STATE OF NEW JERSEY v. SERGIO DEROSA
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-1350-17T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SERGIO DEROSA,
Defendant-Appellant.
_________________________
Argued October 1, 2020 – Decided October 29, 2020
Before Judges Sumners, Geiger, and Mitterhoff.
On appeal from the Superior Court of New Jersey,
Law Division, Atlantic County, Indictment No. 16-09-
2118.
Michele A. Adubato, Designated Counsel, argued the
cause for appellant (Joseph E. Krakora, Public
Defender, attorney; Michele A. Adubato, on the brief).
Adam D. Klein, Deputy Attorney General, argued the
cause for respondent (Gurbir S. Grewal, Attorney
General, attorney; Adam D. Klein, of counsel and on
the brief).
PER CURIAM
Defendant Sergio DeRosa claimed that he accidently fatally shot his
wife, Lynn DeRosa, while he was cleaning his shotgun in the living room of
their home. A jury found him guilty of first degree knowing or purposeful
murder, N.J.S.A. 2C:11-3(a)(1).
On appeal, defendant argues that his conviction should be vacated and
the case be remanded for a new trial because: (1) the court erred in denying
his motion to strike the testimony of a State’s witness and to dismiss the
indictment based on discovery violations; (2) the court erred in failing to rule
on the voluntariness of his statement and in denying his motion to suppress;
(3) the prosecutor’s withholding discovery and comments during summation
on facts not in evidence deprived him of a fair trial; (4) the court erred in
denying his motion for a new trial; and (5) the court's cumulative errors denied
him a fair trial. We disagree and affirm.
I.
To provide context to the issues raised by defendant, we summarize the
testimony adduced during the trial.
A. The State's Case
At approximately 9:30 p.m. on May 26, 2014, defendant called 9-1-1
from his home in Mullica Township screaming for help because he said, "the
gun went off, oh my god," and "I just hurt my wife." The 9-1-1 operator heard
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an alarm going off in the background and then defendant hung up. Defendant
also left a message on his son Christopher's phone screaming, "[h]elp me,
Chris, help me." Christopher, who was employed as a State Trooper,
immediately called his father back, but defendant did not answer the call.
At the same time, Eric Schnitzel, defendant's next-door neighbor and a
volunteer firefighter, walked over when he heard defendant screaming for
help. Schnitzel testified that as he approached defendant's house, he saw
defendant lying on his front porch screaming and heard the house alarm going
off. Defendant asked Schnitzel to help his wife Lynn, who was inside the
house, claiming he shot her "by accident" when she asked him to "clean the
gun," and that he did not "realize there was a live round in there." Defendant
did not offer to go inside the house with Schnitzel. Schnitzel found Lynn, who
was wearing pajamas, lying on the couch in the living room. He testified that
Lynn "was lifeless," had no pulse, and appeared to be dead.
Meanwhile, Officer Ryan Spencer of the Mullica Township Police
Department was dispatched to defendant’s home on a report of "shots fired."
Upon arrival, he observed that defendant, who was wearing a tee shirt, boxers,
and high socks, was seated on the front porch, and was screaming and yelling.
With his gun drawn, Spencer ordered defendant onto the ground. Defendant
complied and then began rolling around in the driveway screaming, "I shot my
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wife, I thought it was a dummy round, she’s dead, I want to die." Spencer
handcuffed defendant, retrieved his cell phone, gave him a blanket to cover
himself, and placed him in the back of the patrol car. Spencer testified that
there was blood on defendant's hands but not on his cell phone.
Officer Michael Jamerson arrived at the scene shortly after Spencer.
Upon arrival, Jamerson observed that defendant appeared "extremely . . .
animated," and "kept yelling my wife, my wife, I shot her." Jamerson entered
the house and found Lynn lying on the couch facing defendant's recliner chair ,
with "blood all around her head area." He also observed a shotgun with a bag
of cleaning supplies, a gun bag, and a spent shell casing next to the shotgun on
the clean light-colored carpet. Inside the gun bag were two loose A-Zoom
snap caps (not live rounds), one loose round of Federal Premium 12-gauge
buckshot, and a partially filled box of target rounds, which defendant and Lynn
used to go clay sport shooting. Jamerson checked Lynn's vitals and confirmed
that she was dead.
Jamerson and Spencer then transported defendant to the Atlantic County
Prosecutor’s Office (Prosecutor's Office). Jamerson testified that defendant
seemed "agitated," did not seem "normal," and kept asking to be taken to the
hospital to see Lynn but calmed down en route.
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At approximately 10:40 p.m., Detective Paul Micheletti of the
Prosecutor's Office arrived at the scene. Micheletti, the State’s expert in crime
scenes, testified that the house was "very well kept" and "very clean ." He
observed that Lynn had sustained what appeared to be a gunshot wound to her
right temple and that there was blood on her head, clothing, and the sofa. He
also observed white shotgun particulate, or gunshot powder, on the surface of
her right eyelid.
Micheletti found two guns in the living room—an uncased 12-gauge
semiautomatic Benelli Vinci shotgun with the chamber in the open position on
the floor and another shotgun in a case on the floor which was not loaded with
either a snap cap or a live round. He also found a gun bag on the floor on the
left side of the recliner, an expended shot gun shell on the floor in close
proximity to the chair, and gun cleaning supplies, including brushes, rods, gun
oil, a bore snake, and rags, on a towel or cloth on the floor in front of the chair.
He testified that cleaning a gun usually causes an area to get dirty, but that the
light-colored carpet around the cleaning supplies was "very clean." He also
found an empty packaging container for two A-Zoom 12-gauge snap caps in a
dresser in the master bedroom, which fit the snap caps found in the gun bag.
An autopsy performed by Dr. Marianne Hamel, a forensic pathologist,
revealed that the cause of Lynn's death "was a shotgun wound to the head with
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skull fractures and brain injuries," and that the manner of death was
"[h]omicide." Hamel found "fine white particulate matter over the right side
of her face and her hair," and around her eyelids, but no injury to her eyes.
Hamel concluded that "[t]he lack of injury to the surface of her eye suggests
that her eyes were closed at the time of the incident."
Meanwhile, beginning at 11:35 p.m. on the night of the shooting,
defendant gave a lengthy video-recorded statement at the Prosecutor's Office
to Detectives Bill Anton and Chris Silva, which was played for the j ury.
Anton read defendant his Miranda1 rights, and defendant signed the waiver,
stating "[w]hatever you want I will tell you everything." During the
approximately three-hour interview, defendant's behavior swung from being
extremely agitated and animated, to being relatively calm and lucid. He
repeatedly admitted that he had fired the gun, and repeatedly asked to see his
wife, but vehemently denied that he had intended to kill her, claiming that
Lynn was his "rock," they were inseparable, they were "madly in love with
each other," and they rarely ever argued.
Defendant, who collected social security disability payments and
considered himself a professional poker player, explained that he had spent the
1
Miranda v. Arizona, 384 U.S. 436 (1966).
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day at the race track with his brothers and had intended to stay overnight at the
Borgata casino and play in a poker tournament but decided to go with his
brother to the racetrack instead. He arrived home about 5:30 p.m., made
dinner for Lynn, who arrived home around 7:00 p.m., and then they watched
television in the living room together. At some point, Lynn asked him to clean
the guns because, as was their custom, they had gone target shooting on the
previous day but had not, as they normally did, cleaned the guns when they
returned home. Defendant claimed that Lynn had recently bought "very
expensive" guns, that it had been her idea to start target shooting, and that he
did not know much about guns, but that she was teaching him.
Defendant said that Lynn, who was lying on the couch in the living
room, coached him how to clean the gun while he was seated in the recliner
holding the gun on his lap. He cleaned the gun with a "bore snake," and then
reached into the gun bag on the floor on his left side, and put what he thought
was a snap cap into the gun, released the safety, pulled the trigger to release
the tension, and then "boom, it went off." He saw blood coming out of Lynn’s
ear, and when he touched her to try and "wake her up," he got blood on his
hand. Defendant started screaming, activated the alarm system, and called 9-
1-1.
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Defendant repeatedly denied intentionally choosing a live round, but
admitted that he knew there was a box of light load shells for target shooting in
the bag, as well as two heavy duty shells that Ron Karrer, a friend of Lynn’s,
had given her as a gift. Defendant said that Karrer, the manager of a feed and
grain store, who delivered hay and grain to their house for their horses, had
started Lynn's interest in shooting and had taught her how to shoot.
