On appeal from Superior Court of New Jersey, Law Division, Middlesex County, I-97-05-633.
Before Judges Wallace, Jr., Carchman and Parrillo.
The opinion of the court was delivered by: Carchman, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Following the death of her children's nanny, Imelda Ritua (Imelda), and the separate jury trial of her husband, Ejaz Baluch (Ejaz), defendant Marcelina Baluch was convicted by a jury of second-degree reckless manslaughter, N.J.S.A. 2C:11-4b(1), third-degree aggravated assault, N.J.S.A. 2C:12-1b(7), and third- and fourth-degree hindering of her own and Ejaz' apprehension, N.J.S.A. 2C:29-3b, -3a. Defendant was sentenced to an aggregate term of five years-nine months' imprisonment. She appeals.
During his trial, Ejaz testified on his own behalf and implicated defendant as Imelda's assailant. During defendant's trial, when called as a witness on behalf of the State, Ejaz sought to invoke his spousal privilege, and after being compelled to testify, recanted his earlier statement and exculpated defendant. He then claimed that a statement he had given to a friend immediately after discovering Imelda's body inculpating defendant was also false. Defendant challenges a number of the trial judge's rulings. While disposing of her various claims, we specifically address the scope and waiver of the spousal privilege, as well as the admissibility, as substantive evidence, of prior inconsistent statements proffered by a party's witness at an earlier plenary trial. As to these two primary issues, as well as the remaining claims asserted by defendant, we conclude that the trial judge did not commit reversible error, and affirm.
The scope of asserted error and the complex history of this case necessitates an expansive, detailed recitation of both the procedural and factual background.
In the morning hours of March 13, 1996, the State Police discovered Imelda's clothed body bound in twine and dark plastic garbage bags on the shoulder of Burlington County Road 542 in the Pinelands. She was easily identified, as her name had been written on the inside of her slacks. Further investigation revealed that she was twenty-eight years old, and that she had emigrated from the Philippines to the United States on October 6, 1994, ostensibly to work under the sponsorship of the Fitzpatrick Hotel in Manhattan, where Ejaz served as comptroller, and under whose auspices Ejaz had filed Imelda's false work-visa application without the hotel's permission.
The Baluchs admitted that they actually brought Imelda directly to the United States to become their housekeeper and live-in nanny to their two young children after defendant resumed employment as a registered nurse in the Intensive Care Unit of Newark Beth Israel Hospital. In addition to her childcare and housekeeping duties, Imelda also gave Ejaz regular evening massages for "tips." Imelda's employment with the Baluchs was arranged with the aid of defendant's sister from the Philippines, Lolita Sagadraca, who, according to Ejaz, filed false documents concerning Imelda's work credentials in that country at his behest.
Imelda's seventeen-month stay with the Baluchs was an unpleasant one, as both Ejaz and defendant admitted that they verbally abused and "slapped" her occasionally for various housekeeping and childcare errors. Imelda's stay apparently became decidedly less comfortable when Lolita arrived as a tourist five months later and remained on a fraudulently obtained work visa. Lolita displaced Imelda from her bedroom to a sofa-bed in the basement, and commuted with Ejaz to Manhattan daily, where she worked in the Fitzpatrick Hotel as a chambermaid. According to the Baluchs, Lolita was "very critical" of Imelda, "tende[d] to slap her right and left" herself, and encouraged the Baluchs to be less kind to her because she was only "a maid." By early 1996, the Baluchs had decided to send Imelda back to the Philippines and to import her replacement, again on false papers to be submitted by Ejaz and Lolita.
On her last regular day off, Sunday March 10, 1996, Imelda went to New York to visit friends and St. Patrick's Cathedral. She returned to the Baluchs' home that evening at approximately 6:00 to 7:00 p.m., tired, but un-bruised and seemingly healthy. After she ate dinner with the family, Ejaz asked her for a massage, and defendant and Lolita then both went to bed.
On Monday, March 11, Lolita and Ejaz left for work together at approximately 8:15 a.m., and did not return home until approximately 9:00 p.m. Defendant was at home with Imelda for at least part of the day, and claimed to have given Imelda the day off because she was not feeling well.
