Opinion
DOCKET NO. A-5031-08T4
2013-10-16
STATE OF NEW JERSEY, Plaintiff-Respondent, v. GEORGE JENEWICZ, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Karen E. Truncale, Assistant Deputy Public Defender, of counsel and on the brief). Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Harris and Koblitz.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 99-01-0031.
Joseph E. Krakora, Public Defender, attorney for appellant (Karen E. Truncale, Assistant Deputy Public Defender, of counsel and on the brief).
Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Assistant Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
The opinion of the court was delivered by FUENTES, P.J.A.D.
Defendant George Jenewicz was tried before a jury and convicted of murder, N.J.S.A. 2C:11-3(a)(1)(2), second degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a), and third degree hindering apprehension, N.J.S.A. 2C:29-3(b). After merging the murder conviction with the second degree conviction for weapons possession, the court sentenced defendant to a term of life imprisonment with a thirty-year period of parole ineligibility, and a consecutive term of five years, with two-and-a-half years of parole ineligibility, for the hindering apprehension conviction.
On direct appeal, we affirmed the conviction and sentence in an unpublished opinion, State v. Jenewicz, Docket No. A-0013-02 (App. Div. Aug. 8, 2006). The Supreme Court granted defendant's petition for certification, State v. Jenewicz, 189 N.J. 103 (2006), and thereafter reversed the murder conviction and remanded the matter for a new trial. State v. Jenewicz, 193 N.J. 440 (2008).
Defendant was retried before a jury over the course of seven days in September 2008 on the charges of murder, N.J.S.A. 2C:11-3(a)(1)(2), and second degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a). The jury found defendant guilty of both charges. The trial court again sentenced defendant to life imprisonment with a thirty-year period of parole ineligibility, and awarded defendant 1,597 days of jail time credit pursuant to Rule 3:21-8.
Defendant now appeals this second conviction. We affirm. We gather the following facts from the evidence presented to the jury at the second trial.
I
Defendant committed these crimes almost fifteen years ago. At approximately 9:30 in the evening of October 30, 1998, Iwan Terenin and Leonid Chernyavskiy drove to the Borough of South River Police Department to report what they believed was evidence of a dead body at defendant's residence on Cleveland Avenue. In response, Police Officer John Casey and five other South River police officers drove Terenin and Chernyavskiy to defendant's residence. Casey did not disclose to the jury the reasons that prompted him and five of his fellow officers to respond to this location.
At the time this case was tried for a second time ten years later in 2008, Officer Casey had risen to the rank of Lieutenant.
The jury subsequently learned, however, that Terenin and Chernyavskiy had been to defendant's residence earlier and upon arriving, immediately detected a strong foul odor emanating from inside defendant's home. They both associated this smell with that which would come from a decaying corpse, possibly located somewhere inside the house.
After Terenin and Chernyavskiy confirmed that this was the house in question, Casey deployed three officers to the rear of the residence, while he and two other officers "went to the front door." According to Casey, when he knocked on the door, "[a]ll the lights were out in the residence." Defendant answered the door "[a]fter a short period of time." Casey told defendant he and his fellow officers wanted to speak to him. At Casey's request, defendant permitted him and three other officers to come inside the house.
Overruling defense counsel's objection, presumably on hearsay grounds, the trial judge permitted Casey to testify that he told defendant "that the two witnesses pointed out his house, that there was possibly a dead body located in that residence of . . . Cleveland Avenue." Casey also asked defendant "if [he] could look around the residence to see if there was a dead body in the residence." Casey testified that immediately after defendant consented to his request "to look around," defendant said: "that fucking bitch and immediately urinated himself to the point where there was a puddle on the floor."
Based on defendant's reaction, the officers at the scene began searching defendant's home. The search soon ended when one of the officers told Casey to go "to the basement area." As he descended the staircase that lead to the basement, Casey "smelled an extremely foul odor coming from the basement area." Because the basement was "pretty dark," the officers used their flashlights to search the area. Casey and two other officers eventually found "a gray metal garbage can with a black bag sticking up out of the garbage can." The can was located underneath the basement stairwell.
