On appeal from the Superior Court of New Jersey, Law Division, Atlantic County.
Pressler, Shebell and D'Annunzio. The opinion of the court was delivered by Shebell, J.A.D. Pressler, P.J.A.D., Concurring.
Defendant appeals his jury conviction for the first-degree crime of murder (N.J.S.A. 2C:11-3a(1)). His motion for judgment of acquittal or, in the alternative, a new trial was denied. Defendant was sentenced to a 40-year term of imprisonment with 30 years of parole ineligibility.
In his brief on appeal defendant argues:
POINT I: THE COURT'S RESTRICTION OF DEFENDANT'S CONSULTATION WITH HIS ATTORNEY WAS A DENIAL OF HIS RIGHT TO ASSISTANCE OF COUNSEL .
POINT II: THE ADMISSION OF THE SAMPLES OF DEFENDANT'S HANDWRITING FOR COMPARISON BY THE JURY WITHOUT THE GUIDANCE OF EXPERT TESTIMONY WAS ERRONEOUS.
POINT III: IT WAS ERROR FOR THE COURT TO FAIL TO EXCUSE CERTAIN JURORS FROM SERVICE ON THIS CASE.
POINT IV: THE ADMISSION OF HEARSAY EVIDENCE DURING THE TRIAL DEPRIVED THE DEFENDANT OF A FAIR TRIAL (PARTIALLY RAISED BELOW).
POINT V: THE CUSTODIAL STATEMENTS MADE BY THE DEFENDANT FOLLOWING HIS ARREST SHOULD NOT HAVE BEEN ADMITTED INTO EVIDENCE.
POINT VI: IT WAS ERROR FOR THE COURT TO FAIL TO PRECLUDE CERTAIN EVIDENCE.
POINT VII: THE FAILURE OF THE STATE TO PROVIDE FULL DISCOVERY TO THE DEFENDANT VIOLATED HIS CONSTITUTIONAL RIGHT TO DUE PROCESS AND A FAIR TRIAL.
POINT VIII: ADMISSION OF CERTAIN TESTIMONY BY INVESTIGATOR . . . VIOLATED THE DEFENDANT'S RIGHT TO REMAIN SILENT .
POINT IX: IT WAS ERROR FOR THE COURT TO PREVENT DEFENDANT FROM PRESENTING CERTAIN EVIDENCE.
POINT X: THE DEFENDANT'S MOTION FOR NEW TRIAL SHOULD HAVE BEEN GRANTED.
POINT XI: THE TESTIMONY OF INVESTIGATOR . . . SHOULD NOT HAVE BEEN ADMITTED AS REBUTTAL EVIDENCE.
POINT XII: SENTENCE IMPOSED UPON THE DEFENDANT BY THE COURT WAS EXCESSIVE AND SHOULD BE REDUCED .
POINT XIII: THE AGGREGATE OF ERRORS DEPRIVED THE DEFENDANT OF A FAIR TRIAL .
Decedent, killed on February 14, 1985, was the supervisor of the transportation department at Harrah's Marina Hotel and Casino in Atlantic City. The State called a female witness, who had worked with decedent in Harrah's transportation department. She testified that Harrah's would farm out business to a company called Boardwalk Limo, run by Ken Melveney, defendant's cousin. When Harrah's began to get complaints that the cars were late and not clean, they gave less and less business to that company.
In January 1985, Melveney came to decedent's office about 20 feet from the witness' office. She noticed that Melveney's voice got louder and louder. She heard him say: "If you take me down, I'll take you along. I'll take you down with me." After Melveney left, decedent came out and said to her, "I can't
believe it. He just threatened my life." He then repeated what she had already heard.
The State called a second female who also worked in Harrah's transportation office. Because there had been a problem at the office with unauthorized people using Harrah's vehicles and a limousine driver operating with an expired license, she asked her husband, a police officer, to do a license rundown on several people, including the decedent. The rundown revealed that decedent had a long record of driving violations and was on the revoked list. The State's witness was a friend of Kenneth Melveney. She showed Melveney an abstract of decedent's record which showed his home address. When she told Melveney about decedent's driving record they tried to catch him driving and have the police stop him; however, they were unsuccessful. She also testified that there was some frustration on Melveney's part because he was not getting the business he had before. Decedent's superior testified that he received a letter from Melveney complaining about decedent and saying that Melveney was not getting as much business as he should.
