On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 03-01-00050.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa, Lihotz and Simonelli.
Defendant, Richard W. Rogers, was found guilty of two counts of first-degree knowing or purposeful murder, N.J.S.A. 2C:11-3a(1), (2), for the 1992 murder of Thomas Mulcahy and the 1993 murder of Anthony Marrero. Defendant was also convicted of two counts of third-degree hindering apprehension, N.J.S.A. 2C:29-3b, each of which was related to one of the murders. The judge sentenced defendant on each murder count to life imprisonment with a thirty-year parole disqualifier, and on the hindering counts to five years imprisonment with a two-and-one-half-year parole disqualifier. All four sentences were ordered to be served consecutively.
After conducting an N.J.R.E. 104 hearing prior to trial, the judge ruled that evidence pertaining to the murders of Peter Anderson in Pennsylvania in 1991 and Michael Sakara in New York in 1993 would be admissible at trial pursuant to N.J.R.E. 404(b) for the limited purposes of demonstrating identity, opportunity, intent and plan. That evidence was admitted at trial.
On appeal, defendant argues that his conviction should be reversed because:
THE ADMISSION OF EVIDENCE OF TWO OTHER MURDERS IN ORDER TO DEMONSTRATE "IDENTITY, OPPORTUNITY, INTENT [AND] PLAN" WAS VIOLATIVE OF N.J.R.E. 404(b) AS WELL AS DEFENDANT'S RIGHTS TO DUE PROCESS AND A FAIR TRIAL.
B) Plan, Opportunity and/or Intent.
THE JURY INSTRUCTION ON OTHER-CRIMES EVIDENCE WAS EITHER INCORRECT OR FATALLY INSUFFICIENT IN THREE DIFFERENT RESPECTS. (Not Raised Below).
THE EVIDENCE THAT DEFENDANT NODDED HIS HEAD WHILE THE INTERROGATING OFFICERS READ HIM THE EVIDENCE AGAINST HIM WAS INADMISSIBLE AS AN "ADOPTIVE ADMISSION"; MOREOVER, NO INSTRUCTION ON ADOPTIVE ADMISSIONS WAS EVER GIVEN TO THE JURY; FINALLY, THE PROSECUTOR'S COMMENT IN SUMMATION THAT NOTED HOW DEFENDANT "CLAMMED UP" WHEN CONFRONTED WITH THE EVIDENCE AGAINST HIM WAS A BLATANT VIOLATION OF DEFENDANT'S RIGHT TO SILENCE. (Partially Raised Below).
THE REQUESTED RECHARGE ON TERRITORIAL JURISDICTION WAS CONTRADICTORY -- TELLING THE JURY THAT THE INFERENCE THAT THE CRIME OCCURRED IN THE STATE WHERE THE BODY WAS FOUND WAS BOTH MERELY PERMISSIBLE AND MANDATORY; MOREOVER, THAT RECHARGE ALSO OMITTED CRITICAL LANGUAGE FROM THE ORIGINAL INSTRUCTION. (Partially Raised Below).
We reject these arguments and affirm.
All four murder victims were gay men, last seen alive in New York City. The dismembered bodies of Mulcahy and Marrero were found in New Jersey soon after each man disappeared. And, soon after Anderson and Sakara each disappeared, Anderson's dismembered body was found in Pennsylvania and Sakara's dismembered body was in New York. As we will describe, the manner in which the bodies of Mulcahy, Marrero and Sakara were dismembered were practically identical. The dismemberment of Anderson's body was significantly different. However, there were many other similarities closely connecting all four victims, their murders, and the means of disposition of their remains.
Defendant was a career nurse, employed for more than twenty years at Mount Sinai Hospital in Manhattan, including the years when these murders occurred. Defendant's duties included assisting in the operating room. Throughout these years, he lived in Staten Island.
Defendant is gay, and he frequented several upscale bars in Manhattan that catered to gay men. Two of these bars, the Townhouse Bar on East 58th Street, and the Five Oaks in Greenwich Village, had a close connection with three of the murders, and a possible connection with the fourth. Defendant was generally attracted to gay men older than himself, which was the case with all four of these victims.
