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State v. Myrtle

April 2, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOEL MYRTLE, JEAN, JOE, JONAL, MYRTIL, MYTIL, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 01-04-1941.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 4, 2008

Before Judges Parrillo, Gilroy and Baxter.

Following a ten-day jury trial, defendant Joel Myrtle, who represented himself, was convicted of the first-degree murder of Diana Ahiahornu, N.J.S.A. 2C:11-3(a)(1), (2). He was sentenced to a term of thirty years of imprisonment with no possibility of earlier parole.

Defendant, again pro se, appeals, challenging his judgment of conviction on numerous grounds including 1) the prosecutor improperly instructed an investigator to testify at trial that defendant's palm print had been found on Ahiahornu's automobile; 2) investigators took possession of defendant's suit for testing purposes without his consent; 3) defendant was improperly precluded from cross-examining the State's investigators at trial; 4) defendant was denied a fair trial because the jury was not randomly selected; 5) defendant's initial counsel improperly abandoned him during the hearing on defendant's motion to suppress certain evidence; 6) the trial court erred in denying defendant's motion to suppress certain evidence; 7) an investigator tampered with a defense witness at trial; 8) defendant's conviction should be reversed because it is purportedly based, in part, upon a forged document; 9) an investigator testified falsely at trial concerning the home address of Ahiahornu and her mother; 10) the trial court erred in precluding defendant from addressing a particular topic during his cross-examination of a prosecution witness; and 11) the trial court erred in precluding "defendant's key witness" from testifying at trial. We affirm.

The events leading to Ahiahornu's bludgeoning death on August 6, 2000 occurred earlier that summer when defendant, a native Haitian who emigrated to the United States in 1982, was forty-five years old and his victim, who emigrated from her native Ghana in 1998, was thirty-one years old. According to the State's proofs at trial, Ahiahornu lived with her parents, William Damakloe and Martina Attipoe, in an apartment building in Newark. She worked as a security guard at the Newark Museum, and also attended classes at a college, where she was studying to be a nurse.

Ahiahornu attended services at the Love of Jesus Family Church in East Orange on Sunday evenings in 2000. Defendant also attended the church, where he met Ahiahornu. Prior to purchasing her own car in July 2000, Ahiahornu rode to church with George Ukandu, her co-worker at the Newark Museum, whom she had invited to attend weekly sessions back in January 2000.

Ukandu had not known defendant until one Sunday evening in mid-June when defendant sat next to Ukandu during church services and, while Ukandu was praying, asked him where Ahiahornu was, obviously aware that she usually rode with Ukandu to church. Earlier that evening, Ukandu had driven to Ahiahornu's apartment to pick her up, but when she did not appear, he proceeded to church without her. Pressing Ukandu as to her whereabouts, defendant explained that he had an "appointment" to meet with Ahiahornu that evening. When defendant refused to accept Ukandu's explanation that he had not seen Ahiahornu that day, Ukandu angrily ended the conversation.

Ukandu told Ahiahornu about the incident the next day at work. However, she "denied she has [any] friend in the church." When Ukandu described defendant, Ahiahornu "started laughing and say [sic] that the man calls her house on the phone, and they talk on the phone, and they had no formal arrangement to meet at church that day." Yet, Ahiahornu never mentioned defendant's name, apparently because she did not know it.

Following that incident, Ukandu and Ahiahornu arranged that he would sit two rows behind her at the church services at the next Sunday evening service in late June 2000, so he could observe defendant's actions toward her. On that evening, Ukandu saw defendant approach and sit beside Ahiahornu and that "both of them talked all through the service time," even though Ukandu had never seen them together at the church before. At the end of services, Ahiahornu told Ukandu that "the Haitian man" had offered to drive her home, but Ukandu persuaded her to decline the offer, pointing out that neither she nor her mother (Attipoe) knew defendant very well. Ahiahornu then informed defendant that she would be riding home with Ukandu.

Actually, Attipoe had met defendant on two occasions prior to her daughter's death. On the first occasion, she and Ahiahornu were at a bus stop, when defendant drove up and offered them a ride to their destination. Ahiahornu introduced defendant to her mother as a member of her church, and the two women entered defendant's car and were driven by him to their destination.

On the second occasion, Ahiahornu's car had broken down in the church parking lot and defendant, who was an automobile mechanic, volunteered to repair it. After he fixed the car, defendant followed her home at her request to make sure that she arrived without problems. Attipoe met defendant in the apartment's parking lot, when he and Ahiahornu returned the car to Ahiahornu's parking space.

Another time during the summer of 2000, defendant telephoned Attipoe and told her that he was dropping off a letter for her daughter at the apartment building's security desk. However, Ahiahornu returned to the apartment earlier and retrieved defendant's letter herself. She later showed Attipoe defendant's letter, which she described as a "marriage proposal letter." On yet another occasion, defendant also sent her a greeting card containing a marriage proposal.

On Saturday evening, August 5, 2000, Attipoe overheard a ten-minute telephone conversation in which Ahiahornu and defendant were obviously arguing. Attipoe heard her daughter shouting "no, no, no" in the course of the argument.

The next evening, Sunday, August 6, 2000, Ahiahornu drove herself to church services at 8:00 p.m. Ukandu was also present, having arrived late and seating himself two rows behind Ahiahornu, who was seated between two women. They did not communicate that evening other than when she waved to him during the "call to prayer." When the service ended at 11:00 p.m., Ukandu left the church and drove away without ever seeing defendant in church or Ahiahornu leave the church that night.