Decedent's wife testified that in January 1985, a few weeks before her husband was killed, she had been at home with her husband, her children, her niece, and the niece's girlfriend when she became aware of a dark-colored Bronco driving back and forth in the street. Shortly thereafter, the doorbell rang. When she answered the door, a man asked for her husband. When he came to the door, the man said: "Hi, I'm Tony D., and I would like to talk to you about some business." He claimed he was from "Charter One" and wanted to start a limousine company in the area. When asked how he had found his address, the man said: "I don't want to go into that now. I don't want to get anybody in trouble." Decedent gave the man his work number and said they could talk there. The wife described "Tony Dee" as a very large person with a beard and sandy blond hair, dressed in a plaid shirt and blue jeans. She indicated that he was at the home for about ten minutes.
On February 14, 1985, Tony Dee called the decedent's home at about 8 a.m. wanting to talk to decedent about business. Decedent's wife told him that her husband was not up yet and that he should call back. About an hour and a half later, after decedent had gone to work, the man called again. He said he was on his way to Atlantic City from Philadelphia and wanted decedent's work number because he didn't get into the area very often. She thought he said that he lived in Edgewater. Decedent was killed that day.
Decedent's wife viewed photographs including defendant's beardless photo after her husband's death but was unable to make a positive identification of Tony Dee. At trial she said that defendant could have been the man who came to her house, as he was as large as that man and his hair color and nose were the same.
Decedent's niece also was shown a photographic array. She went immediately to defendant's beardless picture and said that she believed it was the person she had seen at decedent's residence. Nonetheless, she could not say definitely that it was Tony Dee.
A transportation coordinator in the limousine department of Harrah's testified that decedent was her supervisor. Her job was to dispatch limousines and, if there were no Harrah limousines available, to call an outside vendor. On the night before the decedent disappeared, a man calling himself Tony Dee came into the office looking for her boss. He waited about an hour, but left when she told him, after her boss instructed her by phone to get rid of him, that she did not know when decedent would return. Tony Dee said he would try to contact him the next day at the office.
While Tony Dee had still been waiting, decedent pulled into the parking lot. The coordinator went to his car to say that Tony Dee was still there. Decedent drove out of the lot. He came back only after Tony Dee had left.
On the next night, decedent had been in a meeting when Tony Dee called on the telephone. Decedent talked to him and then told the coordinator that he was going out to talk business. Tony Dee came to the office dressed in a leather jacket and jeans. The coordinator testified that he was "huge" and had a beard and dirty blond hair. She estimated his weight at around 260 to 270 pounds. She saw that Tony Dee was driving a black Bronco when he picked up decedent. Decedent asked the coordinator to wait for him, but he never returned. She could not definitely identify defendant at trial. Comparing defendant with the person she had seen, she said that Tony Dee appeared a lot heavier than defendant.
On February 16, 1985, a man gathering firewood off a dirt road about a quarter of a mile from the parkway in Absecon discovered decedent's body and called the local police. The body had twelve stab wounds plus additional defense wounds on the hands. The stab wounds pierced the bowel, liver, and lung and cut the main blood vessel returning blood to the heart.
On February 18, 1985, at about 6 p.m., a police officer went to the Seaview Mall in Ocean Township to meet defendant, who had reported that his car had been stolen from the parking lot. The car was a dark blue 1985 Ford Bronco. On February 24, 1985, the car was found parked on a sidewalk in New York City. It was a brand new vehicle but had used tires. The front passenger seat had been removed and someone had tried to set the inside of the car on fire. It had no license plates, the ignition had been popped out, and the radio was missing. A leather jacket was inside.
New Jersey investigators retrieved the jacket from an evidence warehouse in New York City, two-and-a-half years after it was found. It had initially been at the 43rd precinct in the Bronx before it was taken to the warehouse. A New Jersey State Police chemist tested the jacket and found that it contained a light coating of human blood on the front and sleeves.
Genetic markers could not be found because of the two-and-one-half year lapse of time.
The car was taken to a car dealership in Neptune, New Jersey. A Monmouth County Prosecutor's investigator went to see the car on March 27, 1985. The car had been purposely set on fire a second time, blistering the paint on a car next to it.
