On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 91-09-1510.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, A. A. Rodríguez and C.S. Fisher.
Defendant Richard J. Chippero appeals from his second conviction stemming from the homicide of Ermina Rose Tocci, who was found dead on July 23, 1991, in her North Brunswick mobile home at 51 Poe Road, by her longtime live-in boyfriend John Simmons. Tocci had been stabbed in the neck and raped. At the time of the homicide, defendant was a neighbor at 49 Poe Road in the Deer Brook Village mobile home park.
The police initially considered Simmons and the victim's brother as suspects. However, two days after the murder, the police were still investigating the homicide. That day, Kevin McMenemy, a former neighbor of Tocci, contacted the North Brunswick police and told them that on the day of the murder, he picked up his stepdaughter at her mobile home, located near Tocci's. At 2:39 p.m., while waiting for her, he saw a man running from the front of the victim's mobile home into the immediately-adjacent mobile home. This was defendant's residence. The man was perspiring, but there was no blood on the man or his clothing.
Based on the information from McMenemy, police investigators sought a search warrant for defendant's mobile home. A Superior Court judge (the warrant judge) issued the warrant. A group of detectives went to execute the search warrant. Defendant's grandmother let the detectives into the mobile home. When the detectives inquired about defendant's whereabouts, defendant's brother told them that defendant was fishing. While some detectives searched defendant's residence, others went to find defendant, including Investigator Charles V. Clark of the Middlesex County Prosecutor's Office and Lieutenant Frank Mozgai of the North Brunswick Police Department.
The detectives found defendant at nearby Farrington Lake. One detective approached defendant and identified himself as a police officer. Defendant acknowledged that he was Richard Chippero. Defendant waived his Miranda*fn1 rights and signed a rights waiver form. After a nine-hour custodial interrogation, defendant confessed to the crime.
Other investigators searched the mobile home and seized several items, including a pair of Chinese-made T-956 sneakers. One of the sneakers had a sole tread pattern that could match a bloody footprint impression left on the victim's back.
In 1995, defendant was convicted of capital murder, N.J.S.A. 2C:11-3a; second-degree possession of a weapon (knife) for an unlawful purpose, N.J.S.A. 2C:39-4d; first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a; and third-degree hindering apprehension or prosecution, N.J.S.A. 2C:29-3b(1). The jury chose not to sentence defendant to death. The judge imposed concurrent terms aggregating two life terms with a fifty-five year parole disqualifier. At that trial, the State's evidence consisted of defendant's audio-recorded confession to the police; the testimony of McMenemy that he saw defendant walk quickly from near the victim's trailer into his own; testimony of neighbors that defendant made statements the night of the murder revealing that defendant had detailed knowledge of the crime before it became public; and the sneakers taken from under defendant's bunk-bed that could have left an imprint found on the victim's back.
Forensic expert Peter DeForest, a criminologist, opined only that the impression found on the victim's back "was made by a shoe with the same outsole pattern" as the sneaker seized from defendant's bedroom. DeForest also repeatedly admitted that his opinion was limited because: (1) there was no scale in place to measure the impression since the impression was not noticed at the time police processed the crime scene; (2) he did not have a high-quality imprint that revealed the individual features of the shoe and there was too much blood at the time of the impression; and (3) he was unable to find other T-956 sneakers for comparison. On cross-examination, DeForest again admitted the limitations of his opinion and stated that "[w]e're not saying that that particular shoe made that mark." Investigator John Haley also testified that they could not produce the photograph to scale because no measurements of the scene were taken at the time and because of the angle of the body.
Defendant, through the testimony of his mother, denied that the T-956 sneakers found in his bedroom even belonged to him.
We affirmed on direct appeal in an unpublished opinion. State v. Chippero, No. A-4948-95T4 (App. Div. 1999). However, the Supreme Court reversed the conviction and remanded for a new trial. State v. Chippero, 164 N.J. 342 (2000). The Court suppressed defendant's confession and remanded for a new trial "because [defendant] was arrested without probable cause, as the State acknowledged[,]" and "because there is an unbroken causal connection between defendant's arrest and his confession[.]"
At the second trial, the confession was excluded. In all other respects, the State's proofs were substantially similar to the first trial, including evidence admitted over defendant's objection, that one of defendant's sneakers had a sole pattern that could have caused the imprint on victim's back.
Defendant was convicted of purposeful or knowing murder, N.J.S.A. 2C:11-3a(1) and second-degree possession of a weapon (knife) for an unlawful purpose, N.J.S.A. 2C:39-4d. The judge merged the convictions and imposed a life-term sentence with a thirty-year parole disqualifier.
Defendant appealed from the second conviction. One of his contentions was that, "the trial court erred by ruling that the search warrant was valid, compelling reversal of defendant's conviction." We thought this contention should be addressed first and ordered a telephone argument and supplemental briefing.
The State argued that the concession of lack of probable cause to arrest was made only to focus the argument on the attenuation issue. The State argued that the concession and Supreme Court opinion had to be understood in that context and did not affect the validity of the search. We remanded to permit the development of a record on that issue.
We temporarily remanded to the Law Division for consideration of "whether the Supreme Court ruling [of lack of probable cause to arrest] affected the determination of probable cause to support a search warrant which issued before the arrest." State v. Chippero, No. A-6401-02T4 (App. Div. Aug. 9, 2006). Specifically, we asked the Law Division to develop the contention that the State acknowledged an illegal arrest for purpose of the argument before the Supreme Court only. We ...