July 22, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RICHARD W. ROGERS, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 16, 2008
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.
C) Harmless Error.
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.
A. The Mulcahy Murder
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.
B. The Marrero Murder
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.
C. The Anderson Murder
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 found with the body, but they were found five days later at the second location described in the stipulation.
Twenty-eight fingerprints and three palm prints were found on the bags containing Anderson's body. No matches were found at that time, but eighteen of the fingerprints and one palm print were later identified as defendant's.
On May 6, 1991, Anderson's remains were examined by Dr. Isidore Mihalakis at the Lancaster County Morgue. She noted that the penis was amputated post mortem and "stuffed inside the mouth and pushed far into the throat." The right side of the neck was scratched, the nose was scraped, and the right forearm, left forearm, and right shin were bruised. The scalp was also bruised indicating blunt force trauma to the head. There was also some indication that Anderson engaged in anal intercourse shortly before his death. She reported that Anderson was five feet four inches tall and weighed 102 pounds.
Mihalakis concluded that the cause of death was "stab wounds to the abdomen." She ruled Anderson's death a homicide and approximated his time of death at between two and three days prior to May 6, 1991. The toxicology results indicated that Anderson was under the influence of alcohol at the time of his death.
D. The Sakara Murder
Michael Sakara, a Manhattan resident, was a gay man in his fifties and regular patron of the Five Oaks Piano Bar in Greenwich Village. On the evening of July 29, 1993, Sakara arrived at the bar after work at around 9:30 p.m., as was his routine. At around 3:30 a.m., on July 30, 1993, a man later identified as defendant sat down at the bar next to Sakara and ordered a scotch and water. Sakara introduced the man to the bartender and mentioned that he was a nurse at Saint Vincent's Hospital. Defendant and Sakara left together at around 4:30 a.m., as the manager was closing up. At the N.J.R.E. 104 hearing (but not at trial), a New York detective who investigated the Sakara murder testified that two panhandlers, who were acquainted with Sakara, saw him leave the Five Oaks with a man whose description was consistent with defendant. They said Sakara conversed with them briefly and said he was "going up state." Sakara got into the passenger seat of a car and the other man got into the driver's seat and drove them away. See N.J.R.E. 104(a) (permitting hearsay evidence at the hearing).
The State and the defense entered into the following stipulation of facts regarding the Sakara murder, which was read to the jury:
In July, 1993, Ronald Colandrea owned and operated a lunch truck on a Hudson River overlook on Route 9W in Haverstraw, Rockland County, New York. Four 55-gallon trash drums were located on the overlook where Ronald Colandrea parked his truck for business. The trash barrels were emptied on Friday, July 30th, 1993.
On the morning of Saturday, July 31st, 1993, between 10:30 and 11:00 a.m., when he returned to the overlook to open for business, Ronald Colandrea noticed that the 55-gallon trash barrel closest to where he parked his truck appeared to be approximately half full. The trash barrel had been approximately one-third full when Ronald Colandrea closed his business for the day in the late afternoon of Friday, July 30th, 1993.
Ronald Colandrea inspected the contents of the trash barrel. The top item in the trash barrel was a green plastic trash bag tied in a knot. Ronald Colandrea partially opened the trash bag and saw a white plastic bag containing what he believed to be a human body part. Ronald Colandrea asked a customer to drive to the Haverstraw, New York, Police Department to report what he found. The matter was reported to the police at 11:1 [sic] a.m.
In August, 1993, James Beninson was a member of the Stony Point, New York, Volunteer Fire Company and was aware that a human head and arms were recovered from an outlook on Route 9W in Haverstraw, New York, on July 31st, 1993.
On Sunday, August 8th, 1993, at --after 5:00 p.m., James Beninson was riding a motorcycle on Route 9W in Stony Brook, New York. James Beninson stopped at a pull-off area on 9W. Over a cable guardrail, James Beninson noticed four green plastic trash bags. When James Beninson lifted one of the bags, he noticed a foul odor and observed what appeared to be the outline of a human lower leg.
James Beninson reported these observations to the police at approximately 8:00 p.m.
The body parts found were Sakara's. His head and arms were found at the Haverstraw site. His legs and his upper and lower torso were later found in triple-knotted reinforced green bags at the Stony Brook site. Like Mulcahy's and Marrero's remains, the seven dismembered parts were found in seven different trash bags. Sakara was approximately six feet four inches tall and weighed 235 pounds.
Sakara's remains were examined by Dr. Frederick T. Zugibe of the Rockland County Medical Examiner's Office. The skull had multiple "comminuted" fractures. There were also blunt force lacerations to the forehead and back of the head and the brain was swollen and bruised. There were three puncture marks in the severed lower torso and two stab wounds to the severed upper torso.