Ahiahornu did indeed drive home later that evening and parked her car in the parking lot area assigned for residents of her apartment building. At the time, Betty Powell, a resident on the seventh floor of a nearby apartment building, was sitting by a window in her apartment. From this vantage point, she had a view of the well-lit parking lot where she saw Ahiahornu's car enter, only about a thousand feet away. Powell heard a "death scream" from the direction of the car and saw a tall, slim black man with a "close haircut" and wearing a beige shirt exit from the car's passenger side front door. The man peered into the car and then ran away.

Powell called a security guard and the two of them went to the car, where they found Ahiahornu unconscious, bleeding profusely, and "lying part in and part out of her car." Ahiahornu was transported to a hospital, where she died the next day. An autopsy revealed that the cause of her death was blunt force trauma to her head, as represented by six deep wounds on her scalp that resulted in multiple fractures in her skull.

The police investigation was headed by Detective Vincent Vitiello of the Newark Police Department and Investigator Nicole Berrian of the Essex County Prosecutor's Office. Following the autopsy, the medical examiner gave Vitiello and Berrian a "DNA card" that contained a sample of Ahiahornu's blood to be used in later DNA analysis, and as well a vial of Ahiahornu's blood for the same purpose.*fn1

Vitiello took the vial of Ahiahornu's blood to the police department's "evidence refrigerator," where it was stored, along with other items related to the autopsy. These items, including the DNA card, were subsequently sent to the New Jersey State Police Forensics Laboratory for analysis.*fn2

Vitiello's and Berrian's attention soon turned to defendant after Attipoe provided them with the marriage-proposal letter and greeting card that he had sent to Ahiahornu. On August 8, 2000, the two officers went to defendant's apartment, where they informed him that Ahiahornu had been brutally murdered two days earlier. Defendant's emotionless response and lack of curiosity "definitely piqued" the officers' interest.

Defendant agreed to accompany them to police headquarters to provide a formal statement. While defendant was changing his clothes prior to leaving, Berrian observed a newspaper on a coffee table, opened up to "an article about Diana Ahiahornu's death." Apparently, then, defendant was aware of Ahiahornu's death even before the two officers told him about it, which was at odds with his later statement implying that he first learned of Ahiahornu's death from the officers on their visit to his apartment.

Later at the police station, after he was advised of his Miranda*fn3 rights, defendant gave a signed statement, wherein he said that he had attended Sunday church services on August 6, 2000, was seated beside Ahiahornu during those services, and was wearing "a light black suit, brown shirt, black and white tie, and black shoes." He admitted to being "[v]ery friendly" with Ahiahornu, but denied any sexual relationship with her. In fact, he "wished to marry her," but had not yet proposed. Defendant also indicated that Ahiahornu appeared to be bothered by something while at church, but she did not discuss any of her concerns with him. He further stated that Ahiahornu had told him that she was "involved with a guy," but she provided no other details.

According to defendant, church services ended around 10:45 p.m., after which Ahiahornu entered her car alone and drove away. Defendant drove back to his apartment and did not leave during the night. At that late hour, he watched a documentary that had been televised in place of a program he usually watched at that time called "West 54th Street" on Channel 13.*fn4

After his written statement, Berrian and Vitiello asked defendant to take a polygraph test and provide a blood sample for DNA analysis. Defendant at first agreed, but later changed his mind. He was then driven back to his apartment.

Two-and-one-half weeks later, on August 28, 2000, Vitiello and Berrian returned to defendant's apartment and asked him to accompany them to the police station to provide buccal or cheek swab samples for DNA analysis and whole-hand prints for comparison with a palm print that had been lifted from one of the windows in Ahiahornu's car. Defendant agreed to the investigators' request, accompanied the officers to the police station, provided the samples, and was taken back to his apartment.*fn5

Shortly thereafter, the officers realized that they had neglected to ask defendant to provide them the clothing that he had been wearing at church on the evening of August 6, 2000. Berrian then telephoned defendant and asked if they "could come and get" the clothing. After defendant agreed to the request, the officers returned to defendant's apartment building where they were met by defendant in the driveway, carrying an olive-drab colored suit.*fn6 Berrian, who was in the car's front passenger seat, rolled down the window and was told by defendant that the suit was the one that he had been wearing at church service on August 6, 2000. According to both Vitiello and Berrian, defendant then gave Berrian the suit, she thanked him, placed the suit in a paper bag, and the two officers drove away.*fn7

Two days later, on August 30, 2000, Berrian delivered the suit, buccal swabs, and the items gathered from Ahiahornu's autopsy, including the DNA card with Ahiahornu's blood sample, to the State Police laboratory for analysis. That analysis took about six months. Two blood stains were found on the left side of the suit pants; one stain was located on the waistband and the other on the pocket lining. Both blood stains could be seen with the naked eye. Appropriate cuttings were made from the pants fabric and subjected to DNA testing. As a result of that testing, it was determined that the blood that stained defendant's suit had come from Ahiahornu. Based on the results of the DNA testing, defendant was arrested on February 21, 2001 for Ahiahornu's murder.

(I)

(A)

Defendant first argues that his constitutional rights were violated when the prosecutor instructed Berrian to testify falsely at trial. This contention is completely devoid of merit.

The contention centers on a palm print that was found on one of the windows of Ahiahornu's car, which Vitiello clearly testified at trial did not match defendant's palm print, and arises from the following questions posed to Berrian by the prosecutor:

[PROSECUTOR:] Was there any . . . direct evidence saying that the print that was found on the victim's car was made by her killer?

THE COURT: Do you understand the question?

[DEFENDANT:] Objection, ...


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