Casey asked one of the officers to use a knife to "cut the garbage bag open" in order to see what it contained. Although not entirely discernible at first, upon closer inspection Casey and the two other officers with him "observed what appeared to be human legs and feet." At this point, Casey "immediately returned upstairs and met [defendant] at which time I read him his Miranda rights." The prosecutor asked Casey to identify a number of photographs that depicted the basement area and the garbage can where the human remains were found. Casey also identified a number of other photographs depicting aerial views of the area adjacent to defendant's house and the neighborhood surrounding the property, including "Varga Park," also known at one time as "Pacer's Field."
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
In addition to verbally informing defendant of his constitutional rights under Miranda at his residence, Casey testified that he "administered his Miranda rights again" after defendant arrived at the South River police headquarters. Casey wrote "10/30/98 at 10:20 p.m." on the Miranda card he read to defendant at the police station. By this time, defendant was clearly in police custody; he had been placed in handcuffs and his person had been searched incident to his arrest.
After completing this preliminary process, Casey notified the Middlesex County Prosecutor's Office Major Crimes Unit, his superiors within his own department, and the Medical Examiner's office. Law Enforcement personnel soon arrived at the crime scene with illumination equipment and additional officers and investigators were dispatched to search the area around defendant's residence. No relevant evidence was found that night.
South River Police Officer Edward Avallon was one of the officers who initially responded to defendant's residence and accompanied Casey to the basement. Avallon corroborated Casey's testimony in all material respects. Avallon also testified that he found a "pocket knife" on defendant's person. South River Police Officer John J. McKenna was also present at defendant's residence on the night in question. He likewise corroborated Casey's and Avallon's testimony as to their interactions with defendant.
South River Police Lieutenant Mark Tinitigan fingerprinted and photographed defendant at the police station on the night of his arrest. Tinitigan testified that at some point while he was taking defendant's fingerprints and photographing him for purposes of his arrest, defendant asked him: "what kind of firearms does the South River Police Department carry[?]" Tinitigan responded: "we carry a Smith and Wesson .40 caliber handgun." According to Tinitigan, without further inquiry or comment by him, defendant stated "that he carried a .357 and replied that's what he used to kill her with."
Tinitigan testified that he "immediately stopped doing what I was doing. I Mirandized him. I gave him Miranda rights." In response to the prosecutor's question, Tinitigan identified a "Miranda rights card" with the date "October 30th of 1998," and the time "11:08 [p.m.]" Tinitigan testified that he read to defendant the Miranda warnings written on the reverse side of the card. According to Tinitigan, he asked defendant if he understood what he had read to him and then asked him to sign the card. Defendant replied that he would not sign the card "because he wouldn't be able to talk."
According to Tinitigan, defendant "explained that she [the victim] was always assaulting him because he wouldn't allow her to buy drugs and that she would never assault him ever again because he killed her -- I'm sorry, because she is dead." Tinitigan also testified that defendant never called the victim by name, always using a pronoun like "her" instead. Tinitigan also said defendant identified himself as a "biologist" and a "hunter," and claimed to know how to "chop up a body and that he chopped up the body into pieces and it would never be found."
At approximately one o'clock in the morning on October 31, 1998, three days after defendant's initial arrest, South River Police Officer Gary Migut and Middlesex County Prosecutor's Investigator John Maslak again apprised defendant of his constitutional rights under Miranda before they began asking him questions concerning his involvement with the alleged homicide. Defendant signed the Miranda card documenting his understanding of those rights, and acknowledging his decision to waive his rights and voluntarily answer the investigators' questions concerning his involvement in this crime.
Officer Migut testified that before the interrogation began, defendant asked if he was going to jail. Migut stated that both Maslak and he told defendant that he would probably go to jail. At this point, Migut testified that defendant responded: "she's fucking up my house, there's spackling everywhere." After conducting what law enforcement agents in 1998 called "a pre-interview," Migut testified that defendant agreed to give "an audiotape statement" that allegedly repeated what he had just told Migut during the pre-interview.
The practice of interrogating a defendant without a contemporaneous audiovisual electronic recordation of the interrogation is now prohibited absent the State establishing one of the specifically enumerated exemptions outlined in Rule 3:17(b).
Defendant made the following statements during the recorded part of the interrogation.
