On appeal from the Superior Court of New Jersey, Law Division, Middlesex County.
Michels, Shebell and Gaynor. The opinion of the court was delivered by Michels, P.J.A.D.
[223 NJSuper Page 95] Following a lengthy jury trial, defendant Edward Freeman was convicted of murdering his wife, Sandra Varga Freeman (Sandy), by cyanide poisoning, a crime of the first degree, in violation of N.J.S.A. 2C:11-3. Defendant's motions for a new trial or, alternatively, a judgment of acquittal notwithstanding the verdict and for a post-trial examination of the jurors were denied. Defendant thereupon was committed to the custody of the Commissioner of the Department of Corrections for a term of life imprisonment with a 30-year period of parole ineligibility.
In addition, defendant was assessed a penalty of $1,000, payable to the Violent Crimes Compensation Board. He appeals.
According to the State's proofs, defendant worked in the post office where he was regularly employed as a mailman. His wife, Sandy, stayed at home with their three children. Although the couple had their share of domestic arguments, few people were aware that their marriage had greatly deteriorated. Prior to her death, Sandy complained that defendant worked too much, leaving her sitting home alone at night. In late 1983, defendant began staying out late two to three nights a week, claiming he was helping a man named George fix up a garage in Sayreville. In reality, defendant was having an extramarital affair with fellow postal employee Linda Amiano (Ms. Amiano), which began in June 1983 and continued up until the time of defendant's arrest. During the last 7-8 months of their marriage, the couple did not sleep together and Sandy began to suspect that defendant might be having an affair.
On Memorial Day, May 28, 1984, Sandy got up at approximately 9:30 a.m. and went to the bakery where she purchased bread and donuts. After breakfast, defendant's father, August "Gus" Freeman and mother, as well as defendant's brother Joe Freeman, stopped over for approximately one half hour as they were returning from the shore. Around noon time, defendant took his family to buy a car stereo, returning home at approximately 4:00 p.m. for dinner which Sandy had prepared. At approximately 6:00 p.m. the family went to visit some friends living in nearby Avenel, Andrew and Patricia Contala (Contalas). Since they had just eaten, the Freemans declined the Contalas' invitation to join them for dinner but remained and socialized for one to two hours. During the visit Sandy had a cup of coffee.
After leaving the Contalas, the Freemans stopped at a Carvel Store where Sandy purchased some ice cream. When they arrived home, Sandy bathed the children and put them to bed.
She then ate an ice cream sundae and the last cinnamon twist donut left from that morning's purchase. After consuming the ice cream and the donut, Sandy sat down in the T.V. room for several minutes before informing defendant that she was not feeling well. At this point, Sandy got up and climbed the stairs to the upper floor bathroom.
Several minutes later defendant followed Sandy up the stairs and heard a thud from the bathroom. After observing that Sandy had vomited and was lying unconscious next to the toilet, defendant telephoned his father (Gus) and told him to "come quick." Approximately five minutes later Gus Freeman arrived at his son's house. After Gus, an 18-year veteran of the Carteret First Aid Squad was unable to revive Sandy, he told defendant to call an ambulance. Gus knew that Sandy had been taking medication for high blood pressure and, therefore, concluded that she had suffered a stroke.
Officer Edward DeFelice (DeFelice) was assigned to dispatch duty at Carteret Police Headquarters (headquarters) at 10:30 p.m. on the night of May 28, 1984, when he received a call from defendant requesting an ambulance. Officer DeFelice dispatched Officer Barry Auker (Auker) to the Freeman residence and then alerted the local first aid squad and the Medic 10 paramedic unit at Rahway Hospital. Upon arriving at defendant's home, Officer Auker checked Sandy's vital signs and observed that she was breathing shallowly but had a somewhat strong pulse. Shortly thereafter, the first aid squad arrived and Auker assisted them in transporting the victim from the bathroom into the hall. By the time the Medic 10 unit arrived from Rahway Hospital, Sandy's pulse had stopped and efforts to revive her through CPR were ineffective.
The Medic 10 personnel set up an esophageal airway to pump Sandy's stomach. Vomiting was eventually induced and the paramedics cleaned up the area with several towels taken from defendant's bathroom. After attempting to resuscitate the victim for about an hour at home, the team placed Sandy in an
ambulance at approximately 11:30 p.m. and continued to administer CPR. Defendant accompanied Sandy in the ambulance back to Rahway Hospital, where she was pronounced dead at 11:41 p.m. on arrival at the Rahway Hospital Emergency Room.
In light of the rather natural, unsuspicious circumstances initially surrounding the victim's death, Officer Auker did not have photographs taken of the house or collect the towels used by the paramedics. Nevertheless, Officer Auker did complete a report of the incident, which was reviewed the next morning, May 29, 1984, by Detective Ronald Bennett (Bennett). Detective Bennett was prompted by this report to go to the autopsy conducted by the Medical Examiner, Dr. Marvin Shuster (Shuster), in the Perth Amboy Hospital Morgue later that morning.
