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State v. Downey

Decided: January 9, 1986.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DIANE DOWNEY, DEFENDANT-APPELLANT



On appeal from Superior Court of New Jersey, Law Division, Middlesex county.

Fritz, Gaynor and Baime. The opinion of the court was delivered by Baime, J.A.D.

Baime

Following a protracted jury trial, defendant was convicted of murder and was sentenced to life imprisonment (N.J.S.A. 2C:11-3). Although she advances numerous arguments on appeal, her principal contention is that the trial judge erred by admitting into evidence a letter written by the victim prior to his death in which he recounted his concern that defendant would attempt to harm him. Defendant argues that the letter constituted hearsay evidence and that its admission deprived her of a fair trial. We agree and are constrained to reverse.

The voluminous trial record discloses the following salient facts. On the morning of December 23, 1981 defendant informed a neighbor that she had just discovered the body of her husband in the kitchen of their home. The police were immediately notified and arrived at the scene shortly after 11:30 a.m. Upon arriving at the Downey home, Patrolman Jack McDonald observed two vehicles parked in the driveway, one of which was a station wagon occupied by two women. The officer approached the automobile and asked the women, who were conversing in a calm manner, whether they reported a murder. At that point, defendant confirmed that she had discovered the body of her husband. When Patrolman McDonald asked what had occurred, defendant turned to the driver, who was later identified as Linda Prudden, and exclaimed "[g]o in the house and find out if you want to know."

After a back-up police unit arrived, the officer, accompanied by Patrolman Dennis Duvall, entered the house. Upon opening the front door, the officers observed blood "splattered" on the walls and floor of the hallway leading to the kitchen. The body of the victim was found in an upright sitting position beneath the kitchen table near the entranceway to the dining room clad

only in an open pajama top. The victim's intestines were protruding from his body. The officers observed that the kitchen furniture was in a state of disarray and that the floor was completely covered with blood.

The officers then surveyed the remainder of the house. They followed a trail of blood which led from the kitchen through a hallway into the bathroom. The bathroom hamper was upended and the floor was covered with coagulated blood. The officers entered the bedroom where they observed blood on the walls and the bed. Although all of the dresser drawers were open, their contents had apparently not been disturbed.

After making these observations, Patrolman Duvall entered the bottom level of the residence where he found traces of mud near the rear door which was ajar. The officer also noticed a "chip of wood" from the door frame and a "striker plate" lying on the ground. Although these observations initially supported the theory that someone had forcibly entered the premises, it subsequently developed that the plate could have been pried off the door only from the inside of the house.

After exiting the house, the officers briefly questioned defendant in the driveway. In response to Patrolman McDonald's questions, defendant stated that she last saw her husband alive on the night before and that she discovered his body at approximately 11:15 a.m. As the two were conversing, the officer noticed dried blood and a bandaid on defendant's right hand. Defendant said that she had cut her hand on a piece of glass beside her husband's body. She failed to explain the presence of a dark stain on the top of one of her shoes.

At approximately 11:30 a.m., Sergeant Joseph Triano and Detective Ernest Walton arrived. After making preliminary observations of the house, Detective Walton asked defendant and Prudden to accompany him to police headquarters. Pursuant to this request, both women followed Detective Walton's automobile in Prudden's white station wagon.

Upon arriving at the police station, the women were escorted to the ladies room because they complained of nausea. Detective Walton then interviewed both women jointly for approximately one and one-half hours. Defendant stated that on the preceding night she and Prudden were Christmas shopping when the latter's automobile abruptly broke down near the victim's place of employment. The decedent was able to start the automobile, however, and defendant and Prudden returned to the latter's home. Defendant explained that she was living at Prudden's residence during her convalescence from an automobile accident which had occurred in March 1980. According to defendant, she had conversed with her husband on the telephone from midnight until approximately 1:00 a.m.

Defendant recounted the following facts concerning her discovery of her husband's body. On the morning of December 23, 1981, she, her daughter and Prudden drove to the victim's residence in order to deliver several packages. Upon entering the house, she found her husband's body in the kitchen. She stated that she cut her hand on a jagged piece of glass near the victim's body. She then notified a neighbor of her discovery and directed him to contact the police. According to defendant, she drove to her brother's house, which was nearby, where she left her daughter. She then returned to the Downey house to await the arrival of the police.

After relating this information to Detective Walton, defendant and Prudden were permitted to leave. The two proceeded to defendant's brother's house where her family had gathered. In the meantime, Sergeant Triano decided to question defendant further. Upon his request, defendant and Prudden, accompanied by the former's brother, returned to police headquarters.

Upon arriving at the police station, defendant and Prudden were interviewed separately. Defendant's brother was permitted to be present during most of her interrogation. However, shortly after 4:00 p.m., he was asked to leave. At approximately 5:00 p.m., defendant gave a formal written statement to the

police essentially repeating her prior account. Detective Thomas Rizzo, who took the statement, testified that defendant was not apprised of her constitutional rights at this time because she was not in custody. According to Detective Rizzo, defendant was free to leave the police station until approximately 7:35 p.m. when the information derived from the officers' investigation was reviewed. At that point, defendant was advised of her rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

After signing a "preamble waiver" document, defendant was questioned further. Defendant denied that she had been in the area of the victim's home on the evening of December 22, 1981. She also denied walking near the rear door of the residence after discovering her husband's body. Defendant was then confronted with a statement of a neighbor who observed Prudden driving her station wagon in the vicinity of the Downey home at approximately 11:00 p.m. However, defendant repeated her denial. After additional questioning, she finally admitted that she had been in the area but had not stopped. Defendant was then advised that the police had discovered her fingerprint on traces of blood found on the rear door. She again denied being in that area of the house. Defendant subsequently remembered, however, that she had walked to the rear of the house and had "handled" the door knob.

The State presented substantial evidence placing defendant and Prudden at the victim's home. As noted previously, a resident of the neighborhood observed Prudden in her automobile in the area of the Downey residence at approximately 11:00 p.m. Although this neighbor did not see defendant in the vehicle, the latter admitted being with Prudden throughout the evening and night-time hours of December 22. Another neighbor observed Prudden's automobile parked in the victim's driveway sometime after 11:00 p.m. The police discovered a "cigarette butt" of the brand defendant ...


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