Defendant, who at one point referred to Ron as "a f***king redneck, scum,"
vehemently denied that Lynn had had an affair with Ron, and said that even if
she had, he would not have killed her, but would have just moved on and
gotten a divorce, even though his brother "lost half a million . . . dollars"
getting divorced.
In any event, defendant said that he had purchased the two snap caps
three days earlier during a trip with Lynn to Cabela’s because she had been
using one of Karrer’s snap caps and had to give it back to him. A receipt from
Cabela’s dated May 23, 2014, which was admitted into evidence, indicated that
on that date Lynn had purchased a box of 12-gauge target load shells and a
snake bore, used to clean the barrel of the shotgun, but no buckshot shells or
snap caps.
During his statement, defendant also volunteered that Lynn, who earned
approximately $80,000 a year as an x-ray technician, "loved to buy nice
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things," had "nice taste," owned horses, and bought a new sports car every six
months, including a Porsche, BMW, and Mercedes. He said that they had
placed all of their assets in Lynn's name because he had previously owned a
restaurant and wanted to protect them, and that Lynn "control[led]" their
money, and "handled all the finances." He claimed he did not know if his wife
had a life insurance policy and said that he gave her $700 per month from his
disability benefits to pay off an outstanding loan from their restaurant
business.
At the conclusion of his statement, defendant was not placed under arrest
and was taken to the hospital for a psychiatric examination because he had
talked about wanting to harm himself. He was subsequently transferred to a
psychiatric hospital where he remained for approximately three weeks.
On June 5, 2014, defendant's son Christopher filed a petition to be
appointed as the administrator of his mother's estate, and in July 2014,
obtained a restraining order against defendant for harassing and threatening
him. A six-month probate battle between Christopher and defendant ensued.
The matter was ultimately resolved in November 2014, when defendant signed
an agreement giving up all his rights to the estate. Christopher claimed that
defendant had an unspecified ulterior motive for signing the agreement and did
not do so because he wanted to repair their relationship.
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Christopher testified that during the probate battle, defendant told him
that in June or July 2014, he had taken the money out of the safety deposit box
that, at defendant's urging, Christopher had set up for his mother years earlier.
Defendant did not tell Christopher when he removed the money and told him
"not to tell anybody." Defendant had previously told him that there was
$80,000 in cash from the sale of Lynn's mother's house in the box.
Christopher recalled that at some point after 2010, he suggested that they use
the money to pay the outstanding loan for the restaurant kitchen equipment.
He testified that defendant became "angry," and began screaming and yelling,
"[j]ust don't go into the box, you're not going into that box, I'll pay for it, I'll
take care of it." He believed that defendant made the $700 per month
restaurant loan payment because he did not want Lynn to go into the box and
find out that the money was missing. Shortly after Lynn's death, Christopher
opened the safety deposit box and it was empty.
In November 2014, after Christopher became the administrator of his
mother's estate, he went to her residence and retrieved defendant's key to the
safety deposit box that was taped to the back of a painting with a "receipt" for
$84,700. He thoroughly searched the house but found no cash. He also
claimed that defendant was aware of the details of Lynn's finances because
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when he searched the house, he found that defendant had taken out all of
Lynn's financial papers, including her life insurance policy.
Christopher received $103,000 in life insurance proceeds, and as part of
his mother's estate, the contents of her checking account. Defendant
subsequently filed a complaint against Christopher and Gloria, Christopher's
wife, alleging that they stole $60,000 and personal items from the house.
Christopher presented a very different picture of the state of his parent's
marriage. He testified that his parents were "distant," and fought, bickered,
and argued "[m]ostly [about] money, money issues." He testified that his
parents had even argued on the way to Cabela's on May 23, 2014. Christopher
also testified that all his parent's assets were in his mother's name because his
mother did not trust defendant "with finances." Gloria similarly testified that
defendant and Lynn argued about money all the time, and said that after Lynn's
death, defendant had demanded $20,000 from them, but they did not give it to
him because he had killed Lynn for her money.
Christopher and Gloria also confirmed that Karrer had introduced Lynn
to target shooting, that Karrer often texted and called Lynn, and that
approximately two months before Lynn was killed, defendant asked
Christopher to tell Lynn to stop talking to Karrer. Karrer, who said he was
"friendly" with Lynn, testified that he gave her a buckshot cartridge as a gift,
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that they had had weekly contact, and texted each other "every day or every
other day back and forth."
In March 2015, Elaine Murphy, a poker dealer at the Borgata, came
forward and reported to Lieutenant Kevin Ruga of the Prosecutor's Office, that
prior to Lynn's death, defendant, who had played poker at her table one -to-
three times a week for eight-to-ten years, said, "I'm going to kill my wife."
She responded to him, "Come on, Serg," and defendant, who did not appear to
be joking, said, "literally I’m going to kill my wife." She asked defendant
"what did she do," and he said that his wife was "lazy, she don't do nothing,
she just sits around, [and] she spends money."
Murphy did not tell anyone at the time about defendant's statement
because she did not "take it serious[ly]." However, she changed her mind
about the seriousness of the statement in the summer of 2014, when while in
the break room with Mark Carlin and a couple of other co-workers, one of her
co-workers showed her a picture of defendant on his or her phone and said that
defendant had shot his wife. Murphy told her co-workers what defendant had
said but did not come forward at that time because she was "hoping it would
get solved without [her] help" and she "did not want to get involved."
Murphy explained that she finally came forward in March 2015, ten
months after Lynn's death, because "[i]t was just eating" her that defendant,
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who had not yet been arrested, was still coming to the Borgata to play and that
"maybe the information [she] had might be pertinent and [she] should probably
talk to somebody." She was "a hundred percent sure" that defendant had said
he wanted to kill his wife "and that's why [she] came forward." Murphy was,
however, only seventy-five percent sure of the exact wording of his response
that he wanted to do so because his wife was lazy and spent money.
When Murphy first spoke to Ruga in March 2015, she did not remember
the exact date defendant made that statement, but recalled it occurred
approximately two to four months before June 2014, when she found out about
Lynn's death, and on the only day defendant had played "2-5 No Limit poker";
he normally played "1-2 No Limit poker." Murphy said that she could
probably pinpoint the day if she reviewed the Borgata's records, which she did
not have access to.
During trial preparation, Murphy reviewed the records of defendant's
gambling at the Borgata for the period from January to September 2014.
Murphy testified that the records showed defendant only played "2-5 No
Limit" poker on one day in 2014—April 26, 2014—which confirmed that was
when defendant made the statement.
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Defendant was arrested and subsequently indicted for second-degree
reckless manslaughter, N.J.S.A. 2C:11-4(b)(1). A superseding indictment
charged defendant with first-degree knowing or purposeful murder.
Defendant was tried before a different judge and a jury in July 2017. At
trial, Emanuel Kapelsohn, the State’s expert in firearms and shooting scene
reconstructions, testified that cleaning a shotgun is a "messy job," the kind of
"job for the garage or basement usually." He explained that cleaning a gun
involves the use of solvents and oils, and that the bristle brush used to clean
the barrel flings bits of black soot or carbon "in all directions." Kapelsohn
opined that you can immediately tell the difference between the Federal
Cartridge 12-gauge double buckshot used to kill Lynn, and the A-Zoom
snapshot that defendant said he thought he had loaded into the gun. The
buckshot shell was a plastic tube with a crimped top and a steel brass-plated
head or base. In contrast, although the snap cap was similar in dimension and
weight, it was a solid metal tube that had no crimping, and significantly, did
not have a brass head. Kapelsohn stated that "the brass [head] is obvious, it's
easy to see, it's obvious, it has a live primer in it."
Kapelsohn explained that although a person might not know simply by
feel which shell he was grabbing,
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if the person were simply to take a moment to look at
what he was grabbing before inserting it into the
shotgun, it should be immediately apparent to anyone
who has fired a shotgun as many times as [defendant]
had, whether the object he has in his hand is or is not a
live shotgun shell.
He further testified there was no reason to use a snap cap in the Benelli Vinci
semiautomatic single-barrel shotgun because a snap cap is used to prevent
damage caused by dry-firing for storage, and the Benelli does not sustain
damage during dry-firing.
Nonetheless, Kapelsohn concluded that based on the entry wound and
trajectory of the pellets, it was possible that defendant shot Lynn while he was
seated on the chair with the shotgun rested across his lap and Lynn was laying
on the couch. However, he said that the gun could have been fired from any
number of positions, including holding the gun near his hip level and from a
kneeling position, "that would put the shotgun at about the level or a little
below the level of her head." On cross-examination, he testified that he could
not reach a conclusion, based on the physical evidence, "whether it was
intentional or unintentional. I made it clear that I wasn't deciding that it was
clearly unintentional."