Q. Well, I can't tell you whether you're, what you just described, but what I want to do is get in your own words what happened ten days ago. If you're willing to give me a statement.
A. She went nuts on me.
Q. Okay. When did she go nuts on you, when did this occur?
A. That . . . she did it a bunch of times. I got knots on my head, I got bruises, I got . . . I'm bent out of shape. She would hit me with sticks and shit like that. Basically it was like, like a self-defense type of thing.
Q. Okay.
A. Alright?
Q. Okay. So bringing your attention back to last Thursday . . .
A. Yes.
Q. Okay.
A. She was going out again.
Q. Okay. When you refer to she, what was her name.
A. Um, well I called her Nadine.
Q. Okay.
A. Her name is Eunice.
Q. Do you know her last name?
A. Uh, Gillens.
Q. Okay. Now did Eunice live with you at your address?
A. Yes.
Q. Okay. Approx . . . .
A. Part time actually, but . . . uh, yeah.
Q. How long did she live there?
A. Five months — almost.
Q. Almost five months?
A. Yeah.
Q. And bringing your attention back to the 22nd, [of October 1998] which was last Thursday, did you have an argument with Nadine?
A. She inspired arguments, which would take her out of the home to pursue her hobbies. Alright? I'll describe them as that. Alright? And . . . it was just a . . . it was like twice a month. It was a regular happening. I mean . . .
Q. Okay. So you argued quite a bit. Okay.
A. She had to pursue this.
Q. Okay. Tell me what happened last Thursday, to the best of your . . .
A. Yeah, Yeah, to the best of my knowledge? Um, Yeah. We had an argument. To simplify it, she went for a gun, which she's done before, and I just picked up another one . . . I, I have a number of guns, picked up a number . . . and I just, I shot.
Q. And did you, did it strike Nadine?
A. Yes, it did.
Q. Do you know where it struck her?
A. Yes I do.
Q. Can you tell us where that was?
A. Bulls eye in the chest.
Q. In the chest area?
A. Yes.
Q. Okay and then what happened? Tell me exactly what occurred from that point on.
A. She went right down. It was a heavy caliber load. In fact, 158 grain. She lay on the floor._She went right down instantly. And I tried to revive her, this and that. And being a hunter, I know, you know, it was over. I knew it was over. So I just uh, helped. I still tried to pound on her chest. I tried to bring her back, this and that, and it didn't . . . there was . . . I knew she was dead.
Q. Okay, and then what did you do?
A. Took her down the basement.
Q. Okay, and what occurred in the basement?
A. She just laid there, you know, I just let her lay there, and I thought about it. It was like holy shit! What the fuck did I do to . . . you know. I'm not that kind of guy. What did I do? So, I tried to hide it. You know, go that way. Severed her head, severed her arms.
Q. Okay. Um. Where did you put the remaining portion of Nadine?
A. Uh, remaining? You found the remaining, you know . . .
Q. You stated you severed her head and her arms?
A. Yeah.
Q. What did you use to do that?
A. A saw, an axe.
Q. Okay. Do you recall where you left those items?
A. In the sink.
Q. Okay. Was . . . did you wrap her in anything, the, the rest of . . . each . . .
A. Oh yeah, yeah. Double bagged her in Glad Bags, you know. Dumped a . . . you know. I mean there is a stink involved. It's been a week.
Q. What did you use to clean . . . did you use anything to clean up?
A. Just water.
Q. Any, any . . . to clean the floor.
A. Nothing special.
Q. Did you use a mop, a broom?
A. A mop, yeah.
Q. Where was the mop left, do you recall?
A. Guess it's still in the basement; probably in the sink.
Q. Did you put anything on the floor when you severed her arms and her head?
A. A piece of plywood.
Q. Where is that at now?
A. Mmmmm? In the backyard.
Q. Okay. Do you recall wh . . . .
A. A piece of plywood.
Q. Just a piece of plywood?
A. Yeah.
Q. Do you recall where you put her, do you recall where you put her arms at? Where would that be?
A. This is a difficult point here.
Q. I understand.
A. No. As far as a lawyer, talking to a lawyer and this and that.
Q. If you . . . you can stop at any time, any time you wish, you can stop speaking with us.
A. Can you cut it?
Q. If you wish, I could stop the tape.
A. Cut the tape.
Q. Okay. The time is approximately 1:50 a.m. We're back on tape. You have the right to remain silent, do you understand that?