Defendant's brother-in-law identified a photo taken in September 1984 that showed defendant in the early stages of growing a beard. He had found pictures shortly before trial in his mother's photo album. They were allegedly taken on the occasion of defendant's wedding anniversary. A co-employee of defendant in 1984 and 1985 said that defendant was about thirty pounds heavier then. He thought defendant had had a beard at some time but wasn't sure exactly when.
A former employee of Melveney who had met defendant at lunch sometime before November 1984 thought defendant had a beard. He wasn't sure but thought defendant was not as heavy in 1984 as at the time of trial. Defendant's family doctor testified that his records showed that from 1984 to 1989 defendant had weighed around 270 to 280 pounds and there hadn't been any big swings in his weight. He only saw defendant once or twice in some years, and in 1987 he did not see him at all. He said that defendant never had a large belly.
In January 1985, a month before the murder defendant had a beard according to the testimony of his boss. He said that defendant "had a beard up until shortly after January 1989." A co-employee who had also worked with defendant at the end of 1984 said that defendant had a beard then. A thirty-year friend of defendant testified that defendant had not had a beard during the previous ten years. He said that he and his wife had gone out with defendant and his wife on defendant's anniversary in January 1985 and that defendant did not have a beard then. He also asserted that over the prior ten years defendant didn't wear flannel shirts and jeans. He later acknowledged
that a picture taken on February 11, 1988 showed that defendant was wearing such clothing.
Defendant's daughter testified that he had not had a beard since he had been in the communications business when she had been "little." She was now twenty years old. She identified a photo she said she had taken after her parents' anniversary in January 1985. Apparently, the picture showed her father without a beard. She acknowledged that the photo was stamped "December, '85" on the back.
Defendant's two brothers said that they had never known him to wear a beard. Two long-time friends said the same thing. However, defendant's own testimony revealed that he had had a beard sometime in the early 1980's while he was working for his brothers. He could not remember exactly when he had had a beard, but claimed that when he was working in construction he had worn a beard from about September to August each year, shaving it off for Christmas because his wife didn't want a beard in the Christmas pictures. He had told investigators that he had not had a beard in the last ten years.
Defendant identified a picture taken on his father-in-law's birthday in 1983 or possibly 1984. He also identified the anniversary photo previously referred to by his witnesses. He said it was taken following his sixteenth anniversary, but he did not say what year that was. The Judge refused to admit the anniversary pictures into evidence because defendant failed to testify as to when they were taken.
The day before the jury began hearing evidence, the prosecutor told the trial Judge that on the previous Friday he had discovered new information regarding a telephone call allegedly made by defendant. The prosecutor indicated that it was originally believed the call had been placed from a phone booth but it turned out that the call had been made through the switchboard of a motel in Atlantic City. Investigators went to
the motel and found a registration card they concluded had been signed by defendant using a fictitious name and address.
The desk clerk at the Atlantic City motel identified a signed registration card that showed that someone named Tony Dee had registered on February 14, 1985. When Tony Dee signed the register he showed his address as 131 Brown Street in Fort Lee. There is no Brown Street in Fort Lee.
The prosecutor requested that the court order defendant to submit handwriting examples to be examined by an expert. Defendant's attorney did not object, and the Judge directed defendant to give the exemplars. The Judge reserved on whether the State could introduce samples of signatures without expert testimony.
An assistant manager in Customer Sales and Service for New Jersey Bell reviewed a number of telephone records, including those for Melveney's home in Spring Lake Heights. They showed a collect call on February 13 from a public telephone at Harrah's to Melveney's home. On February 13, 1985, at 8:33 p.m., another collect call was made to Melveney from another public phone at Harrah's.
At 7:25 a.m. on February 14, 1985, the day decedent disappeared, a call was made from defendant's home phone to decedent's home. This was the approximate time at which decedent's wife had talked to Tony Dee. At 9:39 a.m., on that morning a call was made from Bound Brook to decedent's residence and billed to defendant's phone. It was made from the Cedar Grove Country Store, only a quarter mile from where defendant worked.
At 7:17 p.m. on that same day, a call was made from Melveney's home to the Atlantic City motel where Tony Dee had registered. At 10:07 p.m. a collect call was placed to Melveney from a pay phone at the Tropicana, and at 10:35 p.m. a collect call was placed to the home of defendant from a pay phone in Brigantine. There was also a collect call later that
night to Melveney from a phone booth on the Garden State Parkway in New Gretna at ...