the jury to have administered it, nor was the death "too remote,
accidental in its occurrence, or dependent on another's volitional
act to justify a murder conviction." Id. at 461 (quoting Martin,
119 N.J. at 13). Once the high level of thallium found in Wang
was administered, the occurrence of death – the intended
consequence of the administration – was never in doubt. No action
or inaction of the hospital staff altered the natural course of
events between the administration and Wang's death.
The judge, therefore, did not err in precluding defendant's
assertion of the hospital personnel's treatment failures as an
intervening cause. As such, the judge was not required to instruct
the jury on intervening cause, as requested by defendant.
V
27 A-1318-13T4
We carefully considered the closure of the courtroom for a
brief period during Stefanelli's testimony. The door was locked
by an officer absent any request or direction from the trial judge.
An improper closure of the courtroom is considered a
structural error in the trial, entitling the defendant to relief,
regardless of whether the defendant establishes specific
prejudice. Waller v. Georgia,
467 U.S. 39, 49-50 (1984); State
v. Cuccio,
350 N.J. Super. 248, 260-61 (App. Div. 2002). In fixing
a remedy for an improper closure, however, the court must consider
the nature and extent of the violation, as "the remedy should be
appropriate to the violation." Waller,
467 U.S. at 49-50 (ordering
a new suppression hearing, as opposed to a new trial, where the
trial court erroneously closed the hearing to the public, reasoning
that "[i]f, after a new suppression hearing, essentially the same
evidence is suppressed, a new trial presumably would be a windfall
for the defendant, and not in the public interest"). Where the
courtroom is accidentally closed for an "extremely short" period
of time, the court may find no violation of the right to a public
trial, and thus, may order no remedy. Cuccio,
350 N.J. Super. at
268 (discussing Peterson v. Williams,
85 F.3d 39 (2d Cir. 1996)).
See also Snyder v. Coiner,
365 F. Supp. 321, 324 (N.D.W. Va. 1973)
(finding no Sixth Amendment violation where a sheriff,
28 A-1318-13T4
misunderstanding the judge, briefly closed the courtroom during
summation), aff'd,
510 F.2d 224, 230 (4th Cir. 1975).
In light of the brief period the courtroom was locked, the
judge's open-court statement that Stefanelli's "testimony is open
to the public and so is a CD [recording of the testimony] . . .
if someone wants to get a copy of it," and the absence of any
suggested cure by the defense after the judge investigated the
reason for the closure, we do not conclude a new trial is
warranted.
VI
We determine the balance of defendant's arguments that the
trial judge erred by: giving the jury an instruction on prior bad
acts, N.J.R.E. 404(b); allowing the admission of autopsy
photographs; not permitting defendant to play the entirety of her
supervisor's statement to police; prohibiting testimony on the
basis of cleric-penitent privilege, N.J.R.E. 511; permitting the
jury to be "misled by the untranslated Chinese printout and the
wrong speculation of the prosecutor and the State's witness";
allowing the admission of "a timeline created by Investigator
Temple"; denying defendant's motion for a mistrial based on
comments by the assistant prosecutor in front of the jury; and
denying defendant's request that members of the venire be notified
during jury selection of a related civil action are without
29 A-1318-13T4
sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(2). We add only that we find no abuse of discretion as
to the judge's evidentiary rulings or his rulings on jury voir
dire; none of the issues raised for the first time on appeal were
clearly capable of producing an unjust result under the plain
error standard; and the judge's curative instruction in lieu of
the mistrial defendant requested after the assistant prosecutor
asked the court – in front of the jury – for an instruction that
he found defendant's statement to be "constitutionally okay" was
appropriate notwithstanding that the statement clearly violated
N.J.R.E. 104(c).9 See Allah,
170 N.J. at 280-81 (providing that
when an appropriate alternative to a mistrial exists, the court
should employ the alternative).
Affirmed.
9 N.J.R.E. 104(c) provides:
Where by virtue of any rule of law a judge is
required in a criminal action to make a
preliminary determination as to the
admissibility of a statement by the defendant,
the judge shall hear and determine the
question of its admissibility out of the
presence of the jury. . . . If the judge admits
the statement the jury shall not be informed
of the finding that the statement is
admissible but shall be instructed to
disregard the statement if it finds that it
is not credible.
30 A-1318-13T4
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