By 9:30 that evening, Imelda was dead in the basement laundry room. The immediate cause of death was anoxia. She also had five broken ribs, multiple contusions, and fat globules and bronchopneumonia in her lungs. Rather than reporting her death, the Baluchs bound her body in a sheet, garbage bags, twine, and a rug, loaded it into a rented van, and, on March 12, 1996, dumped it by the side of the road in the Pinelands. Ejaz subsequently disposed of the rug and the remainder of Imelda's clothing. The Baluchs then disseminated the fabrication that Imelda had voluntarily left their employ to visit friends or relatives on March 3, when they drove her to the Metuchen train station and placed her on a train for parts unknown.
The Baluchs were arrested after a year-long State Police investigation, including numerous interviews with defendant, Ejaz, and Lolita, as well as with Ejaz' and defendant's friends and co-workers. They were jointly indicted for purposeful or knowing murder, N.J.S.A. 2C:11-3a(1), (2), second-degree aggravated assault, N.J.S.A. 2C:12-1b(1), third-degree criminal restraint, N.J.S.A. 2C:13-2, and third- and fourth-degree hindering apprehension or prosecution of themselves and each other, N.J.S.A. 2C:29-3b, -3a.
Due to "differently admissible" proofs, the Baluchs were tried separately. Ejaz and defendant each proceeded on the theories that pneumonia, an accidental fall down the stairs, or fat emboli resulting from assault-related injuries caused by each other had induced Imelda's death. Each also contended that the other was the dominant marital partner who had promoted disposing of Imelda's body and lying to the police in order to hinder their apprehension.
Ejaz testified on his own behalf at his trial. His defense was based, in part, on the theory that defendant had beaten Imelda on the day of her death, that Imelda had fallen down the stairs in the course of that beating, and that, against his express wishes to notify authorities of Imelda's death, the Baluchs had agreed to dispose of her body because defendant had "cried and begged him not to call the police." At trial, Ejaz described the sequence of events in which he then placed a telephone call to enlist the aid of his friend, Mian Hussain, to dispose of the body. He stated that he called Hussain at approximately 10:15 p.m., while still "in complete shock," and said:
A I told [Hussain] that I just got home and I found that my babysitter is dead and obviously she had died with some natural causes which I don't know, we don't know what they are, but she did have bruise and my wife did beat her up today or she hit her or whatever and during the course when that happened she also fell from stairs, so I said to him I don't know what to do, I asked him if he could tell me. He said to call the police. I told him I call the police they're going to arrest my wife, I can't let police arrest my wife.
Ejaz later acknowledged that his strategy of "shift[ing] the blame" for Imelda's death and disposal to defendant "to gain the sympathy of the jury" was largely successful. He was acquitted of all homicide charges, convicted only of the aggravated assault and hindering charges, and sentenced to a probationary term conditioned upon his payment of Imelda's funeral expenses and 364 days in the county jail. By his own account, he "won."
After his trial, Ejaz' factual contentions changed. He joined in defendant's defense at her subsequent trial asserting that he was the "controller" in the family, that defendant was but a "dutiful, obedient" wife, that he had lied to Hussain about defendant beating Imelda in order to induce his aid, and that he had actually instigated the disposal of Imelda's body himself to hinder the Baluchs' apprehension for making the fraudulent visa applications for Imelda, Lolita, and Imelda's intended replacement.
Defendant moved in limine to exclude: (1) Ejaz' testimony, claiming spousal privilege, N.J.R.E. 501(2)(a); and (2) defendant's co-workers' anticipated prior bad acts testimony, as irrelevant and unduly prejudicial, N.J.R.E. 402, 403(a), 404(b). The judge denied the motions, reasoning:
With regards to the spousal immunity . . . . [t]he old Rule 23 read, if you look at it, counselors, to the effect that both parties, the spouse and the defendant, had to consent in order for testimony to come in. That's not applicable any more. The rule was changed and the rule now clearly, clearly gives that privilege to the spouse witness . . . . In this case that would be Ejaz Baluch, the husband. He holds the privilege. He does not want to testify, he does not consent to testify; therefore, if the State is going to be able to call him as a witness I would have to find . . . that there has been a waiver of that privilege. Now, we all know, it is quite clear from the law . . . that the reason for the privilege, the spousal privilege, is the harmony or the maintenance of harmony in the marriage, in the relationship as husband and wife of the family.