A. Yes.
Q. Anything you say can be used in a court of law, do you understand that?
A. Yes.
Q. You have the right to talk to a lawyer and have a lawyer present with you while you are being questioned. Do you understand that?
A. Yes.
Q. If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning if you wish one, do you understand that?
A. Yes. I would wish one.
Q. From this point on, you want an attorney.
A. Mmmm, well, no. I'll continue but I whe, whe, where's — is that where it starts?
Q. Do you, do you want an attorney with you before anymore questioning, yes or no?
A. Uh . . . no.
Q. You can decide to exercise these rights at any time. Alright. Prior to ending the first statement, you stated that you brought Nadine into the basement. Is that correct?
A. After her death?
Q. Yes.
A. Correct.
Q. Okay. Tell us what occurred from then, at that point.
A. I kind of panicked and I decided to cover it up. So I uh, took parts of her body off.
Q. And where did you put these parts?
A. Various places. Skull was being boiled out. The arms located on the southeast corner Pacer's Field.
Q. You said the arms?
A. Arms.
Q. Okay. Did you carry those to that location?
A. Correct.
Q. Okay. Were they in anything when you carried them there?
A. Yeah. Plastic bag, you know.
Q. And once you got there what did you do?
A. Just threw them into the weeds.
Q. And you said you boiled out the skull.
A. You know, so far, yeah.
Q. What, what, tell us what, what did you do actually.
A. Just boiled out the skull.
Q. Meaning you took the, the, Nadine's head and you boiled her head?
A. Yeah.
Q. And then where did you put it?
A. It still was in the oven when I . . . it was discovered.
Q. And the weapon that you used to shoot Nadine with, were, were . . .
A. I didn't shoot her. Well, yeah, okay.
Q. Well tell us . . . you stated earlier that . . .
A. It just happened to be that weapon.
Q. Okay, and where did you put that weapon?
A. Uh, it's in the pool table.
Q. Where is it in the pool table, describe it.
A. Mmmm — underneath. Against the wall, there's a slot underneath. There's a pellet gun under there, then there's also . . . there'll be a bag that it comes in, you know, this carrying . . . it's a bag. It's a . . . . for a hand gun. It's not loaded.
Q. Okay. Detective Migut, do you have any questions?
Migut: No.
Q. The time is approximately 1:58 a.m. The date is still October 31, 1998. George, were you forced, coerced or promised anything to give this statement?
A. No. Just my own conscience.
Q. You gave this statement from your own free will.
A Yeah. My own conscience man. It's to God.
[Emphasis added].
After defendant's statement concluded, police officers conducted a limited search of the park area at around 2:25 a.m. on October 31, 1998. Impeded by the darkness, the officers resumed the search after sunrise. Later that morning, and aided by police dogs, the officers found several parts of human remains that were later identified as pieces of the victim's arms.
Migut testified that he and fellow South River Police Officer DeGaetano were assigned the duty of transporting defendant to the Middlesex County Correctional Facility in North Brunswick. Migut was the driver and DeGaetano sat by his side in the front passenger seat. Defendant sat in the rear passenger side of the vehicle that is reserved for prisoner transport. Because the investigation of the crime had fallen on Halloween, Migut commented to DeGaetano while en route about how this may affect his ability to take his children "trick or treating." Migut testified that at one point during his conversation with DeGaetano, defendant spontaneously "blurted out" the following statement. In Migut's words:
In quotations I have he was going to put the skull [of the victim] out for a Halloween decoration after he finished boiling it down
or I have the words initially it should be[:] I was going to put the skull out for a Halloween decoration after I finished boiling it down.
When the prosecutor asked Migut whether he or DeGaetano responded in any way to defendant's statement, Migut responded: "I didn't say a word. I never heard anything like that in my life. It was outrageous." This prompted an immediate objection by defense counsel. After sustaining the objection, the trial judge admonished the jury to "disregard the last statement of the lieutenant. That's a conclusion, not an observation, of his."
