Judges Long, Wefing and Carchman.
The opinion of the court was delivered by: Carchman, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from Superior Court of New Jersey, Law Division, Essex County.
This appeal requires us to determine: a) whether a prosecution for tampering with a witness, N.J.S.A. 2C:28-5a, requires the State to distinguish between tampering with physical evidence or testimony; and b) whether the trial Judge committed plain error by failing to include in the jury charge a definition of "knowingly" as "being aware that it is practically certain that defendant's conduct will cause the forbidden result," and "purposely" as taking a "substantial step which is strongly corroborative of the actor's criminal purpose." We answer both questions in the negative and affirm the conviction.
Defendant Claus P. Speth appeals from a conviction for third-degree tampering with a witness, N.J.S.A. 2C:28-5a. Two additional charges -- fourth degree tampering with physical evidence, N.J.S.A. 2C:28-6, and fourth degree false swearing, N.J.S.A. 2C:28-2, -- resulted in a deadlocked jury. These charges remain outstanding. *fn1 The trial Judge sentenced defendant to two years probation and a fine of $125, and a post-judgment motion challenging the verdict was denied. *fn2
The facts described at trial are complicated and require extensive exposition. On August 13, 1993, Ronald Puttorak, forty-three years old, was arrested for sexual assault and placed in protective custody in the Essex County Jail. Approximately six hours after the commencement of his incarceration, his lifeless body was found hanging from a cell door. When Geetha A. Natarajan, M.D., an assistant medical examiner, arrived at the scene, the body had been cut down. After requesting a demonstration of how the body was found, Natarajan received an explanation, which she later related:
"According to the correction officer, he was found with his back against the door, against the railings, the metal railings of the door, and he had tied the sheet, he had twisted the white sheet into "a ligature."
[He h]ad tied it on one of the rails of the door on one of these cross bars and tied it around his neck and his slide [sic] forward because if he had stood up it will [sic] not cause compression because he's tall and this [sic] cross bars are not that high because of the door of the cell.
So what he did is, in order to compress the neck, in order to hang, he had to slid [sic] his body forward into the cell in the position in which . . . you can see the correction officer there by causing compression to the neck by the application of that sheet and sliding forward."
At the medical examiner's office, Natarajan assigned the Puttorak case to Marie Jose Macajoux, M.D., a New York City medical examiner, who was also working part-time as a forensic pathologist at the New Jersey Office of the State Medical Examiner. After conducting an autopsy and further examinations, Macajoux and Natarajan confirmed that Puttorak's death was a suicide and that the hyoid bone, a bone located in the neck area which would prove critical to this prosecution, did not reveal a fracture. In sum, the hyoid bone was "unremarkable."
In October 1993, an attorney representing the Puttorak family contacted the Essex County Prosecutor requesting to see the prosecutor's file, as well as the State medical examiner's file, with respect to Puttorak's death. At the family's request, defendant examined some evidence at the medical examiner's office.
Defendant, accompanied by a Mr. Harmatz, who defendant identified as a criminologist, and Jeanette Aguilar, a technician in the medical examiner's office, opened the evidence bag and removed Puttorak's organs, which had been preserved in formaldehyde. No one other than defendant handled the neck while in the room, and, except for a brief period when she left to ask for permission for defendant to photograph the exhibit, Aguilar remained in the room with defendant.
Defendant took out the neck last, put it on the counter and photographed it. Six photographs were taken just after he removed the neck from the bag but before he examined it. Aguilar later was shown photographs taken while defendant had examined the neck. Although she was unable to determine whether the neck depicted in the photographs was the Puttorak neck, Aguilar was able to say that the photographs did not depict what she saw later when Natarajan showed her the specimen, specifically a broken hyoid bone.
Aguilar testified that defendant then took the neck "in his hand and examine[d] it by taking his thumbnail and rubbing it and scraping off the tissue on the bone." The tissue that defendant had pushed away with his thumbnail was in the area of the hyoid bone, but Aguilar did not see or hear defendant break or snap the bone.
As defendant used his thumbnail to either scrape or pick at the tissue on the bone, he asked Harmatz to take photographs while he held the neck at different angles. Aguilar estimated that forty photographs were taken. While this transpired, defendant told Harmatz that "`she messed [sic] a fracture.'"
According to Aguilar, defendant said the fracture was on the right side of the hyoid bone. Although Aguilar was standing next to defendant at the time, she did not see the fracture, and defendant did not show it to her. Defendant also said that there was a hemorrhage on the right side. Aguilar did not observe the hemorrhage either.