During the course of the post-mortem examination, Dr. Shuster became convinced that the victim had not suffered a stroke or heart attack, but had in fact died from asphyxiation due to acute toxicity caused by cyanide. After detecting the odor of bitter almonds characteristically associated with cyanide, Dr. Shuster advised Detective Bennett of the potential public health hazard and asked him to secure any specimens at the scene of the death that might contain the poison. Dr. Shuster communicated his concern that foul play was a distinct possibility to Detective Bennett.
Detective Bennett thereafter dispatched Sergeant Michael Materazzo (Materazzo) and Detective Robert Talalai (Talalai) to the Freeman residence to collect any food or medication which Sandy might have ingested before she died. Upon their arrival, both defendant and Gus were advised that there was a possibility that Sandy had been poisoned, although the word cyanide was not mentioned, and defendant was asked to retrieve any food which she might have consumed. Defendant produced a paper bag containing donut remains, two Carvel ice cream containers, various medications, and a number of full garbage bags found outside of the house. Although defendant advised the officers that there was a rat problem in the neighborhood,
particularly in his backyard, to which the Board of Health was attending, he repeatedly denied that he had personally used any type of rat poison, weed killer or insecticide and that no such products were on the premises.
After meeting with Detective Ralph Spector (Spector) of the Middlesex County Prosecutor's Office later that morning, Detective Bennett telephoned defendant and asked him to come into headquarters to provide additional details regarding his wife's death. Defendant arrived at about 1:00 p.m., recounted the events of May 28, 1984 and left 25 minutes later. At this point, neither Detective Bennett nor Spector suspected that defendant was involved in his wife's death. That night, Detective Bennett received a toxicological report from Dr. Reng-Lang Lin (Lin) of the New Jersey State Medical Examiner's Office in Newark. This report revealed that samples taken from the victim's body had ten times the minimum lethal dose of cyanide. Dr. Lin found the cause of Sandy's death to be an acute cyanide overdose. Thereafter, Detectives Bennett and Spector met at headquarters at approximately 7:30 p.m. and made arrangements to visit the bakery and the Carvel and to interrogate the owners and any employees who had been working on Memorial Day. The detectives also visited defendant's home and requested that he return to the station to give a more detailed formal statement later that evening.
When defendant arrived at headquarters on the evening of May 29, 1984, the interview was conducted before Detectives Bennett and Spector and a police stenographer. Although defendant became visibly agitated and annoyed when told that he would be required to swear to the truth of the statement, he eventually calmed down and assented. In addition to the previous information defendant had provided, he now indicated, among other things, that Sandy had drunk "a glass of milk or glass of water or glass of something," just prior to becoming ill.
As a precautionary measure, the bakery and Carvel were closed by the Board of Health until the source of cyanide could be positively identified. Initially, Detective Bennett believed he had located the source when it was revealed that Sandy had been cleaning their swimming pool the day before her death and that a particular pool chemical, No Clo, which defendant had purchased on that day, contained cyanoric acid. This theory, however, was disproved when the No Clo container and its contents tested negative for the presence of sodium cyanide.
On May 31, 1984, the investigation took a decisive turn. Ray Baumgartner, the owner of a local hardware store, appeared at headquarters with Ted Tarnowski (Tarnowski), an employee, who informed the police that defendant had advised him of his rat problem and had asked him at the beginning of May to get him something more "effective" than the standard commercial rodenticide. Tarnowski recounted that on May 22, 1984, he had obtained a quart jar of sodium cyanide through Keith Tuchalski, a friend who worked at a chemical plant, and had delivered it to defendant at his home. Having the benefit of this information, Detectives Bennett and Spector drove to the funeral parlor where Sandy's wake was being held and advised defendant's father and brother, William Freeman, that "[they] had some information on the type of poisoning but, . . . needed some additional information from Edward" and requested that he come to headquarters after the wake.
Defendant arrived at headquarters with his brother William at 4:20 p.m. and was escorted into the Juvenile Aid Bureau, where Detective Spector immediately read him his rights from a Miranda warning card. After defendant verbally acknowledged that he understood his rights, he was handed the card to read and sign below the following statement:
I acknowledge I have been advised of and understood the Constitutional Rights on the reverse side of this card.
Although defendant expressly acknowledged an understanding of these rights, he became visibly upset over the card's reference to the words "accused or suspect" and refused
to sign the card. Spector told him he did not have to sign the card, and that they could simply indicate on the card that he had refused to sign. After defendant asked "What if I cross out the words accused or suspect?", the detectives replied "Edward, you can do whatever you want." Defendant then crossed out the words "accused or suspect" and signed the card. Defendant did not attempt to invoke any of his rights at this point and refused the assistance of an attorney four to five times over the course of the interrogation. Rather, when he was told by the detectives that:
[they] were going to talk to him about his wife's death. That [they] had some information and primarily [they] were going to ask him questions that [they] already had the answers to and what [they] wanted him to do was to tell the truth,
defendant agreed to answer any questions.