Middlesex County Prosecutor's Investigator Joseph Taussi reported to defendant's house a little before midnight on the night of defendant's arrest. Taussi was responsible for photographing the crime scene and preserving forensic evidence for processing. Because defendant indicated he shot the victim in the master bedroom, Taussi testified that he noticed spackling on the wall of this bedroom, to the right of the doorknob. Police officers retrieved a .38/.357 caliber bullet embedded in the wall, behind the fresh spackling. A firearms/ballistic expert who examined the bullet opined it had been fired from the weapon that killed the victim.
Taussi found underneath the bed a "Thompson .50 caliber," muzzle loaded long rifle. According to Taussi, the rifle was unloaded. "The hammer on the gun was in the cocked position." Taussi also found "a Partner .410-gauge shotgun," unloaded. In the top drawer of a dresser in the bedroom "opposite the closet" were eighteen rounds (unused bullets) of .357 caliber ammunition.
The medical examiner who performed the autopsy on the victim opined she died from a single gunshot to the chest. The wound indicated defendant discharged the firearm at close range to the victim, placing the muzzle of the firearm zero to one inch distance away from the victim's body. Toxicology tests performed on the victim postmortem revealed a blood alcohol content (BAC) of .194 percent, more than twice the presumptive level of intoxication under N.J.S.A. 39:4-50(a). The BAC level in the victim's brain tissue was even higher, at .214 percent. According to the medical examiner, the victim's BAC was "acute." The tests conducted did not reveal or detect the presence of any illicit drugs in her system.
Defendant testified in his own defense. He described his relationship with the victim in the months preceding her death as characterized by her turbulent, violent, dysfunctional, and emotionally erratic behavior. In particular, he testified about an incident in which she hit him with a chair leg, and a separate time when she apparently unintentionally slashed his abdomen area with a sharp kitchen knife.
He also described an incident that occurred one evening "the week before she died or very close to the same time." She called him to come over. When he arrived, she was holding "two fillet knives." He moved away from her, in an attempt to avoid being cut by the knives. At one point, he felt "this warmth, it was a damp feeling, and [he] looked down and [saw he was] bleeding." According to defendant, her demeanor suddenly changed and snapped back to normal after she saw what she had done to him. She also "knocked" him on his head as he was walking up the stairs from the basement. In his words: "I went down. I was able to hold on to the railing, but I went down on my knees." He escaped further violence by running away. "I always ran away upstairs and I believe she stayed in the downstairs bedroom. . . ."
Despite this level of violence and overall dysfunctional environment, defendant never called the police or took any other form of concrete action to physically remove or evict this alleged aggressive and volatile companion from his home. According to defendant, his response was limited to merely telling her "to move on." Equally vexing is defendant's testimony concerning his role in enabling the victim's cocaine addiction. Defendant also testified that from August 1998 until the day he shot and killed her, the victim used defendant's credit, which he eventually paid, to buy approximately $14,000 worth of cocaine.
Concerning October 22, 1998, the day of Eunice's death, defendant testified that the first thing he remembered was "[t]hat we were going to need more alcohol . . . I'd have to make a trip to the liquor store," which defendant claimed he did. He walked to the liquor store and returned to the house at approximately 11:30 a.m., after having purchased "vodka, [and] possibly some beer. I don't recall exactly." He specifically recalled, however, that the liquor store opened at 11:00 a.m.
When he arrived at the house, he went upstairs to the master bedroom where Eunice was watching television, and asked her if she wanted a drink. Defendant claimed this prompted an argument because Eunice did not have cocaine. Defendant claimed he "got [himself] a bottle of liquor" and "went downstairs [to] get away from it," while Eunice continued "ranting." Through a series of open-ended questions, defense counsel then carefully guided defendant's recitation of the facts that led him to fatally shoot Eunice. Counsel began by asking defendant to describe what occurred after he returned from the liquor store:
I decided to go back upstairs. If [Eunice] would -- she would work herself up to the
point where she would start breaking things, so I went back upstairs to -- I don't know exactly, but just to calm her down, try to stop her, slow her down.
Q. And what happened next?
A. As I walked into the room she jumped out of the bed and she had -- there was a rifle in the corner.
Q. What corner?
A. Across from the door, you know, directly by the closet.
Q. Okay. What happened next?
A. As soon as she turned I can see her. She turns the corner. She could move fast.
Q. What corner? What corner Mr. Jenewicz?
A. The far corner.
Q. Okay.
A. You know, the southeast, southwest corner of the house.
. . . .
