On appeal from Superior Court of New Jersey, Law Division, Middlesex County.
Pressler, Gaulkin and Baime. The opinion of the court was delivered by Baime, J.A.D.
Defendant was tried by a jury and was found guilty of murder (N.J.S.A. 2C:11-3), hindering the prosecution of another (N.J.S.A. 2C:29-3) and false swearing (N.J.S.A. 2C:28-2). The trial judge sentenced defendant to life imprisonment on the murder conviction. In addition, defendant was sentenced to a custodial term of five years on the hindering prosecution offense and 18 months on the false swearing conviction. All sentences are to run concurrently.
Defendant advances numerous arguments on appeal. Her principal contentions, however, are that the trial judge erred: (1) by admitting into evidence a letter written by the victim prior to his death in which he recounted his belief that defendant would attempt to harm him and (2) by permitting the State to introduce expert testimony relating to morphological footprint comparisons. We find that the decedent's letter was improperly admitted and that this error taints defendant's convictions for murder and hindering the prosecution of another. We are constrained to reverse those convictions and remand for a new trial. Since the judge's error had no impact on the false swearing count, we affirm that conviction.
We need not recite the facts at length. Defendant and Diane Downey were charged with murdering the latter's husband.
The same indictment charged defendant individually with hindering the prosecution of Downey and false swearing. The charges against defendant and Downey were severed for the purpose of trial. Downey was tried first and was convicted of murder. Although defendant was tried separately, much of the evidence presented in the Downey trial was also introduced against her. We thus refer to our opinion in State v. Downey, 206 N.J. Super. 382 (App.Div.1986) for a full recitation of the circumstances surrounding the homicide and its aftermath.
The State's theory at both trials was that defendant and Downey were engaged in a long-standing lesbian relationship and that they murdered the victim to prevent him from interfering. In support of this theory, the State presented evidence that Downey had moved into defendant's residence and that the two shared the same bedroom. Defendant's husband, Raymond Prudden, did not object to this arrangement, because he was having an affair with Downey's sister. The State introduced into evidence a note written by Downey professing her love for defendant. The police discovered an unmailed Christmas card in defendant's automobile in which Downey, in vulgar terms, noted her contempt for the decedent.
The State presented additional evidence disclosing the victim's fear of the Pruddens and Downey. Specifically, the decedent suspected that the three were plotting against him. Over defense counsel's vigorous objections, the trial judge admitted into evidence an undated handwritten letter signed by the victim. Because of the importance of the letter, we quote it verbatim:
To Anyone, if anything happens to me or my kids you can go get, number one, Diane Downey, number two, Linda Prudden, number three, Ray Prudden. They are at 218 Hardy Avenue, Bound Brook, New Jersey, 356-8574. They would be the cause of it. Robert R. Downey. P.S. In the event of this letter opened I want my kids to have everything I have.
Defendant ultimately received the letter and turned it over to the police after her arrest. During the trial, the prosecutor read the note to the jury. Immediately thereafter, the trial judge offered a limiting instruction in which he apprised the
jury that the note could not be considered as "proof of the truth of its contents," but only to establish the decedent's ...