The head was severed at the third cervical vertebra and the arms were severed just below the shoulder joint. There was a New York Times wrapped around the cut ends of the severed legs. Sakara's limbs were dismembered, not disarticulated. Zugibe opined that the skin was cut with some sort of knife, but that the bone was definitely cut with a fine-tooth saw. No ligature marks were found on Sakara's body parts.
Zugibe concluded that that the cause of death was "severe head injuries." He ruled Sakara's death a homicide and approximated his time of death at between nine and ten days before the legs and torso were found. The toxicology results indicated that Sakara was under the influence of alcohol at the time of his death.
No fingerprints recovered from the Sakara crime scene matched defendant's.
E. The Investigation
Struck by the similarities between these four murders, several law enforcement agencies, including the Ocean County Prosecutor's Office, the New Jersey State Police, the Rockland County District Attorney's Office, the New York City Police, and the Pennsylvania State Police, formed a joint task force to conduct an investigation. However, interviews in the New York gay community were hampered by witnesses' unwillingness to be openly associated with the gay bars in the area. Fingerprints recovered from the crime scenes could not be identified as there were no suspects and no "hits" on AFIS. The cases went "cold" by the end of 1993.
In 1999, Mulcahy's wife contacted the New Jersey State Police and asked for an update on the progress of the investigation into her husband's murder. Around that time, law enforcement officers had also learned of recent advances in fingerprinting technology. They also hoped that witnesses might talk more openly. As a result, the joint task force reformed in 2000.
The Mulcahy murder evidence was transported to the Toronto Police Service for re-fingerprinting in July 2000. Using the new sophisticated techniques then available to it, the Toronto Police Service obtained seventeen fingerprints. When these were compared to the prints obtained during the original Marrero investigation, it was determined that sixteen of the prints came from the same unidentified person.
The prints were then sent out to all of the states to be checked against their individual databases. On May 14, 2001, Maine fingerprint analyst Kim Stevens contacted the Rockland County District Attorney's Office to report that the prints recovered from the Mulcahy and Marrero crime scenes appeared to match those of defendant.
Detective Jeffrey Scozzafava of the New Jersey State Police confirmed that sixteen of the Mulcahy fingerprints matched defendant's. Detective Eugene Thatcher of the Ocean County Sheriff's Office confirmed that two of the Marrero fingerprints and one palm print matched defendant's. And, Sergeant George Kegerreis of the Pennsylvania State Police determined that eighteen of the Anderson fingerprints and one palm print also matched defendant's. However, no matching prints were recovered from the Sakara crime scene.
On May 27, 2001, members of the New York City Police Department approached defendant at Mount Sinai Hospital and asked him to accompany them to police headquarters, giving him the impression that he was the victim of credit card fraud. Just after midnight on May 28, 2001, Lieutenant Thomas Hayes of the Ocean County Prosecutor's Office and Detective David Dalrymple of the New Jersey State Police interviewed defendant. Dalrymple first advised defendant of his Miranda*fn1 rights, which he waived both verbally and in writing.
The investigators informed defendant that they were investigating the murders of four gay or bisexual men that occurred between 1991 and 1993. Defendant was shown a flyer containing the photographs of Mulcahy, Marrero, and Sakara, and was asked whether he recognized any of them. Defendant immediately pointed to Sakara and stated that they had both been patrons of the Five Oaks.
The investigators then asked defendant some background information. Defendant reported that he traveled frequently across the country in his vehicle, naming such places as California, Florida, Massachusetts, West Virginia, Atlantic City, and Arkansas. Hayes described defendant as "very polite at the time, very cooperative."
After changing the subject back to the homicides, defendant stated, "Other than, you know, recognizing Mr. Sakara, I don't know if I can help you with anything else." Hayes then said to defendant, "Richard, we're not here looking for your help tonight. You're here because we have indisputable evidence, both physical and circumstantial, that links you to these four homicides." Hayes described defendant's reaction: "At that time his body language changed. He went from sitting with both feet on the floor and his hands on his lap to he crossed his legs -- he became very guarded -- and crossed his arms, and he sat back in his chair."
The investigators proceeded to go through each homicide in the order they occurred, telling defendant what physical evidence they had that linked him to the crimes. After Hayes told defendant that fingerprints found at the Anderson crime scene were positively identified as belonging to him, defendant "nodded his head up and down," began "swallowing, taking large gulps of air," and "became flagellant [sic]" and "started to pass gas and said he was very nervous, and he kept excusing himself." Defendant also "nodd[ed] his head up and down" after the investigators told him that fingerprints found at the Mulcahy and Marrero crime scenes were positively identified as belonging to him, that some of the other items found at those crime scenes were traced back to Staten Island, and that he was the last person seen with Sakara before he turned up dead.