Q. All right. And what you mentioned, that there was a gun against the wall?
A. Right. It would be -- the door was closed, so it would be right in this corner here.
Q. Okay. And what gun was that?
A. .22
Q. What happened next? She got out of the bed and did what?
A. She ran around that corner.
Q. And what happened then?
A. As she was going around that corner I -- I just reacted. I went over to the dresser, and there was a handgun in the drawer, and I remember grabbing it, and the next thing was she kind of rotated away from me, the next time I see is this rotating away and lying on the floor.
Q. You mentioned you went to get a gun?
A. Yes.
Q. Where was that?
A. In the dresser.
Q. In the same room?
A. Same room.
Q. Where was it located?
A. Right side -- as you walked through the door on the right-hand side.
Q. Okay. So she's on the floor --
A. Yes.
Q. -- that point? What happened next?
A. I was a bit shocked. I didn't realize it at that moment that she was shot or anything. There was no -- that you would consider -- what I considered shooting,
there was no aiming involved. There was no -- I didn't hear the gun go off at all, and all guns are loud, but a revolver especially, there's -- it creates a lot more noise I could say than say an auto-loader.
Q. Well, do you recall what you did next?
A. I went over to her. As -- when I could see she was shot and just rolled her over, so she's -- she's facing up, she was kind of crumpled, just rolled her over. I pushed the .22 away. There was no breathing. Some point, I don't know, it got pretty crazy for me. I tried --
Q. What happened after that
A. I tried CPR. I remember that.
Q. Do you recall what happened next?
A. No. No. Not exactly.
[Emphasis added].
Although defendant appears to be referring to a photograph that depicts the crime scene, these photographs were not included in the appellate record. We are therefore unable to discern with clarity the meaning of defendant's statement concerning the proximity of the weapon.
Although defendant claimed to have no recollection from this point on, he did not dispute his own statement to the prosecutor's investigators describing how he dismembered the victim's body in the basement of the house. He also did not dispute that he committed this act as part of a failed attempt to cover the killing.
II
Against this record, defendant now appeals raising the following arguments through assigned counsel:
POINT I
THE COURT ERRED IN ADMITTING HIGHLY INFLAMMATORY POST-HOMICIDE EVIDENCE OF THE DEFENDANT'S EFFORT TO CONCEAL THE CRIME BY DISMEMBERING THE CORPSE.
POINT II
THE TRIAL COURT, SUA SPONTE, ORDERED THE REDACTION OF WITNESS ZOROMAE GLENNGRANT'S TESTIMONY THEREBY SIGNIFICANTLY IMPACTING THE DEFENDANT'S ABILITY TO PRESENT EVIDENCE ON PASSION/PROVOCATION MANSLAUGHTER.
POINT III
THE COURT IMPROPERLY LIMITED THE USE OF THE DOMESTIC VIOLENCE HISTORY TO OTHER CRIME EVIDENCE AND SELF-DEFENSE, THEREBY EXCLUDING IT'S APPLICATION TO PASSION/PROVOCATION MANSLAUGHTER. (Not Raised Below)
POINT IV
THE COURT FAILED TO SUPERVISE THE USE OF THE DEFENDANT'S AUDIOTAPED STATEMENT DURING THE PROSECUTOR'S SUMMATION RESULTING IN A DENIAL OF THE RIGHT TO A FAIR TRIAL. (Not Raised Below)
POINT V
THE DEFENDANT'S SENTENCE OF LIFE WITH A 30 YEAR PAROLE BAR WAS MANIFESTLY EXCESSIVE.
Defendant has also filed a pro se supplemental brief in which he raises the following additional arguments:
POINT I
STATE WITNESS, IWAN TERENIN, WAS NOT CALLED TO TESTIFY DENYING DEFENDANT OF THE RIGHT TO CROSS-EXAMINATION AS TO CREDIBILITY UNDER
THE 6TH AMENDMENT AND DUE PROCESS OF THE 14TH AMENDMENT.