In this particular case Ejaz Baluch in his case took the stand voluntarily, intelligently, without any pressure of any kind and he testified at length. He disclosed all of the information which is now sought to be excluded by the wife from her trial. He has in fact published all the information that would have been privileged, that would have not ever seen the light of day had he not testified and answered the questions of his lawyer. It is quite clear that under . . . N.J.R.E. 530, Ejaz Baluch has in fact waived his 501(2) privilege by testifying in his own behalf and by offering or giving the information to the jury in that case and actually to the public at large, it was widely publicized at the time of trial, so that in effect the policy considerations of the State have already been defeated by Mr. Baluch himself by volunteering the information. The information has been disclosed. Any damage that was going to occur, that was going to happen to the marriage, should have already happened. Obviously it has not had an effect and obviously he has in fact waived his spousal privilege; therefore, the motion . . . with respect to spousal privilege is denied. I find specifically that Ejaz Baluch has waived that privilege and that he is in fact the holder of the privilege.
With regards to the statements [of] the co-workers, those statements are all admissions. No one argues differently. We have State versus Cofield, State versus Nance and other — State versus Brown, Conway, other cases, and it's quite clear that in order for the evidence to be admissible it has to be relevant to a material issue, it must be similar in kind and reasonably close in time to the offense charged. The evidence of the other crime must be clear and convincing and the probative value of the evidence must not be outweighed by its prejudice.
The State's argument quite clearly is that that evidence comes in under 404(b) in order to establish intent, identification and motive. It is quite clear that the evidence is admissible for those purposes . . . under 404(b).
I find that all of that evidence would in fact be material and relevant to the issues before this Court and I also find that the probative value . . . of that evidence is not substantially outweighed by any prejudicial effect that it might have. The rule is that the evidence will only be excluded if its probative value is substantially outweighed by the risk of undue prejudice. I find that this evidence, its probative value, is not substantially outweighed by the risk of undue prejudice. The Court obviously will have to charge the jury appropriately so that they do not misuse the evidence and draw the inference that . . . this defendant would have a propensity to commit an act because of the prior history. Obviously that type of charge . . . will be necessary.
The judge subsequently denied Ejaz' motion to quash the State's subpoena on Fifth Amendment privilege grounds, noting that under State v. DeCola, 33 N.J. 335 (1960), the court's compulsion of his testimony would confer automatic immunity against Ejaz' prosecution for any perjury he may have committed while testifying at his own March trial. Defendant's trial proceeded accordingly, with both parties relying heavily upon the witnesses' prior statements and the transcript of Ejaz' trial to impeach witness credibility at defendant's trial.
The manner of Imelda's death was placed squarely at issue by defendant prior to any substantive medical testimony, as defense counsel explored the qualifications of the State's expert, Burlington County Medical Examiner Dante A. Ragasa, M.D., on voir dire:
Q: One of the things a forensic pathologist does is determine a manner of death, correct?
Q: And there's five manners of death, correct? There's natural death, accidental death, correct?
Q: And one of the things a forensic pathologist does is determine the manner of death, correct?
Q: Okay. Now in determining the manner of death homicide is a medical definition that you use, correct?
A: Actually it's a legal term, terminology.
Q: Well, what homicide means in determining manner of death, determine that it's a homicide, you mean it was caused by a human agency, correct, another human being? Correct?
Ragasa was deemed qualified to testify as a pathology expert, and set forth his findings and opinion as to the cause and manner of Imelda's death. We reiterate those detailed findings, as the cause of Imelda's death was in significant dispute.
Ragasa described multiple contusions on Imelda's body, including extensive bruises of varying ages, ranging from one day to two weeks old, on her back, buttocks, and the back of her legs. He noted a bruise above Imelda's right breast determined to be less than one week old, an older bruise above her left breast, and bruising estimated to be one to two days old below her right eye and on the right side of her pubis, lower abdomen, and various areas of the front and side portions of both legs. He also noted a dimpled area on Imelda's center forehead at the hairline, bulging in the left parietal temporal area under her hair, lacerations or abrasions on the top of her left ear, nose, and upper lip, as well as dried blood on her toes and left ear, and foot edema, indicating that Imelda had suffered those injuries and heart failure before her death.
His internal examination revealed two right- and three left- rib fractures in the breast areas with recent adjacent soft- tissue hemorrhages indicating that the fractures were likely one day, but perhaps up to one week old. The exam also revealed extensive hemorrhaging in Imelda's scalp indicating multiple blunt-force traumas pre-dating the rib injuries, heart failure and related lung congestion, and scattered areas of inflammation in normal weight lungs indicating early-stage bronchopneumonia pre-dating the rib fractures. Notably, he observed several fat emboli in her lungs caused by her soft tissue injuries or rib fractures. Based on these findings, Ragasa opined that Imelda died of anoxia caused by "fat embolism secondary to the multiple contusions and rib fractures with bronchopneumonia." When asked what that meant, Ragasa replied, "It means it's a case of homicide," and explained that considering her age, Imelda would not have died from the pneumonia alone. Defendant did not object to Ragasa's characterization or conclusion.