Initially, the questioning concerned whether defendant had recently obtained any pesticide or rodent killer. Defendant indicated that he had not purchased any rat poisons. However, when the fact was brought out that his wife's death certificate listed cyanide poisoning as the cause of death, defendant stated that he had tried to get some cyanide from Tarnowski, but that Tarnowski had never delivered it. Defendant then admitted that Tarnowski had in fact delivered "some poison" which he claimed he had gotten rid of because it was "too dangerous." Although defendant then asserted that he had thrown out the jar, he later claimed that he had accomplished this task by taking the jar into the kitchen and dumping the chemical in plastic bags which were then put inside of a brown paper bag and thrown into a dumpster located at nearby garden apartments. Defendant also claimed that he still had the glass jar which was now sitting on a shelf in his garage. Although Detective Bennett told defendant that he did not have to give them consent to obtain this item since a search warrant would inevitably be executed, defendant nevertheless gave the detectives permission to retrieve the jar from his garage.
Detective Bennett immediately left headquarters, obtained the jar and checked the nearby dumpster for the bag of cyanide. Finding nothing, Detective Bennett returned to headquarters where he met Gus Freeman in the parking lot, and told him:
Gus, I'm sorry -- but your son has been lying to me. He's got a very serious problem. I think you should get an attorney to help him.
The questioning of defendant then resumed until an attorney, Desmond Abazia, Esq., appeared approximately twenty-five minutes later and announced that he represented defendant. The interview concluded at that point.
Around 10 p.m. on May 31, 1984, defendant was arrested and charged with the murder of his wife. He was placed in the custody of the Middlesex County Prosecutor's Office in New Brunswick. Thereafter, Detective Spector, along with Assistant Prosecutor Kapsak, obtained a search warrant for defendant's home and three vehicles belonging to defendant in order to locate the missing cyanide. Although several items were seized from defendant's home when the warrants were executed in the early morning hours of June 1, 1984, none of the items contained cyanide or revealed any clues as to where the poison could be.
On June 12, 1984, Detective Spector received a call from Jerome J. Convery, Esq., counsel for defendant, regarding the discovery of an additional piece of evidence. At approximately 2:30 p.m. that day, Detectives Bennett and Spector met Convery and defense investigator Frederick Rast at headquarters and the parties then proceeded to defendant's residence, where a search of the garage and certain shelves in the garage was commenced. Detective Bennett opened and inspected a paint can bearing a blue label, which contained a substance identified through a subsequent laboratory analysis as sodium cyanide.
After a lengthy trial, defendant was convicted of the murder of his wife Sandy. This appeal followed.
Defendant seeks a reversal of his conviction and a remand for a new trial on the following grounds set forth in his brief:
POINT I THE COURT BELOW ERRED IN FINDING A KNOWING, VOLUNTARY WAIVER OF MIRANDA RIGHTS BY DEFENDANT AND, AS SUCH, THE STATEMENTS MADE BY HIM AND THE ITEMS SEIZED AS A RESULT OF THOSE STATEMENTS SHOULD HAVE BEEN SUPPRESSED.
A. THE COURT BELOW ERRED IN FINDING A KNOWING, VOLUNTARY WAIVER OF HIS RIGHTS BY APPELLANT AND ADMISSION OF THE MAY 31, 1984 STATEMENT BY APPELLANT WAS ERROR.
B. THE COURT BELOW ERRED IN ADMITTING THE EVIDENCE SEIZED UNDER THE SEARCH WARRANT BECAUSE THE PROBABLE CAUSE FOR SAME WAS FOUNDED ON THE DEFENDANT'S STATEMENT OF MAY 31, 1984.
POINT II THE HEARSAY STATEMENTS OF SANDRA FREEMAN WERE INADMISSIBLE AND/OR IMPROPERLY USED, RESULTING IN REVERSIBLE ERROR.
POINT III THE ADMISSION OF THE TESTIMONY OF PATTIE CONTALA WAS PREJUDICIAL ERROR AND NECESSITATES REVERSAL OF THE CONVICTION BELOW.
A. THE OATH WAS NOT ADMINISTERED PRIOR TO THE TAKING OF THE DEPOSITION AND RULES 3:13-2, 4:14-3 AND 4:14-9 WERE NOT COMPLIED WITH.
B. THE WITNESS'S TESTIMONY AS TO THE DECEDENT'S SUICIDAL TENDENCIES WAS AN INADMISSIBLE OPINION.
C. THE TESTIMONY CONCERNING THE DEFENDANT'S "EXPLANATION" WAS UNDULY PREJUDICIAL.
POINT IV THE ADMISSION OF THE OPINION TESTIMONY OF DR. FREDERICK RIEDERS WAS REVERSIBLE ERROR AS SAME IS A NET OPINION.
POINT V THE VERDICT REACHED BY THE JURY BELOW WAS THE PRODUCT OF EXTRANEOUS INFLUENCES AND THE FAILURE TO GRANT A MISTRIAL ON ANY OF SEVERAL OPPORTUNITIES WAS REVERSIBLE ERROR.
A. THE JURY SHOULD HAVE BEEN REINSTRUCTED BEFORE CONTINUING ITS DELIBERATIONS AFTER DELIVERING ITS ABORTED VERDICT.
B. THE JURY VERDICT WAS TAINTED BY EXTRANEOUS INFLUENCES AND THE TRIAL COURTS FAILURE TO MAKE ...