POINT II
THE COURT ERRED IN DISALLOWING THE USE OF HARD EVIDENCE OF DEFENDANT'S MIRANDA CARD SIGNATURES AS TO HIS CLAIM OF INTOXICATION AFFECTING HIS STATE OF MIND AT THE TIME OF SEARCH/ARREST IN VIOLATION OF COMPULSORY DUE PROCESS OF THE 6TH AND 14TH AMENDMENTS.
POINT III
CUTTING OPEN OF THE SEALED, BLACK TRASH BAGS IN THE BASEMENT GARBAGE CAN WENT BEYOND THE REQUEST TO HAVE A LOOK AROUND THE DEFENDANT'S RESIDENCE FOR A POSSIBLE BODY.
POINT IV
ONCE THE DEFENDANT LET THE OFFICERS IN TO
LOOK AROUND HIS RESIDENCE, A SEIZURE OF HIS PERSON OCCURED [SIC].
POINT V
SEIZURE OF THE RESIDENCE OCCURED [SIC] WHEN IT WAS SURROUND [SIC].
POINT VI
THE DISCOVERY OF EVIDENCE WAS NOT INADVERTANT [SIC].
POINT VII
THE COURT ERRED IN IMPOSING THE IDENTICAL SENTENCE AS THE COURT FROM PREVIOUS TRIAL.
We reject all of the arguments raised by defendant, both through counsel and pro se, and affirm. We are satisfied that defendant's arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We will nevertheless discuss in some detail the argument raised by assigned counsel in Argument Point I, claiming the trial court committed reversible error when it permitted the State to introduce "highly inflammatory post-homicide evidence of the defendant's effort to conceal the crime by dismembering the corpse."
We start our discussion of this issue by noting that, well in advance of the second trial, defendant filed three in limine motions seeking: (1) a change of venue; (2) to exclude defendant's post-arrest statement to law enforcement investigators; and (3) to exclude evidence of all post-homicide conduct. Judge Frederick P. DeVesa addressed and denied all three of these motions two months before the commencement of trial. Judge DeVesa explained his reasoning in support of his rulings in a detailed seventeen-page memorandum of opinion that he attached to his order dated July 3, 2008.
Judge DeVesa reviewed defendant's motion seeking to exclude evidence of his post-shooting conduct under the rubric of "other crimes evidence" pursuant to N.J.R.E. 404(b), which provides, in relevant part:
Except as otherwise provided by [N.J.R.E.] 608(b)[] evidence 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.Defense counsel asked Judge DeVesa to exclude defendant's undeniably gruesome conduct in dismembering the victim's body postmortem because the resulting prejudice would deny his client a fair trial since this conduct was not relevant to the charges defendant faced at this second trial. Judge DeVesa summarized the parties' position on this issue as follows:
The Defendant argues that Defendant's post-shooting conduct is irrelevant and immaterial to the charges on remand, since the hindering count of the indictment was not reversed.[] Further, Defendant argues that any jury instruction could not overcome the prejudicial impact of the post-shooting evidence. The State argues that any prejudicial effect is slight in comparison to the probative value, and that
"sanitation" of all the State's witnesses by excluding this evidence would be an absurd hindrance of justice.
N.J.R.E. 608(b) provides that "[t]he credibility of a witness in a criminal case may be attacked by evidence that the witness made a prior false accusation against any person of a crime similar to the crime with which defendant is charged if the judge preliminarily determines, by a hearing pursuant to [N.J.R.E.] 104(a), that the witness knowingly made the prior false accusation."
See State v. Jenewicz, Docket No. A-0013-02, supra, slip op. at 2.
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In rejecting defendant's argument, Judge DeVesa applied the following four-prong test first articulated by the Court in State v. Cofield:
(1) The evidence of the other crime must be admissible as relevant to a material issue;
(2) It must be similar in kind and reasonably close in time to the offense charged;
(3) The evidence of the other crime must be clear and convincing; and
(4) The probative value of the evidence must not be outweighed by its apparent prejudice.
[127 N.J. 328, 338 (1992).]