After defendant had concluded his examination, he returned all the organs to the bag. Aguilar secured the organs, returned the key to her supervisor, Lombardi, and told him that defendant said he found a fracture and hemorrhage on the right side that had been missed.
Aguilar reported the episode with defendant to Natarajan. Natarajan examined the specimen in Lombardi's and Aguilar's presence. She observed that the specimen was different from when the autopsy was conducted insofar as "there was a clearly recognizable fracture of the hyoid bone on the left side" and the "surrounding area of the fracture was devoid of any tissue." Natarajan continued: "The periosteum, which is the membrane that covers over [the hyoid bone], appeared to have been partly scraped, and there was absolutely no hemorrhage in any of the tissue that is adjacent to the fracture area." Both Aguilar and Lombardi observed the hyoid bone fracture but no hemorrhage.
Despite Natarajan's trial testimony about the location of the fracture on the left side of the hyoid bone, she explained that at the time she first examined the bone, she was holding the bone backwards and, as a result, had mistakenly believed the fracture was on the right side, which is the side that defendant said was fractured and had hemorrhage.
After Natarajan had completed the examination of Puttorak's neck, she wrote a memorandum to Robert Goode, M.D., also an assistant state medical examiner at the time, in which she described the fracture to the hyoid bone as "clearly fresh and artifactual." She defined an artifact as something that "had no real effect to the cause of death because it . . . looked like it was fractured after death, or after the specimen was fixed." Natarajan also wrote that she saw no evidence of hemorrhage surrounding the fracture, identifying the fracture's location as the "right greater cornu."
The next day, Goode examined the Puttorak neck. Like Natarajan, Goode found a bloodless fracture on the left side of the hyoid bone, as well as two bloodless fractures of the thyroid cartilage. However, as did Natarajan, Goode initially mistakenly believed the hyoid fracture to have been on the right side. *fn3 The fracture was not of the type that could be missed by an experienced forensic pathologist.
Goode asked five other pathologists, including Macajoux, to look at the neck and tell him what they saw. At trial, four pathologists testified that they saw a post-mortem fracture of the hyoid bone with no hemorrhage. Goode informed Macajoux that defendant had observed a fracture of the right hyoid bone and that there was hemorrhage. Macajoux saw an "obvious fracture of the hyoid bone." The fracture was not displaced but was "like a hinge fracture." It was located "[s]omeplace between the greater horns and the body of the hyoid bone." She could not remember at the time of trial whether the fracture was on the right or left side. Macajoux saw no hemorrhage.
Goode reported the apparent post-mortem fracture to the Attorney General's office. Clearly, he suspected that the integrity of the specimen had been compromised. Finally, in November, 1992, the Prosecutor's Office ceased cooperating with the Puttorak family attorney.
On January 7, 1994, a certification signed by defendant was submitted in a civil action captioned Estate of Ronald Puttorak v. Essex County Prosecutor's Office. In the certification, defendant stated that he had found a "significant fracture of the hyoid bone . . . associated with abundant hemorrhage," which, according to the certification, meant that "the fracture must have occurred while Mr. Puttorak was still alive." The certification further stated that "[t]his type of fracture may occasionally occur in this type of hanging but may also occur in association with other types of violence to the neck."
On April 5, 1994, defendant telephoned Michael Baden, a medical examiner whom defendant had known since the late 1960's, and told Baden of "concerns he had about a specimen of the hyoid bone that had become an issue in his life." *fn4 Baden summarized the purpose of defendant's call as follows:
"The basis for the call in large part was that he felt that the Medical Examiner's Office was making a mistake about the nature of a fracture to the hyoid bone that he had examined for a private case.
And that he felt that if he, Dr. Natarajan . . . and myself were to go down and look at the specimen together, that we could see that what he was saying was truthful and accurate and that it would resolve the matter without any further litigation.
I think he explained to me that he was concerned that this was going to go to a grand jury or there was an investigation in process and he wanted to have that stopped, and he felt that if we all agreed that he was correct in what he had seen, that would stop the litigation."
"Yeah. He had said to me also that there was a citizens committee for an effective medical examiner system in New Jersey who are very upset--I have here "who are infuriated by the way that he was being treated," and that this group felt that it was Dr. Natarajan's fault.
And he felt to me that if--and they were making various protests about what was going on and that he felt that if we all agreed, you know, that what he had said was proper, then the litigation could stop that was aimed at him and that this concerned citizens committee would also ...