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State v. Downey

Decided: November 20, 1989.

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



Michels, Deighan and Brochin. The opinion of the court was delivered by Michels, P.J.A.D.

Michels

[237 NJSuper Page 6] In February, 1982, defendant Diane Downey and co-defendant Linda Prudden (Ms. Prudden) were indicted by the Middlesex County Grand Jury and charged with first degree murder in violation of N.J.S.A. 2C:11-3. In November, 1982, following a lengthy trial, defendant was found guilty of first degree murder of her husband Robert Downey (decedent) and sentenced to life imprisonment. In January, 1986, we reversed defendant's conviction and ordered a new trial. State v. Downey,

206 N.J. Super. 382 (App.Div.1986).*fn1 In November, 1986, following a lengthy retrial, defendant was again found guilty of first degree murder. In December, 1986, defendant's motion for a new trial was denied, and she was sentenced to the Correctional Institution for Women for a term of life imprisonment and assessed a $25 penalty payable to the Violent Crimes Compensation Board. In March, 1987, we granted defendant leave to file a notice of appeal nunc pro tunc.

The factual context within which the issues on this appeal have been raised can be summarized as follows. In an effort to establish a motive for the murder of decedent on December 23, 1981, the State sought to introduce testimony to the effect that defendant and Ms. Prudden had been engaged in a lesbian relationship that caused severe marital discord between decedent and defendant. The trial court conducted a Rule 8 hearing to determine the admissibility of the State's evidence. During the course of the hearing, Jeffrey Downey, the decedent's brother, testified that during December, 1981, defendant and her children had been living at the Prudden residence in Bound Brook and that the deceased "wasn't very happy about it." Jeffrey Downey further testified that on December 21, 1981, two days before the murder, the deceased, through his mother, requested that he (Jeffrey Downey) stop by the Prudden residence to bring some of defendant's personal belongings to the Downey residence for the holidays. When Jeffrey Downey arrived at the Prudden residence later that day and informed defendant of his reason for being there, defendant stated that "she wasn't ready."

Mrs. Pauline Downey, the decedent's mother, testified to one conversation she had with defendant and three conversations she had with the decedent. According to Pauline Downey, around Christmas 1980, defendant called her at work and asked her to stop by the Downey residence to discuss a problem that she was having with the decedent. When Mrs. Downey arrived, defendant told her that the decedent was being too possessive and that he always wanted to know her whereabouts. Defendant also stated that the decedent objected to her friendship with Ms. Prudden, but that she did not intend to give up that friendship. At that time, defendant denied that she was having a lesbian relationship with the co-defendant.

The day after this conversation, Pauline Downey spoke with the decedent about her conversation with defendant. According to Pauline Downey, decedent was in "rather an emotional state" and was "very tense." Decedent told his mother that he wanted to try to make his marriage work because he wanted his family together. He also expressed concern over his relationship with defendant's family because he had been "irritable, grouchy and short tempered" with them.

Pauline Downey also testified to a second conversation she had with the decedent in July, 1981. She stated that at that time the decedent was "extremely agitated, very very upset," and kept pacing back and forth. He told her that he and his wife were still experiencing marital discord and that defendant's relationship with Ms. Prudden continued to bother him. When Pauline Downey asked the decedent if he were imagining the lesbian relationship, he produced a love letter that had been written by defendant addressed to Ms. Prudden. Pauline Downey read the note and, with the decedent's permission, kept it. The note read:

Dear Lin, I fell asleep right after you did only to wake up around four o'clock because my lung cramped, but please wake me up when you get up so we can spend some time together. I know you must be sick of hearing this, but after you fell asleep you wouldn't even let me hold you. You said I was just like Bobby and Ray. Is anything wrong? I really didn't expect you to fall asleep. I love you, love Diane.

Subsequently, Pauline Downey recounted a third conversation with the decedent that had occurred on December 19, 1981, four days before the murder. She stated that the decedent had arrived at her house late that night and "was totally different than he had been for so long." She stated that the decedent appeared to be extremely happy. According to Pauline Downey, the decedent stated: "Diane and the kids are coming home for Christmas, we're all going to be together for Christmas and I'm just so happy."

The trial court held the proffered testimony admissible, reasoning, in part, that the conversations related by decedent's mother and brother were part of

a mosaic, a pattern. . . . [which] clearly goes to the state of mind of the defendant Diane Downey on the theory of the motive for doing what is alleged to have occurred on December 23, 1981. To the extent there's some tangential intertwining of the mind of the decedent himself, I find that is very tangential, if at all. . . .

The State also introduced evidence that defendant had expected to receive a substantial sum of money upon the death of the decedent. Specifically, the State presented evidence that defendant was aware that she was the primary beneficiary on three life insurance policies, two for $10,000 and one for $60,000. One of the $10,000 policies had a double indemnity clause and, therefore, if defendant recovered the full amount on all three policies, she would have received $90,000.

To rebut the State's attempt to establish financial gain as a motive for the murder, defendant presented the testimony of Richard Thiele, Esq., an attorney who had represented defendant in an action to recover damages for injuries sustained by defendant in an automobile accident. The trial court allowed Mr. Thiele to testify after a Rule 8 hearing. Mr. Thiele testified that on July 20, 1981, approximately five months prior to the homicide, he met with defendant at the Prudden residence. During that meeting there had been a ...


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