B. The Defense
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Carlin, who was employed as a poker dealer at the Borgata, testified that
although he may have been in the break room with Murphy during the summer
of 2014, and might have heard people talking about defendant having shot his
wife, he denied that Murphy told anyone in his presence that defendant had
said he was going to kill his wife, or that he showed Murphy a picture of
defendant on his phone. He confirmed, however, that he had only seen
defendant play "1-2 No Limit poker," and that the Borgata records revealed
that defendant had played "2-5 No Limit" poker on only one day, April 26,
2014. He testified that defendant, who was a regular customer for several
years, had a reputation for being honest, courteous and a gentleman, seemed
"very well-balanced," and did not get really upset when he lost a hand of
poker.
Defendant testified on his own behalf. He provided background
information about his career in the restaurant industry, claimed he loved his
wife unconditionally, was very attentive to her, and that money was never an
issue in the family. He denied having ever spoken to Murphy about Lynn and
denied that he would ever have called Lynn "lazy," because she was "totally
[the] opposite" of lazy.
Defendant testified substantially in accord with his statement to the
police as to the events leading up to Lynn's death. He vehemently denied
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intentionally shooting her. Defendant testified that at approximately 9:00 p.m.
that evening, Lynn reminded him that they had forgotten to clean the guns.
While seated on the recliner, he began to clean one of the guns with the new
bore snake. Lynn, who was lying on the couch watching him, started laughing
and told him that he was doing it wrong, and instructed him how to pull the
bore through the barrel and then told him to "get the snap cap out."
Defendant reached into the gun bag with his right hand, which was on
his left side on the floor, and pulled out a snap cap. He did not look in the bag
before he picked up the shell because his "mind didn’t tell [him] to look at it."
Defendant claimed he did not expect that a live round was in the bag because
"[t]he only thing that Lynn told [him] were the snap caps were inside the bag ."
He then placed the shell in the gun on his lap, pulled the trigger, and "boom."
He ran over to Lynn, whose eyes were open, touched her face and noticed a
little blood by her ear, but did not see the bullet wound and "[n]ever, never"
thought she was dead.
After Lynn's death, defendant sent a letter to Christopher dated May 29,
2014, stating that he would give everything to him if he would agree to care
for Lynn's horses. He claimed that, "I did something stupid to make sure that
the animals would be taken care of until they die, any money I had, whatever
money I had in the house.”
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Defendant was treated at a psychiatric facility for about three weeks
after the shooting. After he was released from the facility on June 18, 2014, he
returned home and claimed he found that Christopher had stolen jewelry,
$47,200 in cash, and other valuables. He also claimed that he and Lynn had
taken about $85,000 in cash out of the safety deposit box on February 4, 2011,
three years before her death, to cover expenses and to put a down payment on
the Mercedes.
On cross-examination, defendant admitted that he "was freely and
willing to tell them the truth" during the interrogation, that "[t]he police were
very, very nice" to him, that he "felt safe," and that his statement was
"accurate." However, some of his testimony was inconsistent with his prior
statement, notably, that he did not know the buckshot shells were in the bag on
the day of the shooting, did not know that Karrer had given Lynn the buckshot
shells until the trial, did not routinely clean the guns after they went shooting
on Sundays, and did not often stay overnight at the Borgata. He blamed Karrer
for Lynn's death, claiming that she would be alive if he had not given her the
buckshot shells. He denied, however, that he did not like Karrer, and said he
called everyone a "redneck."
The motion judge denied defendant's motion to suppress the videotaped
statement, finding defendant had been properly administered Miranda rights
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and made a knowing, voluntary, and intelligent waiver of those rights. The
trial judge also denied defendant's motions to strike Murphy's testimony, to
dismiss the indictment based on alleged discovery violations, for a directed
verdict, and for a new trial.
The jury found defendant guilty of first-degree murder, N.J.S.A. 2C:11-
3(a)(1). On October 3, 2017, he was sentenced to the mandatory minimum
thirty-year prison term with a thirty-year parole disqualifier, N.J.S.A. 2C:11-
3(b)(1). This appeal followed.
Defendant raises the following points for our consideration:
POINT I
THE TRIAL COURT'S FAILURE TO DISMISS THE
INDICTMENT OR STRIKE THE TESTIMONY OF
MS. MURPHY DUE TO THE STATE'S
EGREGIOUS FAILURE TO MAKE TIMELY
DISCLOSURE OF DISCOVERY DENIED
DEFENDANT A FAIR TRIAL.
POINT II
THE MOTION COURT'S REFUSAL TO RULE ON
THE VOLUNTARINESS OF DEFENDANT'S
STATEMENT AT THE PRE-TRIAL HEARING
MANDATED THAT DEFENDANT'S STATEMENT
SHOULD BE SUPPRESSED AND EXCLUDED
FROM EVIDENCE.
POINT III
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IT WAS ERROR FOR THE COURT TO DENY
DEFENDANT'S MOTION TO DISMISS THE
INDICTMENT FOR DISCOVERY VIOLATIONS.
POINT IV
THE FAILURE OF DEFENDANT TO
KNOWINGLY, VOLUNTARILY AND
INTELLIGENTLY WAIVE HIS RIGHTS TO
REMAIN SILENT MANDATED THAT HIS
STATEMENT BE SUPPRESSED.
POINT V
CONDUCT BY THE PROSECUTOR IN
WITHHOLDING DISCOVERY AND COMMENTS
MADE BY HIM DURING HIS SUMMATION ON
FACTS NOT IN EVIDENCE DEPRIVED
DEFENDANT OF A FAIR TRIAL.
POINT VI
DENIAL OF THE DEFENDANT'S MOTION FOR
NEW TRIAL WAS ERROR.
POINT VII
THE AGGREGATE OF ERRORS DENIED
DEFENDANT A FAIR TRIAL. (Not raised below).
II.
We first address defendant's argument that the trial court erred in
denying his motion to strike Murphy's testimony and to dismiss the indictment
due to the State's alleged failure to timely disclose all of Murphy's statements
and exculpatory information it received from Carlin. At issue are four pieces
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of evidence: (1) Murphy's unrecorded statement in 2016, pinpointing April 26,
2014, as the date defendant told her he wanted to kill his wife; (2) Murphy's
unrecorded statement two weeks before trial regarding defendant's comment
that his wife was lazy and spent money; (3) Carlin's unrecorded statement to
the detectives on July 3, 2017; and (4) Carlin's recorded statement to Ruga in
July 2017, denying that he showed Murphy a picture of defendant on his
phone, which was provided to the defense.
Ruga prepared a report detailing Murphy's March 2015 statement,
which, together with a transcript of her recorded statement, was submitted to
the defense in discovery, but was not admitted into evidence at trial. In that
statement, Murphy reported to Ruga that prior to Lynn's death, defendant said,
"I'm going to kill my wife." She did not remember the exact date defendant
made that statement, but recalled it occurred approximately two-to-four
months before she found out about Lynn's death, and on the only day
defendant had played "2-5 No Limit poker." Murphy said she could probably
pinpoint the day if she reviewed the Borgata's records of defendant's gambling.
She also said that she told three co-workers, including Carlin, about
defendant’s statement sometime during the summer of 2014.
Sometime later, possibly in 2016, the Prosecutor's Office obtained the
Borgata records and showed them to Murphy. Based on those records,
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Murphy determined that defendant made the statement on April 26, 2014, a
date within the time frame that she initially said the comment occurred. Ruga
did not document Murphy's statement in a report, although the Borgata records
were provided to the defense in discovery.
Additionally, according to Ruga, approximately two weeks before the
trial began, Murphy told him that although she was not one hundred percent
sure, she believed that when she asked defendant what his wife had done, he
responded that his wife was lazy and spent money. Ruga did not document the
statement or otherwise divulge the contents.
The defense learned, for the first time during Murphy's testimony at trial
on July 12, 2017, that she claimed that defendant had made the statement on
April 26, 2014, and that when she asked him what his wife had done, he
responded that "she's lazy, she don't do nothing, she just sits around, [and] she
spends money."
On July 13, 2017, at the conclusion of the State's case, the defense
moved to exclude the entirety of Murphy's testimony for discovery violations,
or at least those portions that were not provided in discovery. The judge
denied the motion, finding that the defense had been placed on notice that
defendant made the statement two or four months before the incident, and that
Murphy had been subjected "to cross-examination as to why she didn't say this
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then." The judge noted that "the jury paid attention to it, and to the extent that
her story may have varied or she may have supplemented it, it wasn't the
subject of such surprise that counsel wasn't able to address it capably in cross -
examination." On that same date, the court found, in denying defendant's
motion for a directed verdict, that even in the absence of Murphy's testimony,
the jury could find defendant guilty of murder beyond a reasonable doubt.
On the following Monday, July 17, 2017, just prior to defendant's
testimony, the defense moved to dismiss the indictment for willful violation of
the continuing obligation to provide discovery, or in the alternative, to again
exclude Murphy's testimony. Defense counsel represented that she had just
learned over the weekend that during the service of a subpoena on Carlin on
July 3, 2017, Carlin denied having shown Murphy a picture of defendant in the
break room during the summer of 2014. Counsel argued that the evidence was
exculpatory because it contradicted both Murphy's version of how she
discovered that defendant killed his wife and that Carlin had never had a
conversation about defendant with her.
The prosecutor responded that detectives had served a subpoena on
Carlin on July 3, 2017, as a rebuttal witness because he could not call Carlin as
a witness to bolster Murphy's testimony during the State's case-in-chief.
During service of the subpoena, the detectives had a "generic conversation"
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with Carlin, which they did not document. On July 15 or 16, 2017, Ruga
interviewed Carlin and that information was provided to the defense in
discovery. The prosecutor represented that Carlin said he did not recall having
a specific conversation with Murphy, but that it could have happened .
The trial judge denied the motions, finding that it did not rise to the level
of a violation under Brady v. Maryland, 373 U.S. 83 (1963), because Carlin's
statement was not "clearly exculpatory," and to the extent it contradicted
Murphy's testimony, the defense can call him to testify.
Carlin subsequently testified for the defense that he first spoke to
investigators from the Prosecutor's Office on July 3, 2017 and discussed his
knowledge of the case with them. Thereafter, on July 4 or 5, 2017, he spoke to
Murphy and told her that "a couple [of] guys from the [P]rosecutor's [O]ffice
came over [to his] house," and he asked her "what's going on." Murphy asked
him whether he remembered talking about defendant in the break room and
showing her a picture of defendant on his phone. Carlin replied, "I may have
been in the break room, I might have heard people talking, but I've never ever
brought his picture up on the phone." He also denied having heard Murphy
state that defendant told her he was going to kill his wife but admitted that he
had heard people talking about the incident at the casino.
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24
In denying defendant's motion for a new trial, the court found the State
had complied with its discovery obligations and had not committed a Brady
violation. In a supplemental written decision, the court stated:
Much of the defense argument went to the testimony
of Elaine Murphy . . . . She testified that on April 26,
2014 the [d]efendant told her he was going to kill his
wife because she was lazy. The name of the witness
and her statement was provided to the [d]efense well
before trial. However, the exact date was not supplied
until the witness testified.
Defendant argued that Murphy's testimony was
the only evidence of murder. Defendant further
argued that the failure to supply the date was so
prejudicial as to require striking the witness's
testimony or granting a new trial. The State countered
that the witness disclosed in her initial statement that
the date might be identified if she were shown the
casino records . . . . The State further argued that a
time frame was supplied in the initial statement (2-4
months prior to her learning of the murder) which was
roughly consistent with the date supplied during her
testimony.
It bears repeating that given the nature of the
act, and the [d]efendant's asserted defense, it could be
that the jury simply did not believe [d]efendant.
Accordingly, [d]efendant's assertion that Ms.
Murphy's testimony is the only evidence of murder is
mistaken.
Also, the State supplied the name and statement
of the witness along with an approximate time frame
when she heard [d]efendant make the comment. Her
statement included the suggestion that she might be
able to pinpoint the date if shown the casino records.
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25
For all of those reasons I determined that there
was no Brady or discovery violation. There was
certainly no prejudice or surprise which would have
required the barring or striking of the witness's
testimony or rising to the level under Rule 3:20-1 to
require a new trial.
Regarding the timeliness of the State's disclosure of the Carlin interview,
the judge found:
Defendant was supplied with the particulars of the
Carlin interview. Additionally, his testimony was not
of such moment that such a failure would require a
new trial. Carlin simply testified that he was a
coworker of Murphy's and he did not hear her recount
[defendant's] comment on the date and time she
testified she told her coworkers. He did indicate that
she may have said it on another occasion.
Accordingly, I found no violation of the State's
discovery obligation and no reason to order a new
trial.
We are guided by well-established precedent. "Rule 3:13-3 entitles
defendants to broad discovery and imposes an affirmative duty on the State to
make timely disclosure of relevant information." State v. Smith, 224 N.J. 36,
48 (2016). "The metes and bounds of the State's discovery obligation to the
defense is found in Rule 3:13-3(b), which states that '[d]iscovery shall include
exculpatory information or material' and 'relevant material,' including all items
set forth in ten separate categories." State v. Hernandez, 225 N.J. 451, 462
A-1350-17T1
26
(2016) (alteration in original). "Late discovery can cause unfair surprise and
raise due process concerns." Smith, 224 N.J. at 48.
The parties are under "a continuing duty to provide discovery" on the
parties. R. 3:13-3(f). When a party fails to comply with its discovery
obligations, the court "may order such party to permit the discovery of
materials not previously disclosed, grant a continuance or delay during trial, or
prohibit the party from introducing in evidence the material not disclosed, or it
may enter such other order as it deems appropriate." Ibid. "An adjournment
or continuance is a preferred remedy where circumstances permit." State v.
Washington, 453 N.J. Super. 164, 190 (App. Div. 2018) (quoting State v.
Clark, 347 N.J. Super. 497, 509 (App. Div. 2002)). "A court's failure to take
appropriate action to remedy a discovery violation can implicate the
defendant's right to a fair trial." Smith, 224 N.J. at 48.
Trial courts have "broad discretion to determine the appropriate
sanctions to be imposed for discovery-rule violations." State v. Marshall, 123 N.J. 1, 130 (1991). Reviewing courts afford "substantial deference to a trial
court's issuance of a discovery order and will not interfere with such an order
absent an abuse of discretion." Hernandez, 225 N.J. at 461.
Relevant here, Rule 3:13-3(b)(1)(G), provides that discovery shall
include statements, whether "signed or unsigned, by such persons or by co -
A-1350-17T1
27
defendants which are within the possession, custody or control of the
prosecutor." Although the documents have not been provided on appeal, it is
undisputed that in compliance with this rule, the prosecutor provided the
defense with a copy of the transcript of Murphy's March 2015 statement and
Ruga's report documenting that statement. The Prosecutor's Office did not
document Murphy's subsequent oral statements.
"Our criminal discovery rules do not currently require the recordation of
all statements of witnesses obtained by law enforcement officers." State v.
W.B., 205 N.J. 588, 608 (2011). "[A] prosecutor is not obligated to create
tangible items of evidence; he is only required to turn over items 'within the
possession, custody or control of the prosecuting attorney.'" State v. Gordon,
261 N.J. Super. 462, 465 (App. Div. 1993) (quoting R. 3:13-3(a)(4), (6) and
(8)). Rule 3:13-3(b)(1)(G) does not on its face include unrecorded oral
statements by witnesses. Law enforcement officers are, however, required to
retain their contemporaneous notes of witness interviews, and those notes are
discoverable. W.B., 205 N.J. at 608. Notably, Ruga was not asked at trial
whether he took notes during trial preparation with Murphy. In any event, the
State does not dispute that this evidence was discoverable, contending instead
that the prosecutor abided by our discovery rules and the Brady requirements
in providing discovery to defendant.
A-1350-17T1
28
The State's failure to disclose "evidence favorable to an accused upon
request violates due process where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of the prosecution."
Brady, 373 U.S. at 87. A court must consider three essential elements when
determining "whether a Brady violation has occurred: (1) the evidence at issue
must be favorable to the accused, either as exculpatory or impeachment
evidence; (2) the State must have suppressed the evidence, either purposely or
inadvertently; and (3) the evidence must be material to the defendant's case."
State v. Brown, 236 N.J. 497, 518 (2019). The presence "of those three
elements evidences the deprivation of a defendant's constitutional right to a
fair trial . . . ." Ibid. (citing Brady, 373 U.S. at 87).
"Determining whether the first two Brady elements have been satisfied is
a straightforward analysis." Ibid. However, as in this case, where the
suppressed evidence was discovered during the trial, "determining the third
element -- whether the suppressed evidence is material -- is far more arduous."
