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State v. Choe

April 11, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JONG MOON CHOE, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Bergen County, No. I-97-08-1440.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 28, 2007

Before Judges Wefing, R. B. Coleman, and Lyons.

A one-count indictment charged defendant with the murder of his wife, Tok Sun Pae, N.J.S.A. 2C:11-3(a)(1)(2). Defendant did not appear for his trial and was tried in absentia in February 1999. The jury returned a verdict of guilty. Defendant was not taken into custody until 2003, at which point the trial court sentenced him to life in prison and specified that defendant would have to serve at least thirty years before becoming eligible for parole. Defendant has appealed his conviction and sentence. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Defendant raises the following issues on appeal:

POINT I

MOTION COURT'S FINDING THAT MR. CHOE WAS NOT A SUSPECT OR IN CUSTODY IS INCORRECT AS A MATTER OF LAW AND THEREFORE INVALIDATED ITS RULING THAT THE ALLEGED ADMISSIONS WERE CONSTITUTIONALLY VIABLE AND THEREFORE PERMISSIBLE FOR THE JURY'S CONSIDERATION. FURTHER FINDING THAT MR. CHOE WAS MIRANDIZED PRIOR TO POLYGRAPH IS FACTUALLY INCORRECT AND THEREFORE INVALIDATES RULING

POINT II

ASSUMING ARGUENDO THAT DEFENDANT WAS PROPERLY MIRANDIZED THE TWOFOLD ISSUE REMAINS IN THE APPLICATION OF THE TOTALITY OF THE CIRCUMSTANCES DOCTRINE: FIRST, DID MR. CHOE KNOWINGLY WAIVE HIS RIGHTS AND SECOND, WAS HIS WAIVER OF THE PRIVILEGE AND RESULTING ALLEGED STATEMENTS MADE VOLUNTARILY

POINT III

EXISTENCE OF DEFENSE WOUNDS AND UNSUBSTANTIATED TESTIMONY OF INVESTIGATOR AT MIRANDA HEARING THAT MR. CHOE CONFESSED TO STRANGLING HIS WIFE SEVERELY IMPLICATES UNTRUSTWORTHINESS OF MR. CHOE'S ALLEGED STATEMENTS THAT SHE WAS WORTHLESS AND THAT HE KILLED HER DURING HER SLEEP WHERE MEDICAL TESTIMONY INDICATED BLUNT TRAUMA TO THE HEAD. ALTHOUGH UNSIGNED SKETCH PURPORTEDLY DRAWN BY MR. CHOE WAS NOTHING BUT AN X-MARKS THE SPOT DIAGRAM AND CONTAINS NO INHERENT RELIABILITY THE MOTION COURT CONSIDERED IT TO CONCLUSIVELY DEMONSTRATE EVIDENCE OF THE RELIABILITY OF MR. CHOE'S OTHER STATEMENTS

(A)

No assessment of the credibility of the Senior Homicide Investigator was made by the motion court although he had written down the contents of the unrecorded confession seven (7) days after the fact and had critical details contrary to what the other Homicide Investigator testified to during the Miranda Hearing and therefore Mr. Choe's confession should be suppressed

POINT IV

UNIQUE CIRCUMSTANCES REQUIRED THAT THE MOTION COURT DETERMINE WHETHER OR NOT MR. CHOE INVOKED HIS RIGHT TO AN ATTORNEY WHERE THE INTERROGATION WAS NOT VIDEOTAPED AND A HOMICIDE INVESTIGATOR SPOKE TO HIM CONTINUALLY IN KOREAN AND THEREFORE HAD THE UNQUESTIONED OPPORTUNITY TO DEFLECT ANY REQUESTS FOR COUNSEL

POINT V

A NEW TRIAL IS MANDATED WHERE TRIAL IN ABSENTIA WAS PROHIBITED WHERE MR. CHOE NEVER RECEIVED NOTICE OF POSTPONED TRIAL DATE AND ISSUE OF WAIVER WAS NOT PROPERLY ADDRESSED BY COURT. IT EXEMPLIFIES A MANIFEST INJUSTICE TO BOTH [] MR. CHOE AND OUR SYSTEM OF JURISPRUDENCE (raised below)

POINT VI

ADMISSION OF PREJUDICIAL AND INFLAMMATORY PHOTOGRAPHS WERE NOT RELEVANT (raised below 6T65-10)

POINT VII

PROSECUTOR'S CONCLUDING STATEMENT TO THE JURY THAT THERE WAS "NO EVIDENCE THAT THERE WAS ANY RECKLESSNESS IN THIS CASE BUT THAT IN FACT THERE WAS A KNOWING AND PURPOSEFUL MURDER" ENCAPSULATED THE ENORMITY OF THE CONSTITUTIONAL ERRORS IN THIS MATTER (partially raised below)

(A)

STATEMENT CONSTITUTED AN IMPROPER ENDORSEMENT OF THE CREDIBILITY OF THE ALLEGED CONFESSION AND THE INVESTIGATOR WHO DID NOT TESTIFY AT THE MIRANDA HEARING

(B)

STATEMENT CONSTITUTED A GROSSLY UNFAIR AND INFLAMMATORY COMMENT ON INFORMATION KNOWN BY THE PROSECUTION TO BE INHERENTLY INCORRECT

(C)

STATEMENT WAS NOT RELEVANT AS TO THE MENTAL STATUS OF MR. CHOE FOR PURPOSES OF FIRST DEGREE MURDER (raised below)

POINT VIII

JURY CHARGES READ AS A WHOLE VIOLATED DEFENDANT'S RIGHT TO A FAIR AND IMPARTIAL TRIAL

(A)

TRIAL COURT INTERJECTED ITS BIAS IN THE MIDDLE OF THE HAMPTON CHARGE THUS POISONING THE JURY TO SUCH A DEGREE AS TO INVALIDATE THE JURY'S ABILITY TO INDEPENDENTLY ASSESS THE CREDIBILITY OF THE DEFENSE THAT THE CONFESSION WAS INVOLUNTARY. THE HAMPTON CHARGE WAS RENDERED A VEHICLE TO ASSERT THE PROSECUTION'S THEORY AND THUS BECAME A DIRECTED VERDICT

(B)

TRIAL COURT DIRECTED A VERDICT OF FIRST DEGREE MURDER BY GENERATING AN IMPERMISSIBLE INFERENCE PROHIBITED BY THE CONSTITUTIONAL REQUIREMENT THAT ELEMENTS OF AN OFFENSE MUST BE ESTABLISHED BEYOND A REASONABLE DOUBT. STATE V. BROWN, 80 N.J. 587, 592 (1979) (OBJECTED BELOW)

(1)

Ultimate factual question as to whether [] Mr. Choe had the mens rea necessary was decided by the prosecutor's expert witness ...


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