There was little dispute about the factual evidence at trial. In his opening statement, defense counsel said as much to the jury, commenting that "[t]here is little that [the prosecutor] just told you that I challenge or disagree with," and that "[w]hat this case is really about and the only thing it's truly about is whether Richard W. Rogers murdered the two men that he is charged with murdering, and that is what is in dispute in this case." Defendant did not testify at trial and did not present any witnesses. The State's evidence revealed the following regarding each of the four murders, which we will describe, not chronologically, but beginning with the two murders for which defendant was charged (Mulcahy and Marrero), followed by the two "other" murders (Anderson and Sakara). We will follow that discussion by describing general aspects of the investigation.
Thomas Mulcahy was a fifty-five-year-old married father of four from Massachusetts. His marriage was marred by his excessive drinking and his affairs with other men.
Mulcahy frequently traveled in connection with his employment as a businessman. During one trip to Manhattan on July 7, 1992, he booked a room at the Barbizon Hotel. That night, he had dinner at the Townhouse Restaurant, which was two doors down from the Townhouse Bar. The following morning, July 8, Mulcahy and a business associate, William O'Brien, gave a business presentation at the World Trade Center. Following the presentation, the two had a three-hour lunch at Moran's, where they each consumed significant amounts of alcohol. Mulcahy and O'Brien parted company at about 3:00 p.m. O'Brien returned to New Jersey with the impression that Mulcahy planned to stay in the city for another night.
Mulcahy drank another two beers at the Market Place Bar around 4:15 p.m. Douglas Gibson was introduced to Mulcahy at the Townhouse Bar at around 10:30 p.m. by Gibson's friend, Jack Joyce, and Gibson and Mulcahy struck up a conversation. Mulcahy appeared to be interested in another man standing at the piano whom Gibson described as "about 5 foot 10, medium-brown hair, average looking, but someone I had seen before." Gibson excused himself from the conversation and when he returned, Mulcahy and the man matching defendant's description had left. At approximately 11:15 p.m., Mulcahy withdrew $200 from an ATM located within walking distance of the Townhouse.
Mulcahy's wife expected him to return home the following evening, July 9, around dinner time. When he failed to arrive, she contacted the Barbizon Hotel at approximately 11:00 p.m. Hotel personnel checked Mulcahy's room and found that he was not in the room, but his clothes were still there.
The next day, July 10, New Jersey Department of Transportation (NJDOT) employees Wayne Luker and Theodore Doyle were performing their daily task of cleaning the rest areas along Routes 70 and 72. At the Butler Place Rest Area on Route 72, Luker noticed some non-DOT trash bags around the trash cans and one of the bags felt like it had a pumpkin in it. Luker also noticed that a couple of the bags were leaking blood, but he did not find that unusual because fisherman would often discard fish parts into these cans on their way home from the shore. The bags were thrown into the back of the dump truck with the rest of the trash. After returning to the Red Lion maintenance yard, Luker and Doyle began throwing the trash bags they collected into the dumpster. Luker opened the bag that felt like it had a pumpkin inside. It contained Mulcahy's severed head. Luker immediately contacted the New Jersey State Police.
In the meantime, Garden State Parkway employees Leon Valentino and Anthony Bagarozy were emptying trash cans at the Stafford Forge Rest Area along the Garden State Parkway. Valentino was unable to remove the liner bag from one fifty-five-gallon trash container, so he began to remove the black trash bags individually. One of the bags ripped, exposing one of Mulcahy's legs. Bagarozy contacted the New Jersey State Police.
Sergeant John Halliday of the New Jersey State Police inventoried the various items found at each location. At the Red Lion site, Halliday inventoried the following: (1) three triple-bagged white plastic trash bags with plastic handles containing Mulcahy's head; (2) two double-bagged white plastic trash bags with double-knotted yellow ties containing his left and right arms; (3) two double-bagged and double-knotted brown plastic trash bags containing Mulcahy's upper torso and a New York Daily News dated July 3, 1992; (4) two double-bagged and double-knotted brown plastic trash bags containing his lower torso and a New York Post dated July 3, 1992; (5) one large brown plastic trash bag containing two right-handed size seven surgical gloves, one shower curtain, one king-sized Liz Claiborne fitted sheet, one torn left-handed latex glove, two rolled up white plastic bags, a plastic cup, and a white plastic bag containing Mulcahy's intestines and stomach contents; (6) one white plastic bag containing one pair of nine-and-one-half Bostonian shoes, the New Jersey section of the New York Times dated July 5, 1992, one master compass saw with a blade, one master compass saw package with an extra blade and a Pergament's price sticker, two latex gloves, an Abraham & Strauss paper bag with handles, Mulcahy's leather briefcase containing his wallet, credit cards and identification, and an empty plastic "Thank you for shopping here" bag; and (7) a box of "Cinch Sak" trash bags containing two latex gloves, one empty CVS latex glove package with a price sticker on it, and a sewing needle.
At the Stafford Forge site, Halliday inventoried the following items: (1) one large clear plastic bag containing four large brown plastic bags, two of which were double-bagged and double-knotted inside of which were the other two bags, each containing one of Mulcahy's legs, and (2) a wristwatch, a box of "Cinch Sak" trash bags, latex gloves, cloth gloves, a disposable razor, and a New York Post dated July 7, 1992.
Authorities were able to track the origin of some of the recovered items. The price sticker on the latex glove package recovered from the Red Lion site was traced to the only CVS store in Staten Island at that time. Store personnel confirmed that the gloves had been sold there between April and early July 1992. The same CVS also sold Hefty trash bags in the same aisle as the latex gloves. The CVS was located near a Pergament's store on Staten Island. The sheet and shower curtain that were recovered were retail items sold to the general public. They did not come from any Manhattan hotel.
Attempts to recover fingerprints at that time were unsuccessful. However, as we will later discuss, in 2000, using newly developed techniques, law enforcement personnel recovered a total of seventeen fingerprints from the "Thank you for shopping here" bag and the white plastic bag containing Mulcahy's personal effects. Sixteen of those prints were identified as defendant's. The remaining print could not be identified.
On July 11, 1992, Mulcahy's remains were examined by Dr. Lyla Perez of the New Jersey State Medical Examiner's Office in Newark. She noted that Mulcahy's head had been severed at the fourth cervical vertebra and had been cut from front to back. His right and left arms had been disarticulated, meaning separated at the joint rather than sawed off at the bone. The two halves of his torso had been cut apart just above the belly button. The dismemberment occurred post mortem.
Perez concluded that the cause of death was "stab wounds of [the] chest [and] abdomen, penetrating heart, lung, mesentery and stomach, with internal hemorrhage." She ruled Mulcahy's death a homicide and approximated his time of death at between thirty-six and forty-eight hours prior to her autopsy, which would have been July 9, 1992. She noted that Mulcahy was intoxicated at the time of his death. Ligature marks on his wrists suggested that he was bound at some point prior to his death. There were no signs of sexual assault or activity.
Anthony Marrero was a male prostitute who worked out of Manhattan, usually near the Port Authority Bus Terminal. At noon on May 5, 1993, Marrero went to Greenwich Village to meet an unidentified john. He was intoxicated on marijuana and alcohol at the time. Marrero was last seen on May 6, 1993 near the Port Authority.
On May 10, 1993, at 7:30 a.m., Donald Giberson was driving along a dirt road in Manchester Township when he saw a human arm with a piece of clothesline attached to it. Giberson called the Manchester police and directed them to the scene. Law enforcement officials discovered six heavy-duty, dark green, plastic trash bags containing a dismembered white male later identified as Marrero.
Marrero's two arms were found in the roadway in separate white trash bags with red drawstrings, which were inside a dark green trash bag that appeared to have been opened by animals. His head was found in a small plastic shopping bag with the words "Thank you" printed on it, which was inside two double-bagged white trash bags inside a dark green trash bag. Marrero's upper torso was found in a white trash bag, which was inside three triple-bagged dark green trash bags. His lower torso was found in three triple-bagged dark green trash bags.
His left leg was found in two double-bagged dark green trash bags, and his right leg was found in three triple-bagged dark green trash bags. Other items recovered at the scene were unused plastic bags, one of which said "We just can't say enough."
Authorities were able to trace the bag containing Marrero's head to eleven Acme stores, including one in Staten Island. The bag was a limited run bag and it contained the words "President's Choice" and "Made with pride by Bob H. and Jerry H." The Staten Island Acme received a shipment of these limited run bags on or about May 7, 1993.
Two fingerprints were recovered from the "We just can't say enough" plastic bag and one palm print recovered from another plastic bag. The police ran these through the Automated Fingerprint Identification System (AFIS), but no matches were found. Other efforts at that time to trace the prints were also unsuccessful. However, these prints were later identified as defendant's.
On May 12, 1993, Marrero's remains were examined by Dr. Geetha Natarajan of the New Jersey State Medical Examiner's Office in Newark. She noted that both the left and right legs were dismembered at the mid-humerus area and that there were ligature marks on both ankles, which appeared to be post-mortem.
The right and left arms were dismembered at the midpoint of the humerus. Dismembering differs from disarticulating, because it involves cutting through the humerus and femur, rather than separating those bones intact from the shoulder and hip joints. The torso was cut five inches above the belly button, but there was no evisceration, or removal of internal organs. The head had been severed between the third and fourth cervical vertebrae. The dismemberment occurred post mortem. The clean cuts through the skin were made with a sharp knife. Natarajan opined that the cuts through the bones could have made by a saw like the master compass saw retrieved from the Mulcahy crime scene.
Natarajan concluded that the cause of death was "multiple stab wounds" to the back and at least one to the front. She ruled Marrero's death a homicide and approximated his time of death at between three and five days before discovery of his remains on May 10. She noted that his toxicology screen came back positive for marijuana. There were no signs of sexual assault or activity.
Peter Anderson was a father of two from Philadelphia. He and his wife separated in 1990 because of his sexuality.
On May 3, 1991, at around 3:00 p.m., Anderson traveled from Philadelphia to Manhattan to attend a political fundraiser. After the fundraiser, at around 9:00 p.m., Anderson went with a man named Tony Hoyt to the Townhouse where they had a few drinks. At around 10:30 p.m., Hoyt put Anderson in a cab bound for the nearby Waldorf Astoria Hotel. Anderson arrived at the Waldorf Astoria around 10:45 p.m. He was visibly intoxicated. At first, Anderson wanted to get a room at the hotel, but then changed his mind and decided he wanted to go to Penn Station instead. He was escorted out to Lexington Avenue to wait for a cab, but no one ever saw him get into a cab.
The State and the defense entered into the following stipulation of facts regarding the Anderson murder, which was read to the jury:
In May, 1991, John Sirriannia was employed by the Pennsylvania Turnpike Commission as a maintenance worker. His duties included emptying trash barrels along the Pennsylvania Turnpike.
During the afternoon of Sunday, May 5th, 1991, at approximately 2:50 p.m., in the course of his job duties, John Sirrianni stopped at a rest area at milepost 265.2 in Rapho Township, Lancaster County, Pennsylvania, on the westbound side of the Pennsylvania Turnpike, to empty the trash barrels.
In one of the trash barrels were green plastic trash bags which appeared to be somewhat heavy. John Sirrianni opened the trash bags to determine their contents. John Sirrianni observed the nude body of a deceased white male.
John Sirrianni immediately reported what he observed to his supervisors by radio. His supervisors, in turn, notified the Pennsylvania State Police. According to John Sirrianni, the last time the trash barrel had been emptied prior to his finding the body was on Friday, May 3rd, 1991.
In May, 1991, Ronald Horner resided in York, Pennsylvania. Ronald Horner was employed as a truck driver having a regular delivery route in eastern Pennsylvania and western New Jersey. As a result of CB radio transmissions during the week of May 5th, 1991, Ronald Horner was aware that the body of a dead white male had been found in the trash barrel on the Pennsylvania Turnpike on May 5th, 1991.
On Friday, May 10th, 1991, Ronald Horner was returning home from his delivery route on the Pennsylvania Turnpike. At approximately 8:15 a.m., Ronald Horner stopped at a rest area at milepost 303.1 on the westbound lanes of the Pennsylvania Turnpike in Nantmeal Township, Chester County.
Ronald Horner went to a trash barrel to discard items from his truck. In the trash barrel, Ronald Horner observed several items of men's clothing he believed could be related to the body found earlier in the week. Ronald Horner reported that he found -- what he found to a turnpike toll collector who then reported the matter to the Pennsylvania State Police.
The body found was Anderson's. The body was inside eight layers of brown trash bags. The body was clean but showed what the police described as "gaping wounds to his chest." The medical examiner later described the location of these wounds as the abdomen. There was an additional stab wound to the back. Anderson's penis was cut off and placed in his mouth. There were no personal effects or means of identification ...