Judge DeVesa also noted how the Court applied the Cofield factors in State v. Williams, 190 N.J. 114 (2007), a case in which the defendant was originally charged and tried on
aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1) (count one); reckless manslaughter, N.J.S.A. 2C:11-4(b)(1) (count two); possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count three); aggravated assault by knowingly pointing a firearm at or in the direction of another, N.J.S.A. 2C:12-1(b)(4) (count four); hindering apprehension, N.J.S.A. 2C:29-3(b) (count five); tampering with a witness, N.J.S.A. 2C:28-5(a) (count six); tampering with evidence, N.J.S.A. 2C:28-6(1) (count seven); and fabricating physical evidence, N.J.S.A. 2C:28-6(2) (count eight).
[Id. at 117.]
The jury in Williams convicted the defendant "on all counts concerning his post-shooting conduct," which included hindering apprehension, and acquitted him of aggravated manslaughter, possession of a weapon for an unlawful purpose, and aggravated assault by knowingly pointing a firearm at or in the direction of another. Ibid. However, the jury was unable to reach a unanimous verdict on reckless manslaughter, and the trial court was forced to declare a mistrial on that charge. Ibid.
On the retrial of the reckless manslaughter charge, the defendant sought to exclude evidence of his post-shooting conduct, arguing that such evidence: (1) was irrelevant to whether he acted recklessly in shooting the victim; and (2) the evidence was "unduly prejudicial." Ibid. The trial court in Williams
held the evidence to be inadmissible. Its determination was grounded on the conclusion that post-crime evidence of consciousness of guilt is not relevant to demonstrate recklessness. Moreover, the court found that introduction of the post-shooting-conduct evidence would be unduly prejudicial to defendant in the retrial, notwithstanding the court's contrary conclusion at the first trial when it declined to sever the post-shooting counts from the shooting counts.
[Id. at 118.]
We affirmed the trial court's determination in an unpublished opinion. Ibid. The Supreme Court granted the State's motion for leave to appeal, 187 N.J. 487 (2007), and reversed our decision. Ibid. The defendant's post-shooting acts in Williams, although indisputably not as facially gruesome as defendant's acts here, were nevertheless extremely troubling. William's alleged preoccupation with covering up his involvement in the crime immediately after the shooting could have been viewed by a jury as indicative of great callousness and indifference to the victim's suffering. This evidence could also support the rational inference that Williams had a narcissistic personality willing to subordinate the victim's life to protect his celebrity image as a former professional athlete, and at the time, television professional basketball commentator and analyst.
Despite this, the Court applied the four-prong test in Cofield and held the State was permitted to present this evidence to show the defendant's state of mind.
It is well known that mental state is not conducive to demonstration through direct evidence. In criminal prosecutions, proof of a defendant's mental state often must be inferred from the circumstances and the jury must make its determination by both the act and by the surrounding circumstances. The key to circumstantial evidence generally, and as applied to state-of-mind questions
specifically, is whether it bears a logical connection to the disputed fact.
When an individual's state of mind is at issue, a greater breadth of evidence is allowed. We admit circumstantial evidence that has a tendency to shed light on defendant's mental state or which tends fairly to explain a defendant's actions, notwithstanding that the evidence relates to conduct that occurred before the offense. Similarly, conduct that occurs after the charged offense circumstantially may support inferences about a defendant's state of mind.
[Id. at 124-125 (internal citations omitted).]
Applying the Court's analysis in both Cofield and Williams, Judge DeVesa concluded:
The post-shooting conduct of the Defendant is relevant to establish consciousness of guilt and hostility toward the deceased and thus, indirectly, the material issue of culpability. Defendant's methodological dismemberment of Ms. Gillens' body and his attempt to boil down her head may be indicative of a general plan or purpose to murder Gillens because of anger and hostility towards her as well as his consciousness of guilt. Such motivations could be viewed by the jury as inconsistent with Defendant's asserted love of Ms. Gillens and his self-defense claim.
We agree. Judge DeVesa's ruling concerning the materiality and relevance of defendant's post-shooting conduct as indicative of a consciousness of guilt is squarely consistent with and supported by the Court's central thesis in Williams. Williams, supra, 190 N.J. at 126-27. We thus affirm Judge DeVesa's decision allowing the State to present evidence of defendant's admittedly gruesome, yet highly relevant post-shooting conduct.
As previously noted, the balance of defendant's arguments do not warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION