On appeal from Superior Court of New Jersey, Law Division, Atlantic County.
Fritz, Gaynor and Baime. The opinion of the court was delivered by Baime, J.A.D.
Defendant, John Flaherty and Charles Draper were charged in a multi-count indictment with conspiracy and murder in contravention of N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3, respectively. In addition, defendant alone was charged with two counts of attempted murder in violation of the provisions of N.J.S.A. 2C:5-1a(2) and N.J.S.A. 2C:11-3. Prior to trial, Draper was granted use immunity and agreed to testify for the prosecution. Following a protracted jury trial, defendant was found guilty of all of the charges. At sentencing, the trial judge merged the convictions*fn1 and imposed a term of life imprisonment. Defendant was ordered to serve 25 years without parole eligibility. After filing a notice of appeal, defendant applied for a remand in order to move for a new trial based upon newly discovered evidence. We granted defendant's application and retained jurisdiction. Defendant's motion for a new trial was subsequently denied.
The salient facts are as follows. The charges and resulting conviction stem from defendant's alleged participation in a plot to kill her husband. Defendant married Michael Weiler in 1970. The couple initially resided in California, but ultimately returned to New Jersey where they assumed ownership of her parents' store. One child was born of the marriage, Michael Weiler, Jr. The relationship between defendant and her husband was often acrimonious and stormy. In December 1978 defendant requested a divorce.
According to the State's witnesses, the bitter marital litigation that ensued ultimately led defendant to seek to have her husband murdered. Although questions relating to equitable distribution and support were hotly contested, defendant's principal concern pertained to the issue of custody. The State contended that defendant eventually formulated the idea of
having her husband killed to insure that she would be awarded custody.
In December 1978 defendant commenced living with Robert Hupperich. On several occasions, defendant told Hupperich that she "would like to see [her husband] dead. . . ." At one point, defendant allegedly suggested to Hupperich that she would pay him $10,000 if he would kill her husband. During the course of the trial, the State presented additional witnesses who testified that defendant had solicited them to kill the victim.
In July 1979 defendant began having an affair with Draper. Defendant frequently discussed her marital problems with Draper and often requested his assistance in having her husband killed. Draper testified that defendant became "obsessed with [this] idea."
The relationship between defendant and Draper gradually deteriorated. In October 1980 defendant moved out of Draper's apartment and began living with a friend, Carol Wagener. Draper became infuriated and attempted to forcibly remove defendant from Wagener's residence. As Draper was driving defendant from Wagener's house, a police car intercepted his vehicle. Draper was arrested and subsequently charged with terroristic threats, kidnapping and breaking and entering. Although Draper and defendant later resolved their differences, she allegedly threatened to pursue the charges against him unless he found someone to kill her husband.
Draper then contacted Flaherty who agreed to murder the victim for $10,000. Flaherty subsequently obtained a shotgun. On November 8, 1980 Draper telephoned Flaherty and told him to kill Weiler soon because of the upcoming divorce hearing. During their conversation, Draper agreed to show Flaherty the victim's house and the surrounding area. Shortly thereafter, Draper pointed out the Weiler house and Flaherty described his plan to kill the victim. Draper subsequently advised defendant of the details of the plan.
On November 11, 1980 Flaherty notified Draper that he would kill Weiler later that evening. Draper subsequently drove Flaherty, who was armed with a shotgun, to the vicinity of Weiler's house. ...