After hearing all the evidence against him, defendant asked Hayes, "Do you think I need a lawyer? Should I consult with an attorney?" Hayes responded, "You've been advised of your rights. You can invoke your right to counsel at any time you want." The investigators went over the physical evidence again, after which defendant invoked his right to counsel. The interview was immediately terminated.
Defendant's employment records showed that he regularly worked the 8:30 p.m. to 8:00 a.m. shift at Mount Sinai Hospital during the years the murders took place. The records revealed that defendant was off duty when each murder occurred. More specifically, he was off from May 3, 1991 to 8:45 p.m. on May 5, 1991 (Anderson), from July 8, 1992 to the evening of July 10, 1992 (Mulcahy), from May 5, 1993 to the evening of May 7, 1993 (Marrero), and from July 29, 1993 to the evening of August 1, 1993 (Sakara).
Police searched defendant's former Staten Island apartment, where he lived from 1985 to 2000, but found nothing of evidential value. Police also searched the Staten Island condominium in which defendant lived at the time of his arrest in 2001. There they found Atlantic City casino comp cards from 2000, a New Jersey road map purchased at Pergament's, a Pergament's shopping bag, a tan "Thank you for shopping here" bag, a bookmarked Bible, and eight videos in his bedroom. The videos included "Hush, Hush, Sweet Charlotte," which contained scenes including the chopping off of a hand with a meat cleaver and other acts of body dismemberment, including decapitation. We have not been furnished with copies of the bookmarked Bible pages deemed significant, but we know from the trial transcripts that these passages were included:
And his nurse took him up and fled. And as she made haste to flee, he fell and became lame.
When they came into the house he was sleeping upon his bed in the parlor and they struck him and killed him; and taking away his head, they went off by way of the wilderness walking all night.
And David commanded his servants and they slew them; and cutting off their hands and feet, hanged them over the pool in Hebron; but the head of Isboseth they took and buried in the sepulcher of Abner in Hebron.
The investigation also revealed that, although Marrero typically conducted his prostitution activities around the Port Authority bus terminal, he sometimes went to gay bars, including bars in mid-town Manhattan, looking for business.
Although defendant sometimes represented, including to Sakara and the bartender at the Five Oaks, that he was a nurse at St. Vincent's Hospital, he never worked there, but worked at all relevant times, and for more than twenty years, at Mount Sinai Hospital.
After these killings occurred and investigators began questioning people associated with these bars, the evidence revealed that defendant stopped frequenting the Townhouse, and another Manhattan gay bar where he was a regular, Regents East, as well as the Five Oaks, for several years. When he resumed frequenting these establishments and was asked where he had been, he misrepresented the reasons for his absence. He told Douglas Gibson he had moved to Florida for a time, and he told Richard Unterberg, the piano player at the Townhouse, that his work schedule had changed.
The investigation did not reveal the location or locations where any of the murders actually occurred. In all four cases, the bodies (or dismembered body parts) had been cleaned and were found naked, bagged and disposed of in the manner we have described.
On September 21, 22, and 28, 2005, the judge conducted an N.J.R.E. 104 hearing on the State's motion to admit evidence regarding the murders of Anderson and Sakara as proof of identity, intent, opportunity, and plan pursuant to N.J.R.E. 404(b). Testimony was presented from law enforcement officials, medical examiners, and witnesses regarding all four murders.*fn2
On September 29, 2005, the judge granted the State's motion. As to the Anderson murder, he found that the crime was sufficiently similar to the other crimes, noting:
[C]ertainly there's a clear connection between Mr. Anderson and [defendant] through fingerprint identification. The disposal of Mr. Anderson is extremely similar, unique . . . to the victims in this case in New Jersey. The bagging and the double knotting and the double bagging of victim. The disposal of the victim on the side of a public roadway in a 55 gallon trash dumpster . . . . And not too distant therefrom, the personal identification and clothing pieces in a similar receptacle down the road. I believe, my recollection, and again forgive me without looking at my notes, is within five to 10 miles of the situs of Mr. Anderson's remains.
The judge took account of the one major dissimilarity, that, unlike the other three, Anderson's body was not fully dismembered, but his penis was severed. The judge found that difference could be explained by Anderson's relatively small size as compared to the other victims, making it feasible to dispose of Anderson's body in a single (eight-layered) bag. Defendant's fingerprints provided clear and convincing proof that defendant murdered Anderson, and therefore evidence regarding the Anderson murder could be admitted to show identity, opportunity, intent and plan.
As to the Sakara murder, the judge found even greater similarities:
[Sakara] was nude, as Mr. Anderson and Mr. Marrero and Mr. Mulcahy were. He was dismembered in the same fashion or very similar fashion to Mr. Mulcahy and Mr. Marrero. And in some regards, almost identically dismembered with regard to Mr. Marrero. I believe that the evidence shows that the dismemberment between Mr. Marrero and Mr. Sakara are almost identical. Within inches, I think, of one another. If you were to have the forensic pathologist that performed each autopsy and made their findings and you compared their findings side by side, the cut marks and the saw marks and the measurements of these marks would be so similar that it would -- it is bizarre. It is unique. It is chilling. . . . The similarities of these victims found so far apart in terms of geography and somewhat apart in terms of time are so similar that it is, to say the least, unique and bizarre.
The bagging of the body parts is so similar and unique that it is bizarre. They are so alike. The types of bags used, the knotting of the bags, the double bagging are so alike that it is bizarre.
Again, Mr. Sakara's identification was found in close proximity. All of his personal effects for ease of identification were found. Bagged in a similar way to Mr. Mulcahy's or disposed of in a similar way to Mr. Mulcahy's and Mr. Anderson's.
And then when we talk about Mulcahy and Sakara and the bagging and the gloves and the evidence and the connection with Staten Island and all of these things, and Marrero and the connection with that evidence to Staten Island, which coincidentally is where [defendant] lived, again, the bagging, the knotting, all of these things are so similar and so unique that it is bizarre and chilling. And I think that they are tantamount to signatures.
He found that the dissimilarities between the cases, such as the fact that Marrero's body was not found at a public rest stop and that Mulcahy was disarticulated, as opposed to dismembered by cutting though the bones, were significantly outweighed by the similarities. And, even though defendant's fingerprints were not found at the Sakara crime scene, the bartender at the Five Oaks did not hesitate to identify defendant as the person with whom Sakara was last seen alive. The judge was "clearly convinced that Mr. Sakara's demise and the circumstances surrounding it [were] admissible" to show identity, intent, opportunity, and plan.*fn3
On September 28, 2005, the judge also heard testimony regarding defendant's motion to suppress his custodial statement and attendant behavior. On September 29, 2005, he denied defendant's motion, finding defendant's non-verbal conduct admissible under the adoptive admission exception to the hearsay rule, N.J.R.E. 803(b)(2). He found that the State had met its burden of showing that defendant unequivocally understood the statements and unambiguously assented to them. Notwithstanding that ruling, the judge agreed with defense counsel's assessment of the ruling after it was announced: "I assume that you have ruled that there is an evidentiary predicate for presenting it to the jury. And that it will be up to the jury to decide what the significance of the conduct is." The judge responded affirmatively, and made it clear that the police witnesses who observed defendant's conduct would not be permitted to testify as to their belief that defendant assented to the statements.
It was agreed by the court and both counsel that special measures should be taken to assure the selection of a fair jury because of the other-crimes evidence that the judge determined would be admissible at trial. Thus, it was agreed that a struck jury system would be utilized, prequalifying a panel of prospective jurors who could view the other-crimes evidence fairly and with an open mind, and otherwise be qualified to serve. The judge directed counsel to collaborate in an effort to draft a juror questionnaire for this purpose, incorporating reference to the other-crimes evidence. The attorneys succeeded in this effort and submitted to the court a joint recommendation for the process by which jury selection would be conducted. The recommendation included a written questionnaire to be filled out by prospective jurors and for a series of passages the judge should read to the array in open court. Both included a detailed explanation of the other-crimes evidence, including the purposes for which it could not be considered and the limited purposes for which it could be considered, if the jury were satisfied it was established.
The judge accepted the recommendation and followed the procedure jointly recommended by both counsel. Thus, each perspective juror was given the detailed limiting instruction verbally by the court at the outset. Then, each juror was required to complete the written questionnaire. Only those who answered in the negative the question following the same detailed limiting instruction -- "Will you have difficulty following the Court's instructions on this issue?" -- were allowed to proceed further in the jury selection process. Then, without objection, the same charge, with further enhancements, was included in the final charge to the jury at the end of the case.
Because the location where the murders of Malcahy and Marrero occurred would not be directly established by the evidence, territorial jurisdiction was an issue. See N.J.S.A. 2C:1-3. The issue was submitted to the jury, which, by special interrogatories, found territorial jurisdiction established with respect to the murders of both Mulcahy and Marrero.
Defendant argues that the trial court erred in allowing the admission of evidence regarding the Anderson and Sakara murders in order to prove identity, intent, opportunity and plan. Specifically, defendant argues that evidence regarding the Anderson and Sakara murders should not have been admitted to show identity or "signature" because (1) there was no clear and convincing evidence that proved he committed the Sakara murder and (2) there was no "signature" element present in the Anderson murder. Defendant further argues that evidence regarding the Anderson and Sakara murders should not have been admitted to show intent, opportunity, and plan because those were not disputed issues in this case.
N.J.R.E. 404(b) provides:
Except as otherwise provided by Rule 608(b) evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.
Admission of other-crimes evidence is guided by a four-prong test:
1. The evidence of the other crime must be admissible as relevant to a material issue;
2. It must be similar in kind and reasonably close in time to the offense charged;
3. The evidence of the other crime must be clear and convincing; and
4. The probative value of the evidence must not be outweighed by its apparent prejudice.
[State v. Cofield, 127 N.J. 328, 338 (1992) (citation omitted).]
Appellate review of a trial court's determination as to the admissibility of other-crimes evidence is limited to an abuse of discretion standard. State v. Lykes, 192 N.J. 519, 534 (2007). The trial court is entitled to great deference because it is in the best position to engage in the balancing process required under Cofield. State v. Marrero, 148 N.J. 469, 483 (1997). The trial court's conclusion with respect to the balancing test should not be disturbed unless there is a clear error of judgment. Ibid.
Under the first prong, other-crimes evidence must be relevant to a material issue that is genuinely disputed. State v. Fortin, 162 N.J. 517, 529 (2000) (Fortin I); State v. Covell, 157 N.J. 554, 564-65 (1999). In addition, the other-crimes evidence must be "necessary" for proof of the disputed element. Marrero, supra, 148 N.J. at 482 (quoting State v. Stevens, 115 N.J. 289, 301 (1989)). In other words, the court should consider whether the disputed element can be proved adequately by other evidence. Ibid.
Under the second prong, other-crimes evidence must be similar in kind and reasonably close in time to the offense charged. Cofield, supra, 127 N.J. at 338. However, this prong is only applicable when the other-crimes evidence is sought to be admitted to prove identity. See State v. Williams, 190 N.J. 114, 131 (2007). In order for other-crimes evidence to be admitted to prove identity:
"the prior criminal activity with which defendant is identified must be so nearly identical in method as to earmark the crime as defendant's handiwork. The conduct in question must be unusual and distinctive so as to be like a signature, and there must be proof of sufficient facts in both crimes to establish an unusual pattern." [Fortin I, supra, 162 N.J. at 532 (quoting State v. Reldan, 185 N.J. Super. 494, 502-03 (App. Div.), certif. denied, 91 N.J. 543 (1982)).]
In other words, "the other crimes must bear peculiar, unique, or bizarre similarities" Id. at 530.
We apply these principles first to the issue of identity. The only physical evidence linking defendant to the Mulcahy and Marrero murder scenes was his fingerprints. The defendant contested the accuracy of the fingerprint identification, and also argued that, even if the jury believed some of the fingerprints found were defendant's, that might prove that defendant touched some of the bags at some time but did not prove that he murdered Mulcahy or Marrero. Thus, the State's case was primarily circumstantial. Identity was not only an issue genuinely in dispute, but, as defendant's attorney told the jury in his opening, it was what the trial was all about. And, because of the limitation on the State's direct evidence and the long passage of time, we can find no abuse of discretion in the judge's determination that the other-crimes evidence was necessary on the identity issue.
Defendant asserts error on this issue for different reasons regarding Anderson and Sakara. Defendant does not dispute that the Sakara murder bore the signature of the Mulcahy and Marrero murders. However, none of defendant's fingerprints were found in connection with the Sakara murder. Defendant argues that merely because Sakara was last seen alive in defendant's presence was insufficient to clearly and convincingly prove that defendant murdered him. Thus, defendant argues the third Cofield prong was not satisfied as to Sakara. With respect to Anderson, on the other hand, although defendant's fingerprints tie him to that murder, Anderson's body was not dismembered like the other three. Thus, defendant argues, the requisite signature is absent, and evidence of this crime should not have been admitted because the second Cofield prong was not met. We reject these arguments.
The admissibility determination was made after hearing extensive testimony in the N.J.R.E. 104 hearing. We will not disturb the findings of a trial judge, who is in the best position to assess the testimony and evaluate the credibility of the witnesses, if those findings are supported by substantial credible evidence in the record as a whole. State v. Locurto, 157 N.J. 463, 471 (1999); State v. Johnson, 42 N.J. 146, 162 (1964).
Sakara left the Five Oaks at 4:30 a.m. on July 30, 1993, after the two men drank and talked together for a time at the bar. The medical examiner placed the time of death at about that time. Sakara was still intoxicated at the time of his death. Those circumstances alone provided sufficient evidence to support the judge's finding by clear and convincing evidence that defendant killed Sakara. Other evidence produced at the N.J.R.E. 104 hearing, which included the striking similarities to the other crimes, for which there was also clear and convincing evidence of defendant's culpability, provided further support for the judge's finding. We are satisfied that the judge's finding in this regard was well supported by the evidence.
With respect to Anderson, defendant seeks to limit the signature solely to the dismemberment of the bodies into seven parts, which were bagged separately for disposal. The trial judge viewed the signature more broadly. We agree with the trial judge's analysis. The victims were all gay men, older than defendant. Three of them, Mulcahy, Anderson and Sakara, frequented gay bars that defendant also frequented. The fourth, Marrero, although a prostitute who usually worked at the Port Authority, was known to ply his trade on occasion at upscale gay bars. All four victims were intoxicated and thus vulnerable. All four were stabbed in the torso, which was the cause of death for three of them, Mulcahy, Marrero and Anderson. Sakara was a very large man. He was stabbed several times in the torso, although his cause of death was blunt force trauma to the head. The State suggested that because of Sakara's large size, the blow to the head might well have been necessary to "finish him off." Anderson's body was not dismembered in the same manner as the others. However, it was mutilated by removal of the penis. The body was bagged in similar fashion, but using eight layers, presumably because of the added size and weight of the full body, rather than one of the seven severed parts. The remains were disposed of along the roadside of a major highway in a trash barrel. At a nearby but separate highway location, Anderson's clothing and personal items, including his identification, were found. This was similar to the others, and it was significant because the bodies were disposed of in locations where it would be expected that they would be found, along with the victims' identification materials.
The State argued that because of Anderson's very small size, the failure to cut his body into multiple parts for disposal was not necessary, and that explains why it was not done. The judge took that dissimilarity into account, and credited that explanation.
The judge was clearly convinced that the multitude of similarities outweighed the similar single dissimilarity, and thus, considering all of the circumstances of the murders, the signature was sufficiently established. The evidence supports the judge's finding that there were sufficient facts in common in the Anderson murder and the others to establish an unusual pattern, characterized by peculiar, unique, or bizarre similarities.
The fourth Cofield prong requires a balancing of the probative value of the evidence against its apparent prejudice.
Cofield, supra, 127 N.J. at 338. This prong incorporates the N.J.R.E. 403 balancing test. Covell, supra, 157 N.J. at 568. Trial judges are afforded broad discretion in this balancing process, and we find no mistaken exercise of discretion here. The probative worth of the other-crimes evidence to prove identity was extremely high, and, for the reasons we earlier explained, the evidence was necessary to assist the State in proving identity. The judge did not exceed his discretion in concluding that the probative value of the other-crimes evidence was not outweighed by its apparent prejudice.
We turn now to the other purposes for which the judge admitted the other-crimes evidence, intent, opportunity and plan. Defendant argues that these issues were not genuinely in dispute. He argues, essentially, that there was no evidence that the killings of Mulcahy and Marrero were not knowing or purposeful, that defendant presented no evidence or arguments to the effect that he did not have the opportunity to kill Mulcahy or Marrero, and that the evidence failed to support the existence of an overarching, integrated plan greater than the separate crimes themselves.
The State argues that these issues were genuinely in the case, and, although defendant presented no separate evidence or arguments, by his general denial of guilt and leaving the State to its proofs, the evidence was necessary to assist the State in proving that defendant knowingly or purposely caused Mulcahy's and Marrero's deaths. The State argues that when admitted for these purposes, the evidence demonstrates that the murders were premeditated, that defendant sought a particular type of victim with whom he came into contact under particular circumstances, thus showing that his intention was to kill the victims, that he had the opportunity to do so, and that doing so was part of an ongoing scheme or plan.
In his summation, the prosecutor explained it this way:
You heard in your preliminary instructions, you saw in your questionnaires that you completed, and you're going to hear again from [the judge] that the evidence of the Anderson and Sakara homicide is here for limited purposes, those being to prove the identity and the mo[d]us operandi, if you will, of the person who killed not only Thomas Mulcahy and Anthony Marrero, but Peter Anderson and Michael Sakara.
You can determine whether there was a common plan. And in this case I suggest to you that Richard Rogers was targeting gay men, notwithstanding the fact that he's gay, and his intent, he intended to kill them, and the opportunity that he had to do that. The other evidence gives you the complete picture. It fills in the blanks with respect to the Mulcahy and the Marrero homicides.
After arguing how the other-crimes evidence established identity, the prosecutor continued:
Opportunity. Anthony Marrero is for hire. You . . . have the money, you get Anthony Marrero. Sakara? Yeah, he knew him, and he's with him early into the morning hours of July 30th. And I'll get to that in a minute. Sakara has had at least twelve scotches according to [the bartender]. He picked him up at that point. And we start talking about his plan, his intent, as I mentioned, everybody that he targeted . . . is a gay man. . . .
He has a car. He likes to drive. When he needs to accomplish what he's doing, a sharp instrument to inflict the stab wounds, a saw to accomplish the dismemberments, the garbage bags, the shopping bags, those kind of things are easily carried in a car. He's prepared to kill and dispose of the bodies when he goes out.
You can draw inferences from not only the manner of death, but the method of disposal, the dismemberment, and the way these people were left to be picked up with the trash. There was no dignity in death for anybody involved in this case. You can infer premeditation from that. You can infer motive. You can infer intent to kill.
The prosecutor further elaborated by discussing the Bible passage we quoted earlier:
Take a look at it when you go into the jury room. It's of particular interest, because it has to do with the murder of Isboseth. It refers to Isboseth fleeing with a nurse and the murder of Isboseth. And when he was murdered, the murderers cut off his head and carried it to King David.
Now, that's a peculiar passage to have marked in your Bible, unless you have some particular interest in that type of thing. That passage also goes on to say that King David wasn't happy, and he punished the murderers and cut off their hands. Now, in the context of this case, folks, I suggest that's pretty bizarre.
Although the issues of intent and opportunity were not squarely placed in issue by contradictory evidence or arguments, we agree with the State that defendant's general denial of guilt in the circumstances of this case and in light of the proofs available, placed those issues sufficiently in dispute as to render the other-crimes evidence probative as to them. Likewise, although the plan is not clearly defined, the marked biblical passage, with its eerie references to a nurse and dismemberment of the bodies of murder victims, supported a permissible inference that, in his mind, defendant was acting pursuant to some overarching plan.
Therefore, the Anderson and Sakara murders were probative in supporting the State's argument that "the similarities among the four killings were not simply due to defendant's organizational skills, but were rather a deliberately sought goal aimed to achieve a particular end." That is, in addition to demonstrating a consistent modus operandi, the similarities of the killings also demonstrated that defendant was paying homage to the Bible story.
We agree with the State that the evidence was sufficient to render the other-crimes evidence admissible on the issue of plan, which in this context was akin to motive. We do not believe the judge exceeded his discretion in allowing it for that purpose.
With respect to all three of these issues, intent, opportunity and plan, the probative value of the other-crimes evidence was not outweighed by the risk of undue prejudice. Notably, the other-crimes evidence was clearly admissible on the issue of identity. Therefore, the evidence would have been admitted in any event, thus diminishing the strength of any argument by defendant that it should have been precluded because, perhaps, its probative value regarding intent, opportunity and plan was more attenuated.
We next address defendant's argument that the limiting instruction to the jury regarding the other-crimes evidence was incorrect or fatally insufficient. We set forth in its entirety the lengthy instruction the judge gave:
In this case the state has introduced evidence that the defendant committed two additional murders, one in Lancaster, Pennsylvania, in 1991, and one in Rockland County, New York, in 1993. These were murders of adult gay man [sic]. In one case the body of the victim was dismembered. In the other case, the victim's penis was cut off and placed in his mouth.
It is important that you know that the defendant, Richard W. Rogers, has never been charged with or convicted of these other crimes. Normally, such evidence is not permitted under our rules of evidence. Our rules specifically exclude evidence that a defendant has committed other crimes, wrongs or acts when it is offered only to show that he has a disposition or tendency to do wrong, and therefore must be guilty of the charged offenses. Before you can give any weight to this evidence, you must be satisfied that the defendant committed the other murders. If you are not so satisfied, you may not consider this evidence for any purpose.
Our rules, however, do permit evidence of other crimes, wrongs or acts when that evidence is used for certain specific narrow purposes. In this case, under this indictment, the defendant is charged with committing two murders. The prosecution has attempted to prove to you that he committed two additional murders, one in Lancaster, Pennsylvania, in 1991, and one in Rockland County, New York, in 1993.
In this case the state is offering evidence of these other crimes committed in New York and Pennsylvania for the specific limited purpose of proving identity, plan, opportunity and/or intent. Before you can give any weight to this evidence, you must be satisfied that the defendant committed those other crimes. If you are not satisfied that the defendant committed either or both of the other crimes, then you may not consider that evidence of those other crimes for any purpose.