Ibid. In deciding materiality, courts "'examine the circumstances under which
the nondisclosure arose' and '[t]he significance of a nondisclosure in the
context of the entire record.'" Ibid. (alteration in original) (quoting Marshall,
123 N.J. at 199-200). "In determining the effect of the withheld evidence 'in
the context of the entire record,'" courts "consider the strength of the State's
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29
case, the timing of disclosure of the withheld evidence, the relevance of the
suppressed evidence, and the withheld evidence's admissibility." Id. at 519
(quoting Marshall, 123 N.J. at 200). "[E]vidence is material if there is a
'reasonable probability' that timely production of the withheld evidence would
have led to a different result at trial." Id. at 520 (citing United States v.
Bagley, 473 U.S. 667, 682 (1985)).
Addressing each piece of evidence in turn, Murphy's statement that she
recalled, after viewing the Borgata records, that defendant made the statement
on April 26, 2014, did not establish the first Brady element because it was not
favorable to defendant, either as exculpatory or impeachment evidence. The
second Brady element was not satisfied because defendant was provided with
the Borgata records and knew that Murphy could pinpoint the date by
reviewing those records. By reviewing those records the defense would have
learned that defendant only played "2-5 No Limit poker" on April 26, 2014, a
date consistent with Murphy's statement that defendant spoke to her
approximately two-to-four months before she learned of the shooting.
The third Brady element was also not satisfied. There was no reasonable
probability that timely production of the exact date of defendant's comment to
Murphy would have led to a different result at trial. Defendant has not
demonstrated how this evidence would have affected the jury verdict, or that
A-1350-17T1
30
he would have changed his trial strategy if provided with this information
before trial. The fact that Murphy determined the exact date by checking the
records, as she had originally proposed, served to bolster her credibility, and
was entirely consistent with her initial statement. Moreover, the defense used
Ruga's failure to document the statement in an attempt to impeach both his and
Murphy's credibility, asking him whether he thought this information was
important.
Next, Murphy's statement that defendant said his wife was lazy and liked
to spent money, did not establish the first Brady element because it was clearly
not favorable to defendant, either as exculpatory or impeachment evidence.
There is no indication that the prosecutor had a record of the statement that
was taken just two weeks before trial. Nor was there was a reasonable
probability that the timely production of the statement would have led to a
different result at trial. Defense counsel thoroughly cross-examined Murphy
on this statement, which she admitted she was only seventy-five percent sure
of as to the exact wording. The defense also knew, based on defendant's own
statement, that Lynn liked to spend money, and based on statements by
Christopher and Gloria, that the State intended to show defendant's motive for
killing Lynn was to gain access to her money.
A-1350-17T1
31
Carlin's statement that he had not shown a photo of defendant to
Murphy, and that Murphy had not mentioned defendant's statement about
wanting to kill his wife to him, was favorable to the defense as impeachment
evidence. Nonetheless, the second Brady element was not established because
the State did not suppress this evidence. The State provided Carlin's name to
the defense in discovery. The Prosecutor's Office did not actually interview
him until after the trial had started, and promptly submitted his recorded
statement.
Defendant argues the failure to timely disclose this evidence prevented
him from conducting an effective cross examination of Murphy, who he
contends was the "pivotal" witness in this case. We disagree. Although
Carlin's statement was produced after Murphy testified, the defense called
Carlin as a witness and used his testimony to its advantage to impeach both
Murphy's and Ruga's credibility.
Additionally, defendant has not demonstrated that there is a reasonable
probability that earlier production of the allegedly withheld evidence would
have led to a different result at trial. Carlin's statement was not an important
piece of evidence because Murphy's testimony was not the only, or even the
primary evidence, that defendant murdered his wife. The State presented
evidence that defendant would have been able to immediately distinguish the
A-1350-17T1
32
difference between the 12-gauge buckshot shell used to kill Lynn, and the snap
cap he said he thought he had loaded into the gun. The State also presented
evidence that cast doubt on defendant’s version of the events, in that cleaning
a shotgun was messy and usually causes an area to get dirty, yet the light-
colored carpet in the area where defendant purportedly cleaned the gun was
"very clean." Further, defendant's actions after Lynn's death, and his
comments in his statement about Lynn's expensive tastes and relationship with
Karrer, who he called "a f***king redneck, scum," supported the theory that
defendant murdered his wife because he was jealous and did not want her to
find out that he had taken the cash out of the safety deposit box. Christopher's
testimony regarding defendant's actions after his mother's death bolstered this
theory of the case.
This case is readily distinguishable from Brown, on which defendant
relies, where the prosecution failed to produce, until one week into defendants'
murder trial, nineteen discovery items, including eighteen reports and an
affidavit, which had been in their possession. 236 N.J. at 502. The Brown
Court found that all three Brady elements had been established. Id. at 503.
We find that no abuse of discretion in denying defendant's request for
sanctions under Rule 3:13-3(f). Although courts have the inherent power to
dismiss an indictment when the State fails to comply with discovery rules
A-1350-17T1
33
under Rule 3:13-3(f), State v. Abbati, 99 N.J. 418, 429 (1985), "[b]efore
dismissal of an indictment is warranted" based on a discovery violation "there
must be a finding of intention inconsistent with fair play and therefore
inconsistent with due process, or an egregious carelessness or prosecutorial
excess tantamount to suppression," State v. Laganella, 144 N.J. Super. 268,
282 (App. Div. 1976). "In the absence of these conditions, the right of the
public to its day in court in the prosecution of properly found indictments
should be forfeited only if otherwise there would be manifest and harmful
prejudice to defendant." Id. at 282-83.
Here, defendant failed to establish that the State violated the discovery
rules or infringed upon his due process rights by violating the commands of
Brady. We conclude the trial judge did not err in denying defendant's motions
to strike Murphy's testimony or to dismiss the indictment, or by otherwise
denying his request for sanctions under Rule 3:13-3(f).
III.
Prior to trial, defendant moved to suppress his statement to the police on
the basis that it was not voluntary, and because he did not "have the
appropriate mental state to make a knowing, voluntary, and intelligent waiver"
of his Miranda rights. He argues in Point II that the court erred in failing to
rule on the voluntariness of his statement to the police, and in Point IV that the
A-1350-17T1
34
court erred in denying his motion to suppress the statement because as a result
of his "distraught mental condition" he "did not have the capacity to either
understand the ramifications of a waiver of his rights, or to knowingly or
voluntarily waive them." We are unpersuaded.
During the two-day N.J.R.E. 104(c) hearing on the suppression motion,
the judge, who had had access to the entire video-recorded interview, watched
several portions of the interview, including the sections where defendant was
read and waived his Miranda rights, where he described the shooting, and
where the detective told him that his wife was dead. The judge also heard
testimony from three witnesses: Jamerson; Detective William Hanton, Jr., of
the Prosecutor's Office; and defendant.
Jamerson testified at the hearing, consistent with his testimony at trial,
that upon arrival on the day of the incident he heard defendant "yelling and
screaming" that "I shot my wife," and that "[i]t was supposed to be a dummy
round." He said defendant was crying and seemed "visibly upset." He recalled
that Spencer asked defendant to sit on the ground because defendant did not
seem mentally stable due to the circumstances. Jamerson wrote in his report
that "[d]ue to [defendant's] altered mental status and continuous verbal
outbursts, he was detained using handcuffs and secured in the rear" of the
patrol car during transport to the Prosecutor's Office. Jamerson did not
A-1350-17T1
35
respond when defendant asked if they were taking him to the hospital to see
his wife.
Hanton, who did not testify at trial, testified at the hearing that upon
arrival at the Prosecutor's Office, defendant was handcuffed and was wearing
boxer shorts, a tee shirt, and had a blanket. Hanton removed defendant's
handcuffs and read him his Miranda rights. Defendant then signed the waiver
form. During the interview, which began at 11:37 p.m., the officers allowed
defendant to keep the blanket for his comfort, gave him a water bottle, and
allowed him to use the bathroom.
Hanton testified that defendant was upset and "went back and forth
between being distraught and being able to speak rationally and calmly ." He
said that defendant was able to give a statement and "very clear in the thin gs
he told me in his statement, what happened that night and how she died ."
Although defendant asked several times how his wife was, Hanton did not
respond at first because his job was to take a statement and he did not want "to
make [defendant] more upset." Hanton also "felt [that defendant] knew that
his wife had passed away" because defendant had touched her body after he
shot her and "had blood on his hands."