On Ragasa's cross examination, in addition to advancing the notion that Imelda's injuries and fatal anoxia had been caused by pneumonia rather than assault-related fat emboli, defendant also attempted to adduce proofs that Imelda's rib fractures and scalp injuries might have resulted if the pneumonia had caused Imelda to fall down a flight of stairs:
Q: The decedent could have fallen down the steps because of the pneumonia and sustained a rib fracture and head bruises in the manner that she displayed them on your examination, couldn't she?
Q: My question is that that's consistent with the decedent falling down steps because of pneumonia, correct?
A: It can happen. The decedent can fall down the steps even without the pneumonia.
Q: Right. And get those types of injuries, correct?
Defendant's pathology expert, John E. Adams, M.D., opined that Imelda died of diffuse pneumonia. He further opined that the onset of pneumonia predated Imelda's injuries, and predated her death by at least two days. He agreed that Imelda had sustained bruises on both sides and the back of her scalp, under her right eye, and on her shins and chest before her death, but attributed the remaining discoloration of her body to post-mortem insect activity and lividity, or pooling of the blood due to gravity. He attributed the ear laceration to post-mortem mouse activity. He estimated that Imelda's rib fractures and scalp injuries had occurred at approximately the same time, eighteen to twenty-four hours before death, or on Sunday, March 11, and that her visible bruises were two days old or less. Finally, he opined that because the pneumonia predated her injuries, "one possible scenario" was that "[they] all could have been sustained in one or more falls down the steps."
On cross examination, Adams conceded that as to manner of death, Imelda's contusions and broken ribs "could be the result of repetitive striking by someone else," that it was "entirely possible" that the rib fractures may have contributed to her death by impairing her pneumonia-compromised breathing, and that "if the broken ribs were inflicted by someone else then that would make it . . . a homicidal death," "because that's the definition of homicide. It's the death of someone at the hands of someone else." Defense counsel neither objected to the line of questioning nor moved to strike Adams' responses.
Ejaz claimed that he "lied" at his own trial and falsely "shifted the blame" for Imelda's death and hindering the Baluchs' apprehension to defendant in order to "gain the sympathy of the jury" and secure his acquittal on the criminal homicide charges. After being declared a hostile witness, N.J.R.E. 611(c), he admitted that he called his friend Hussain after discovering Imelda's body. He claimed that Hussain hated defendant, and that his statement to Hussain that defendant had beaten Imelda was merely a fabrication calculated to induce Hussain's aid in disposing of the body by evoking his sympathy for Ejaz and the predicament defendant had created:
Q: You testified at your trial you were going to call the police, correct?
A: That's correct, but I lied.
Q: You testified at your trial that your wife cried and begged you not to call the police, correct?
A: It was a lie, yes. I had to shift the burden at that time to defend myself.
Q: And you didn't do anything to Imelda, did you?
Q: And you called a man by the name of Mian Hussain?
Q: And the reason that you called Mian Hussain was to help you dispose of the body?
Q: You and your wife decided that time you were going to dispose of the body so the body couldn't be traced back to your family?
Q: You planned it by yourself? It was your idea?
Q: And the reason that you wanted to dispose of the body was because your wife beat up Imelda?
Q: And the reason you wanted to dispose of the body was because you wanted to protect your wife?
Q: Do you recall telling Mian Hussain that the reason you wanted him to help you dispose of the body is because your wife beat up Imelda?
A: Yes, I told him because I wanted to earn his sympathy because he hates my wife. If I tell him anything with me he's not going to do anything for me.
Q: You told Mian Hussain the reason you wanted him to dispose of the body you were afraid the police were going to arrest your wife?
Q: You told Mian Hussain the reason you wanted him to dispose of the body with you you wanted him to protect your wife?
A: That is not correct. I did tell him, but that's not correct.
THE COURT: The question is did you tell him that.
Q: And you did tell him that your wife beat up Imelda, right —
Q: — and that's the reason she died? Did you tell that ...