On appeal from the Superior Court of New Jersey, Law Division, Morris County.
Michels, O'Brien and Havey. The opinion of the court was delivered by Michels, P.J.A.D.
In October 1985, the Morris County Grand Jury indicted defendant Thomas W. Johnston for (1) purposely and/or knowingly murdering Irmgard D. Johnston, his wife, a first degree crime, in violation of N.J.S.A. 2C:11-3a(1) and (2) (Count 1) and (2) knowingly and unlawfully possessing a hammer or bludgeon with a purpose to use it unlawfully against the person or property of another, a third degree crime, in violation of N.J.S.A. 2C:39-4d (Count 2). Mrs. Johnston's body was found by Patrolman William Post of the Montville Township Police Department under a tarpaulin approximately 40 to 50 feet into the woods next to the Johnston home.
Detective Post proceeded back towards the Johnston home, where he noticed a red fiber laying on the driveway. Then, as he was going up the stairs, Detective Post found another red fiber laying imbedded in the wood on the stairway. Detective Post entered the Johnston home, told Investigator Mark Meehan of the Morris County Prosecutor's Office what he had found and that at that point Post had concluded that defendant killed his wife. When Detective Post entered the Johnston home after 15 to 20 minutes outside, defendant was sitting at a little desk with a drawer in the dining room or kitchen. Because of his knowledge that defendant possessed weapons and that no one had searched defendant, Detective Post picked defendant up from where he was sitting, searched him, placed him under arrest, read him his Miranda rights and handcuffed him.
Dr. Ernest Tucker, a forensic pathologist and the Morris County Medical Examiner, conducted an on-site examination of Mrs. Johnston's body. Mrs. Johnston's body was lying face up in a shaded part of a woods covered by a tarpaulin with her feet pointing toward the house. Rigor mortis was well or completely developed and her body was cool. Fly eggs and insect bites were on her body, indicating that it had been there for some time. Mrs. Johnston's lavender shirt and bra had been pulled
up around her neck to expose her breasts. Her underpants and white trousers had been pulled down around her hips, exposing her pubic hair. Her shirt was drenched in blood and her pants were partially so. Mrs. Johnston was wearing neither shoes nor stockings.
Dr. Tucker's examination revealed that Mrs. Johnston had eight lacerations of her scalp deep enough to expose the underlying bone. She had a laceration above each eye deep enough to expose the underlying bone of the skull. She had lacerations on her left cheek, two black eyes, 14 to 20 bruises over her body, a bruised upper lip and her hair was full of blood. Mrs. Johnston's skull was fractured in five places, both on top of her skull and the sides, and her left jaw was fractured. In total, Mrs. Johnston's body contained more than 29 different injuries, most of them around the head. The bruises appeared to be chiefly defensive wounds on her arms and palms of her hands, suffered when she had tried to ward off her attacker's blows. Several of Mrs. Johnston's fingernails had been broken off, indicating she had tried to defend herself by scratching her attacker. Her body, face and left hand sustained injuries from the struggle, and she had bled so badly that there was virtually no blood left in her body. Moreover, when Mrs. Johnston was rolled over, there was little or no blood beneath her body. Dr. Tucker was of the opinion that these last two facts indicated that she had been killed elsewhere and that her body had been dragged to the place where it was found. Subsequently, it was determined that Mrs. Johnston had been murdered in the kitchen of her home.
Dr. Tucker opined that Mrs. Johnston's injuries were consistent with a blunt instrument attack, most likely a hammer, because two of her injuries were crescent-shaped, consistent with defense against that weapon. He surmised that Mrs. Johnston had been standing during the attack with the assailant in front of her at least part of the time, but that the fatal blow could have been delivered from behind.
Magnetic Resonance Imaging studies of Mrs. Johnston's head showed that the fatal injury was a depressed skull fracture on the top of her head which had allowed air to be drawn into the cranial cavity and had caused extensive bruising of the underlying brain tissue. Dr. Tucker was of the opinion that the cause of death was multiple skull fractures with injury to the brain.
Approximately one year after indictment, defendant, following plea negotiations, pleaded guilty to aggravated manslaughter in violation of N.J.S.A. 2C:11-4a. The State, for its part of the plea agreement, agreed to a maximum custodial sentence of 20 years with a 10 year period of parole ineligibility, a $100,000 fine, and the dismissal of the possessory offense charged in Count 2. In addition, "the sentencing Judge was to 'recommend and request' of the Commissioner of Corrections that defendant serve any custodial sentence at the penal facility location in Clinton, New Jersey." Within one week of entering his guilty plea, defendant wrote a letter expressing his dissatisfaction with the Disposition, the advice of his then counsel concerning a psychiatrist's preliminary report which seemed to negate defendant's insanity defense. As a result, the trial court temporarily assigned another attorney to assist defendant with an application to withdraw that plea. In November 1986, following a plenary hearing, defendant's motion to withdraw his guilty plea was denied. The trial court found defendant's motion to retract his guilty plea to be "merely a ploy designed to justify [defendant's] change of mind." Thereafter, the sentencing Judge committed defendant to the custody of the Commissioner of the Department of Corrections (Commissioner) for 20 years with a 10 year period of parole ineligibility and imposed a $100,000 fine and a $10,000 Violent Crimes Compensation Board (VCCB) penalty. The trial court dismissed the possessory offense charged in Count 2 and recommended that defendant serve his custodial sentence at the Clinton facility. Defendant appealed. In August, 1988, in an unpublished opinion, we vacated defendant's guilty plea and remanded the matter for trial on the original charges based upon the trial court's abuse of discretion
in refusing to allow defendant to withdraw his guilty plea. State v. Johnston, A-2055-86T4 (Aug. 25, 1988).
The case was tried in July and August, 1989. On the second day of trial, a Rule 8 hearing was held concerning the admissibility of testimony by defendant's daughter, Kirsten Johnston, concerning three of his prior acts. The trial court held the testimony admissible and relevant with respect to defendant's intent and state of mind. On the third day, the trial court found that the issue of self-defense had been fairly raised as an affirmative defense for defendant, and that the State was entitled to meet the issue. Later, defendant's motion to conduct a Rule 8 hearing of the State's psychiatrist was denied. Finally, at the Conclusion of the trial, defendant was found guilty of (1) purposely and knowingly murdering Mrs. Johnston in violation of N.J.S.A. 2C:11-3a(1) and (2) (Count 1) and (2) knowingly and unlawfully possessing a hammer or bludgeon with a purpose to use it unlawfully against the person or property of another, in violation of N.J.S.A. 2C:39-4d (Count 2). The trial court merged defendant's conviction for possession of a hammer with a purpose to use it unlawfully against the person or property of another under Count 2 into his conviction for murder under Count 1 and committed defendant to the custody of the Commissioner for a life term with a 30-year period of parole ineligibility and imposed a $100,000 fine and a $10,000 VCCB penalty. Defendant appeals.
Defendant seeks a reversal of his conviction or, alternatively, a modification of his sentence on the following grounds set forth in his brief:
I. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY DENYING DEFENDANT'S MOTION TO SUPPRESS TAPE RECORDINGS SEIZED IN VIOLATION OF DEFENDANT'S FOURTH AND FIFTH AMENDMENT RIGHTS.
II. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY INTERPOSING SELF-DEFENSE AS AN AFFIRMATIVE DEFENSE AT TRIAL.
III. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY ALLOWING DR. TRENT TO TESTIFY WITHOUT CONDUCTING A
HEARING AS TO WHETHER OR NOT THE DOCTOR RELIED ON CERTAIN EXPERT REPORTS IN FORMULATING HIS OPINION.
IV. THE TRIAL COURT'S CHARGE WAS DEFICIENT IN ITS FAILURE TO ADDRESS THE PROPER ROLE OF PASSION/PROVOCATION EVIDENCE IN ITS INITIAL CHARGE FOR PURPOSEFUL MURDER.
V. THE COURT ERRED AS TO ITS CHARGE OF INTOXICATION AND DIMINISHED CAPACITY.
VI. DEFENDANT'S SENTENCE WAS EXCESSIVE.
In addition, defendant raises the following issues in his pro se supplemental brief:
JUSTIFICATION FOR REVERSAL:
A. JUDGE SMITH LACKED KNOWLEDGE AND MADE SUBSTANTIAL ERRORS
I. JUDGE SMITH MADE SIGNIFICANT CONTRIBUTIONS TO THE WRONGFUL VERDICT THROUGH HIS LACK OF KNOWLEDGE AND UNDERSTANDING OF PERTINENT LAW.
B. PROSECUTORIAL MISCONDUCT CONTRIBUTED TO A WRONGFUL VERDICT
II. EVIDENCE WAS ILLEGALLY SEIZED, AND EXCULPATORY EVIDENCE WAS EITHER LOST OR DESTROYED BY THE PROSECUTOR, OR BY THOSE TO WHOM HE GRANTED UNAUTHORIZED ACCESS.
III. NEW EVIDENCE HAS BEEN DISCOVERED THAT REFUTES THE PROSECUTOR'S SUCCESSFUL EFFORT TO DISCREDIT TRUTHFUL TESTIMONY.
IV. THE PROSECUTOR MISLED THE JURY THROUGH UNETHICAL MANIPULATION THAT MADE SIGNIFICANT CONTRIBUTIONS TO THE WRONGFUL VERDICT.
C. THE JURY WAS MISLED, CONFUSED, AND RUSHED
V. ONE OF THREE JURORS WHO ATTENDED THE SENTENCING REPORTED THAT THE VERDICT WAS LARGELY BASED ON A LIE FABRICATED BY A WITNESS TO AVOID REVEALING HIS CONTRIBUTION TO THE HOMICIDE.
VI. THE JURORS WERE CONFUSED, WERE DENIED THEIR REQUEST FOR CLARIFICATION, AND THEY PRE-DETERMINED A TIME LIMIT THAT WAS TOO SHORT FOR ADEQUATE DELIBERATION.
We have carefully considered these contentions and all of the arguments advanced in support of them by defendant, through counsel and in his pro se supplemental brief, and with the sole exception of the issue of newly discovered evidence raised under Point 0 III of the pro se supplemental brief (which ...