Defendant testified at the hearing that he believed the officers were
transporting him to the hospital to see his wife after the incident. He claimed
A-1350-17T1
36
he did not remember having been read his Miranda rights, or signing the
waiver form, and that the only thing on his mind was that he wanted to see his
wife. He also claimed he did not recall his statements to the officers or that
the officers told him that his wife had died, stating that his "mind is lost" and
that he had "never acted like that in [his] whole life." He admitted that the
officers "were nice people," and that he felt "very, very secure" when he got to
the Prosecutor's Office, and "very comfortable" speaking to the officers. He
also acknowledged that he was not threatened or intimidated by the officers
and was happy to tell them the truth about what happened that night so that he
could see his wife.
The motion judge denied the motion to suppress finding that defendant
had "made a knowing, intelligent, and voluntary waiver" of his Miranda rights.
The judge found that it "was very clear" from reviewing the video that
"although [defendant] had alternating states of mind throughout the
proceeding," he was at times "very calm and collected," and appeared to
understand his rights and "entered into a knowing and voluntary waiver of
those rights prior to be questioned."
The judge further concluded there was no evidence that defendant's
statement was coerced by the officers' conduct. He noted defendant's
testimony that "everyone that questioned him [and] that he came into contact
A-1350-17T1
37
with was very kind to him. It was very cordial." Defendant "felt safe and
secure around law enforcement since his son is a state trooper, and he was very
proud of his son's career choice." The judge determined this was not a setting
where defendant "was uncomfortable or . . . felt that any of the law
enforcement officers were mistreating him or trying to manipulate him in any
fashion."
Moreover, in assessing the circumstances surrounding the interview, the
judge found the officers removed defendant's handcuffs prior to questioning
him, the officers gave him a blanket to preserve his dignity and to keep him
warm, the interview was relatively short, and the officers gave defendant an
opportunity "to cut off the questioning" every time they came back in the
room. The judge determined defendant "was a willing participant here. He
wanted to tell his story."
The judge also concluded that the police had no obligation under
Miranda to inform defendant early on during the interview that his wife had
died. On the contrary, the judge found that defendant's argument that he had
not voluntarily waived his rights as a result of his mental state may have been
stronger if the interviewers had told defendant his wife had died at the outset
of the interview. The judge theorized that if defendant had been told early on
that his wife had died, his reaction may have been even more extreme than
A-1350-17T1
38
"what we saw in the video" and "he wouldn't have been able to go further in
the questioning." Instead, the officers waited well into the questioning, and
then they informed defendant about his wife and "as suspected, he was very,
very emotional."
The judge held that defendant's statement was admissible. At that point,
defense counsel clarified that the motion was two-fold, first whether there was
a knowing, intelligent, and voluntary waiver, which the judge found, and
second whether the statement itself was knowing, intelligent and voluntary.
As to the second issue, the prosecutor responded it was a jury issue. The judge
agreed with the State, noting the jury will watch the statement and "test"
defendant's state of mind. The judge reiterated his finding that defendant
"made a knowing, voluntary, intelligent waiver of his Miranda rights" and
"was given sufficient opportunity to cut off questioning, sufficient opportunity
to request an attorney."
Although he initially stated he was not going to make a finding as to the
voluntariness of the statement, the judge then said that he would "go even
further," and made findings as to the voluntariness of the statement by
distinguishing this case from State v. Pickles, 46 N.J. 542 (1966), a case cited
by defense counsel. The judge noted the defendant in Pickles was taking
A-1350-17T1
39
medication which affected her ability to provide a knowing, willing, voluntary,
and intelligent statement. "We don't have those circumstances here."
"Appellate courts reviewing a grant or denial of a motion to suppress
must uphold the factual findings underlying the trial court's decision so long as
those findings are supported by sufficient credible evidence in the record."
State v. Gamble, 218 N.J. 412, 424 (2014). "[A] trial court's findings should
be disturbed only if they are so clearly mistaken 'that the interests of justice
demand intervention and correction.'" State v. A.M., 237 N.J. 384, 395 (2019)
(quoting State v. Elders, 192 N.J. 224, 244 (2007)). "That standard governs
appellate review even when the trial court's findings are premised on a
recording or documentary evidence that the appellate court may also review."
State v. Tillery, 238 N.J. 293, 314 (2019).
A. Voluntariness of Defendant's Statement
On appeal, defendant argues the motion judge erred in refusing to rule
on the voluntariness of his statement, thereby mandating that his statement
should be suppressed and excluded from evidence. We disagree because we
find the judge both explicitly and implicitly made findings on the voluntariness
of the statement in addressing the Miranda waiver issue.
"[T]he Fifth Amendment to the United States Constitution, applicable to
the States through the Fourteenth Amendment, guarantees the right against
A-1350-17T1
40
self-incrimination[.]" W.B., 205 N.J. at 604-05 (footnote and citations
omitted). "Inherent in every Fifth Amendment analysis is the question of
whether the statement was voluntary, and, independently, whether the law
enforcement officers taking it complied with Miranda." Id. at 605.
The State has the affirmative duty to prove beyond a reasonable doubt,
"both that the defendant's statement was voluntary and, if custodial, that the
defendant was advised of his rights and knowingly, voluntarily and
intelligently waived them." Id. at 602 n.3.
A reviewing court "should engage in a 'searching and critical' review of
the record to ensure protection of a defendant's constitutional rights." State v.
L.H., 239 N.J. 22, 47 (2019) (quoting State v. Hreha, 217 N.J. 368, 381-82
(2014)). "Subject to that caveat," reviewing courts "generally will defer to a
trial court's factual findings concerning the voluntariness of a confession that
are based on sufficient credible evidence in the record." Ibid.
Although it is not entirely clear, the motion judge's comments seemingly
referred to the jury's role in determining the credibility and reliability of the
statement and the evidential weight it should be given. See W.B., 205 N.J. at
605 n.7 (defendant produced witnesses to testify that he was tired and
intoxicated before being taken to headquarters, but that evidence was relevant
only to the jury's evaluation of the credibility and "reliability" of the statement
A-1350-17T1
41
under N.J.R.E. 104(c)); State v. Rosales, 202 N.J. 549, 566-67 (2010)
(recognizing that expert psychiatric testimony regarding the validity of a
defendant's confession may be permitted in some cases); State v. King, 387 N.J. Super. 522, 550 (App. Div. 2006) (permitting psychiatric testimony about
the defendant's personality disorder as relevant to defendant's false confession
claim). See also Crane v. Kentucky, 476 U.S. 683, 689 (1986) (confessions,
even if found to be voluntary, are not conclusive of guilt and may be shown to
be "unworthy of belief").
Nonetheless, the judge briefly, but explicitly, addressed defendant's
argument that he did not have the mental state to make a voluntary statement
by distinguishing Pickles. In that case, the police interrogated the defendant
about her infant son's death immediately after the child's funeral. 46 N.J. at
572. During the interrogation the defendant was sobbing, shaking, trembling,
distraught, and so "emotionally upset" that the police asked a matron to come
into the room, who placed an ammoniated capsule under the defendant's nose
and gave her a "drink of spirits of ammonia." Ibid.
The Pickles Court found that the defendant's condition rendered her
"easy prey to interrogative pressure. The need for the medication administered
to her by the court matron, to which the detectives seemed to close their eyes,
plainly revealed her physical and mental weakness, and should have been
A-1350-17T1
42
sufficient warning to stay their hand." Id. at 577. Thus, the circumstances
attending the taking of the incriminating statement satisfied the Court that
"they were so oppressively coercive and fundamentally unfair in their totality
as to require the conclusion that the statement was not voluntary in the
constitutional sense." Id. at 578. Here, the motion judge found the facts were
"very, very distinct" from Pickles for "all of the reasons argued by the State,"
including that the officers in Pickles had to arrange to administer medication to
the defendant to calm her down sufficiently to be able to give a statement.
Moreover, as the State contends, viewed in their entirety, the motion
judge's findings implicitly support a conclusion that the statement was
voluntary. The judge, in addressing the Miranda waiver issue, considered the
totality of the circumstances as portrayed in the video-recording and by the
testimony, and considered the nature of the interrogation, the conduct of the
interviewers, defendant's responses to the questions, and his mental state
during the examination—factors that are also directly relevant and significant
in determining the voluntariness of his statement.
"Due process also requires that the State 'prove beyond a reasonable
doubt that a defendant's confession was voluntary and was not made because
the defendant's will was overborne.'" L.H., 239 N.J. at 42 (quoting State v.
Knight, 183 N.J. 449, 462 (2005)). "The due process test takes into
A-1350-17T1
43
consideration 'the totality of all the surrounding circumstances -- both the
characteristics of the accused and the details of the interrogation.'" Ibid.
(quoting Dickerson v. United States, 530 U.S. 428, 434 (2000) (quoting
Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973))). "The voluntariness
determination weighs the coercive psychological pressures brought to bear on
an individual to speak against his power to resist confessing." Id. at 43.
"[T]he factors relevant to the voluntariness analysis include 'the
suspect's age, education and intelligence, advice concerning constitutional
rights, length of detention, whether the questioning was repeated and
prolonged in nature, and whether physical punishment and mental exhaustion
were involved,' as well as previous encounters with law enforcement." L.H.,
239 N.J. at 43 (quoting Hreha, 217 N.J. at 383). "The real issue is whether the
person's decision to confess results from a change of mind rather than from an
overbearing of the suspect's will." State v. Galloway, 133 N.J. 631, 655
(1993).
The trial judge considered these factors, which are relevant in
determining whether a statement was voluntary, in addressing the Miranda
waiver issue. For example, the judge found that defendant was read his
Miranda rights and voluntarily waived them, he was detained for only three
hours during which he was given a blanket to keep him warm, he admitted that
A-1350-17T1
44
he felt "very comfortable and secure," and every time the investigators left the
room they gave defendant an opportunity to cut off the questioning. The judge
also found the police did not engage in overreaching or overbearing conduct
during the interrogation as evidenced by defendant's comfort level in dealing
with them. The judge further found that the officers were not obligated to tell
defendant that his wife had died at the beginning of the interrogation, nor did
they misrepresent that fact during the interrogation. Cf. State v. Patton, 362 N.J. Super. 16, 46 (App. Div. 2003) (fabrication of evidence by police to elicit
a confession violates due process, and any resulting confession is per se
inadmissible).
Although there is evidence defendant was very emotional at times during
the interrogation, he also acted calm and collected at times, and he recounted
in detail the events leading up to Lynn's death. As the judge found, the record
clearly demonstrates that despite defendant's emotional state, he had the ability
to understand and voluntarily and knowingly waive his Miranda rights. See
State v. Smith, 307 N.J. Super. 1, 10 (App. Div. 1997) (the fact that the
defendant was suffering from a mental illness at the time of the questioning
did not render his waiver or his statement involuntary); State v. Glover, 230 N.J. Super. 333, 342 (App. Div. 1988) (the court found that the record clearly
demonstrated that the defendant's ability to make free and rational choices
A-1350-17T1
45
when interrogated by the police was not "overborne by defendant's severe
mental illness").
Moreover, as we have noted, defendant stated that the officers "were
nice people," and that he felt "very, very secure" when he got to the
Prosecutor's Office, and "very comfortable" speaking to the officers. He also
acknowledged that he was not threatened or intimidated by the officers and
was happy to tell them the truth about what happened that night so that he
could see his wife. This description significantly undermines any claim that
his will was overborne.
Significantly, although defendant was clearly emotional during segments
of his statement, he never wavered from his claim that Lynn's death was an
accident and that he thought he had loaded the gun with a snap cap. His
statement to the police was also consistent with his statements during his 9-1-1
call, and to Schnitzel and Spencer, and substantially in accord with his
testimony at trial. Despite his emotional state, defendant was strong enough to
resist confessing to intentionally shooting his wife even when the officers
asked him if he had pointed the gun at Lynn on purpose and why he shot her.
Thus, as in Glover, defendant's will was not overborne by his emotional state.
Further, any inconsistencies in his trial testimony, including whether he knew
the buckshot shells were in the bag on the day of the shooting, whether he
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learned that Karrer had given Lynn the buckshot shells at trial, and whether
they routinely cleaned the guns after they went shooting on Sundays, could be
considered by the jury in assessing the reliability of his statement.
Notably, defendant did not introduce any expert testimony or other
competent psychological or psychiatric evidence at the suppression motion
hearing that he was suffering from a mental illness that vitiated his ability to
voluntarily give a statement to the police. At most, defendant testified at the
hearing that he was hospitalized for seven to ten days because the psychiatrists
mistakenly interpreted his statement that he wanted to be with his wife as
meaning he wanted to be dead. No evidence of any diagnosis was introduced.
Defendant stated that the psychiatrist told him "you're grieving."
We conclude that the totality of all the circumstances, including both the
characteristics of the accused and the details of the interrogation, supports a
determination that defendant's will was not overborne, and his statement was
voluntary. While the motion judge could have made more specific findings,
we discern no error.
B. Waiver of Defendant's Miranda Rights
Defendant also argues that State did not prove beyond a reasonable
doubt that the waiver of his Miranda rights was made knowingly, intelligently,
and voluntarily. He argues that based on his mental state, he did not possess
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the mental faculties to listen to, understand, and make a knowing, intelligent,
and voluntary waiver of his rights. We disagree.
The motion judge's finding that defendant knowingly, intelligently, and
voluntarily waived his Miranda rights is supported by the substantial credible
evidence in the testimonial and videotaped record. The officers read defendant
his Miranda rights. Defendant said he understood them and signed a waiver
form. As the judge found, during the video-recorded interrogation, defendant
calmly said he understood his rights and agreed to waive them prior to being
questioned. Defendant testified that he felt very secure and comfortable when
talking to the officers. Defendant never asked to stop the questioning and did
not indicate he wanted to speak to an attorney.
The record amply supports the judge's finding that although defendant
was emotional, he was "a willing participant" and "wanted to tell his story."
Noticeably absent is any evidence that defendant was beset by a thought
disorder or otherwise unable to understand his rights and intelligently and
voluntarily waive them. Defendant's argument lacks sufficient merit to
warrant further discussion in this opinion. R. 2:11-3(e)(2).
IV.
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We next address defendant's argument that the prosecutor's comments on
facts not in evidence during summation deprived him of a fair trial. We are
unpersuaded.
The prosecutor began his summation by stating that he wanted to recount
"a story of murder and it's a story of the two oldest motives for murder human
history has ever come up with, it's a story of money and jealous[]y, and the
best part about this story is that it's a true story, true story." Defendant argues
the prosecutor made many misstatements of fact and stated facts not in
evidence, including that: (1) defendant gambled "four, five, six nights a week
and, look, gambling is an overnight business, so he's not home four, five, six
nights a week;" (2) if Lynn left him, he would get nothing because everything
was in her name; (3) defendant deliberately shot Lynn with a shotgun shell she
got from Karrer; (4) defendant staged the shooting when his wife was asleep;
and (5) defendant killed his wife to prevent her from leaving him with nothing.
The prosecutor also stated defendant said it was an accident, and "yet the
police don't believe him and his son doesn't believe him, and now his son has
the audacity to sue him to keep him from inheriting his mother's money."
At the beginning of the trial, the judge instructed the jury that they were
"the sole judges of the facts," and that comments by the attorneys were not
evidence. Immediately after the prosecutor's summation, the final charge
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included an instruction that they were "the sole and exclusive judges of the
evidence," and that "[a]rguments, statements, remarks, openings, closings of
counsel are not evidence and must not be treated as evidence."
While the jury was deliberating, the defense objected to certain factual
representations by the prosecutor in his summation. Counsel argued there was
no evidence defendant had spent four, five, or six nights sleeping over at the
Borgata, or that Lynn was planning on filing for divorce and if she did
defendant would get nothing, and that she had been unfaithful. The defense
requested a curative instruction that nothing counsel says in closing arguments
is evidence. The prosecutor countered that everything he said was well w ithin
fair comment based on the evidence presented at trial, and that the jury had
been instructed that arguments by counsel were not evidence.
The judge declined to issue a curative instruction, noting that the jury
had been instructed both in the initial and the final charge that they, not the
lawyers, were the judges of the facts.
In denying defendant's motion for a new trial, the judge found that there
was nothing in this record "to suggest that the State's argument in summation,
although forceful, somehow crossed the line and tainted the jury verdict."
"With regard to the motive and murder scene, [the judge] found the Prosecutor
drew from specific testimony and evidence in the record." As to arguments
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pertaining to defendant's credibility, the judge stated, "the record shows that
the Prosecutor simply made reference to discrepancies between the
Defendant's testimony and other parts of the record."
"'[P]rosecutors in criminal cases are expected to make vigorous and
forceful closing arguments to juries' and are therefore 'afforded considerable
leeway in closing arguments as long as their comments are reasonably related
to the scope of the evidence presented.'" State v. McNeil-Thomas, 238 N.J.
256, 275 (2019) (quoting State v. Frost, 158 N.J. 76, 82 (1999)). "[A]t the
same time [prosecutors must] help assure that the accused is treated fairly and
that justice is done.'" Id. at 274 (quoting State v. Mahoney, 188 N.J. 359, 376
(2006)).
"Consistent with their obligation to seek justice, prosecutors may not
advance improper arguments." State v. Lazo, 209 N.J. 9, 29 (2012). To that
end, prosecutors may not "make inaccurate legal or factual assertions" and
must "confine their comments to evidence revealed during the trial and
reasonable inferences to be drawn from that evidence." State v. Smith, 167 N.J. 158, 178 (2001). A legitimate inference can be "based on sharply
disputed facts in the record." McNeil-Thomas, 238 N.J. at 280 (quoting Lazo,
209 N.J. at 29). "Ultimately it [is] for the jury to decide whether to draw the
inferences the prosecutor urged." State v. Carter, 91 N.J. 86, 125 (1982).
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"Furthermore, even when a prosecutor's remarks stray over the line of
permissible commentary, our inquiry does not end." McNeil-Thomas, 238 N.J.
at 275. "[P]rosecutorial misconduct is not grounds for reversal of a criminal
conviction unless the conduct was so egregious as to deprive defendant of a
fair trial." State v. Timmendequas, 161 N.J. 515, 575 (1999).
"Prosecutorial comments are deemed to have violated the defendant's
right to a fair trial when they 'so infect[ ] the trial with unfairness as to make
the resulting conviction a denial of due process.'" State v. Jackson, 211 N.J.
394, 409 (2012) (alteration in original) (quoting State v. Koedatich, 112 N.J.
225, 338 (1988)). "[T]he prosecutor's conduct must have been 'clearly and
unmistakably improper,' and must have substantially prejudiced defendant's
fundamental right to have a jury fairly evaluate the merits of his defense."
Wakefield, 190 N.J. at 438 (quoting State v. Papasavvas (I), 163 N.J. 565, 625
(2000)).
Addressing each argument in turn, the prosecutor's comments that this
was a story of money and jealousy was reasonably related to the scope of the
evidence presented. Christopher and Gloria testified that defendant and Lynn
frequently argued about money, defendant knew about Lynn's life insurance
policy, defendant engaged in a lengthy legal battle over Lynn's estate, and
defendant had removed money from Lynn's safety deposit box prior to her
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death. There was also evidence that Karrer had introduced Lynn to target
shooting, Karrer often texted and called Lynn, defendant asked Christopher
and Gloria to tell Lynn to stop talking to Karrer, and Karrer had given Lynn
the buckshot as a gift. Notably, defendant called Karrer a "f***ing redneck,
scum," further supporting a legitimate inference that defendant was displeased
with his wife's contact with Karrer.
Next, the prosecutor's comment that defendant gambled "four, five, six
nights a week" and was not home on those nights, was supported by the
evidence. Defendant admitted that he gambled at the Borgata "approximately
four times a week," and his brother testified that defendant would gamble four
or five times a week. Defendant described himself as a professional poker
player, who had intended to "stay at the Borgata" on the night of Lynn's death
"and play overnight."
It was also a reasonable inference based on the evidence that if Lynn left
defendant, he would get nothing because everything was in her name, and that
he killed her to prevent her from doing that. Defendant stated that all their
assets had been placed in Lynn's name to protect their assets from creditors of
the restaurant, and that she "control[led]" their money, and "handled all the
finances." Defendant's only income was his disability check and any gambling
winnings. He did not have access to their checking account. Christopher
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testified that all his parents' assets were in his mother's name because his
mother did not trust defendant "with finances." Further, according to
Christopher, defendant removed approximately $80,000 from Lynn's safety
deposit box sometime prior to her death, without her knowledge or consent.
The evidence permitted an inference that defendant believed his wife would
not allow him to have access to the money and that his motive in murdering
her was money.
Defendant argues for the first time on appeal that the prosecutor's
comment that defendant deliberately shot Lynn with the shotgun shell she
received from Karrer was not supported by the evidence. There was, however,
evidence that Karrer had given Lynn the buckshot shell that killed her, and that
defendant was unhappy with the amount of contact that his wife had with
Karrer. Moreover, the failure to make a timely objection indicates that defense
counsel did not believe the remarks were prejudicial at the time they were
made and deprived the court of the opportunity to take curative action.
Timmendequas, 161 N.J. at 576.
Defendant also argues for the first time on appeal that the prosecutor's
comment that defendant waited until Lynn was sleeping before he staged the
shooting was not supported by the evidence. He considers this the "most
egregious" of the prosecutor's statements. There was evidence that Lynn was
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54
asleep when she was shot. The shooting occurred at approximately 9:30 p.m.,
the only light was from the television and a candle, Lynn was lying on the
couch under a blanket, she was wearing pajamas, and the medical examiner
concluded that her eyes were closed when she was shot.
Lastly, defendant argues the prosecutor committed misconduct in stating
that "the police don't believe him and his son doesn't believe him, and now his
son has the audacity to sue him to keep him from inheriting his mother's
money." As the trial judge found, the prosecutor did not express his personal
opinion as to defendant's credibility. See State v. Jenkins, 299 N.J. Super. 61,
70 (App. Div. 1997) (a prosecutor has the right to call to the jury's attention
discrepancies in a defendant's testimony and then argue that the defendant was
not truthful, but cannot express a personal opinion regarding the credibility of
a defendant's testimony). Nor did the prosecutor express a personal opinion
about the officers' and Christopher's credibility, and instead based the
comments on evidence presented at trial.
The trial judge properly found the prosecutor did not engage in
misconduct during summation. The prosecutor's comments were confined to
the evidence and reasonable inferences to be drawn from that evidence. Nor
were the prosecutor's comments "so egregious as to deprive defendant of a fair
trial." Timmendequas, 161 N.J. at 575. We discern no error.
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V.
Defendant moved for a new trial pursuant to Rule 3:20-1 based on the
alleged willful discovery violations by the State, prosecutorial misconduct
during summation, and the insufficiency of the credible evidence to prove
knowing and purposeful murder beyond a reasonable doubt.2 The trial judge
denied the motion, finding the verdict was not against the weight of the
evidence.
A jury verdict shall not be set aside "as against the weight of the
evidence unless, having given due regard to the opportunity of the jury to pass
upon the credibility of the witnesses, it clearly and convincingly appears that
there was a manifest denial of justice under the law." R. 3:20-1.
"[A] motion for a new trial is addressed to the sound discretion of the
trial judge, and the exercise of that discretion will not be interfered with on
appeal unless a clear abuse has been shown." State v. Armour, 446 N.J. Super.
295, 306 (App. Div. 2016) (alteration in original) (quoting State v. Russo, 333 N.J. Super. 119, 137 (App. Div. 2000)). "There is no 'miscarriage of justice'
when 'any trier of fact could rationally have found beyond a reasonable doubt
2
As we have already rejected defendant's arguments that the prosecutor
committed willful discovery violations and engaged in misconduct during
summation, we will not readdress those issues here.
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56
that the essential elements of the crime were present.'" Jackson, 211 N.J. at
413-14 (quoting State v. Afanador, 134 N.J. 162, 178 (1993)). We "must
weigh heavily the trial court's 'views of credibility of witnesses, their
demeanor, and [its] general feel of the case.'" Carter, 91 N.J. at 96 (alteration
in original) (quoting State v. Sims, 65 N.J. 359, 373 (1974)).
Applying those principles, we concur with the trial judge that the verdict
was not against the weight of the evidence. The jury could rationally have
found beyond a reasonable doubt that the elements of purposeful and knowing
murder were present. To that end, a reasonable jury could find defendant
intentionally shot his wife based upon the evidence that she sustained a
gunshot wound to the head, was shot at close range, her eyes were closed, it
should have been immediately apparent to defendant that he was loading a live
shell into the shotgun, and defendant acted out of jealousy and had a financial
motive to kill her.
VI.
Finally, defendant argues that the cumulative effect of the trial court's
errors deprived him of a fair trial. We find no merit to this argument.
Our Supreme Court has "recognized . . . that even when an individual
error or series of errors does not rise to reversible error, when considered in
combination, their cumulative effect can cast sufficient doubt on a verdict to
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require reversal." State v. Jenewicz, 193 N.J. 440, 473 (2008). "Where the
aggregation of legal errors renders a trial unfair, a new trial is required." State
v. T.J.M., 220 N.J. 220, 238 (2015). However, the principle of cumulative
error does not apply "where no error was prejudicial and the trial was fair."
Ibid. (quoting State v. Weaver, 219 N.J. 131, 155 (2014)).
Defendant has not demonstrated any prejudicial error occurred.
Accordingly, the principle of cumulative error has no application.
Affirmed.
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