In this case the state alleges that the circumstances in which the defendant came into contact with each of the victims in this case, and the victims in the Pennsylvania and New York cases, the circumstances and method of each murder and the method of disposal of each victim's body, tend to prove the defendant's identity as the perpetrator of each murder, and his plan, opportunity and intent in committing each murder.
Whether this evidence does, in fact, demonstrate identity, plan, opportunity and/or intent is for you to decide. You may decide that the evidence does not demonstrate any of these things. In that case, you must disregard the evidence of these other crimes. On the other hand, you may decide that the evidence does demonstrate identity, plan, opportunity and/or intent, and you may use that evidence for that specific purpose.
You may not use the evidence of the Pennsylvania and New York murders to decide that the defendant has a tendency to commit crime or that he is a bad person. You may not decide that just because the defendant has committed these other crimes, he must be guilty of any of the crimes in this indictment.
The evidence is admitted only to help you decide any specific questions of identification or plan or opportunity and/or intent. You may not consider it for any other purpose, and you may not find the defendant guilty simply because the state has offered evidence that the defendant committed the other crimes.
Here the evidence has been offered to attempt to convince you that the Anderson and Sakara murders and the Mulcahy and Marrero murders are so similar and so unique that you may infer that the same person committed all of them. You may not draw this inference unless you conclude that the prior criminal activity in which this defendant is identified is so nearly identical in method as to earmark the crime as the defendant's handiwork.
The conduct in question must be unusual and distinctive so as to be like a signature. And there must be proof of sufficient facts in both crimes -- in this case, both of the other crimes -- to establish an unusual pattern.
Whether this evidence does, in fact, demonstrate identity, plan, opportunity or intent is for you to decide. You may decide that the evidence does not demonstrate identity, plan, opportunity or intent, and it is not helpful to you at all. In that case, you must disregard the evidence. On the other hand, you may decide that the evidence does demonstrate those things and use it for those specific purposes.
You may not use the evidence to decide that the defendant has a tendency to commit crimes or that he is a bad person. You may not decide that just because the defendant committed those other crimes, wrongs or acts, he must be guilty of these crimes. This evidence is admitted only to help you with those specific issues of identity, plan, opportunity or intent, and you may not consider it for any other purpose. You may not find the defendant guilty now simply because the state has offered these -- this other evidence of the Pennsylvania and New York crimes.
Now, ladies and gentleman, you're sitting there saying, you know, how many times does this guy think he has to tell us that? Well, I don't blame you. Because if you are tired of listening to it, I'm tired of reading it. But it is a very important instruction, and I must make sure that you understand and then follow the limiting instruction.
Each of you at the beginning of the trial answered the question that you would be able to follow that instruction and you understood it. So if it sounds like I have said it too many times, I want you to understand it's because it is important that you use that evidence, if you find it to be true, only for those purposes.
Defendant argues that this instruction contained three serious errors: (1) it did not make clear that the burden of proof by which the jury must be "satisfied" that defendant committed the other offenses is clear and convincing evidence; (2) with respect to signature crimes, it failed to accurately identify which aspects of the other crimes have a bearing on their "signature" status and which do not; and (3) it did not offer meaningful guidance as to how the other-crimes evidence might bear upon plan, opportunity or intent.
Initially, we comment on our standard of review. There was no objection to this instruction. Therefore, at the very least, our review is guided by the plain error standard, and we will not reverse unless any error was clearly capable of producing an unjust result. R. 2:10-2. Not any possibility of an unjust result is sufficient, but the possibility must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971). With respect to a jury charge, plain error is an impropriety "prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S.Ct. 2254, 26 L.Ed. 2d 797 (1970).
Further, the instruction delivered to the jury in the final charge was an expanded version of the one jointly formulated by defense counsel and the prosecutor prior to jury selection, which was used in the prequalifying written questionnaire completed by all potential jurors and utilized during the oral voir dire process. Thus, the State argues that doctrine of invited error should apply. Under this doctrine, an appellate court will not review a claim of error if the party asserting error on appeal "urged the lower court to adopt the proposition now alleged to be error." Brett v. Great Am. Recreation, Inc., 144 N.J. 479, 503 (1996). Thus, "a party may not argue that the jury was instructed to apply the wrong legal standard if that party argued for the application of that standard at trial." Id. at 504. Invited errors are only subject to plain error review if they "cut mortally into the substantive rights of the defendant." State v. Shomo, 129 N.J. 248, 260 (1992) (citation and quotation omitted). The State argues that, in effect, defense counsel approved the final jury charge when he assisted in the creation of the preliminary questionnaire, and as a result, any error now alleged on appeal is invited error and is subject to the very stringent standard of review we have described.
However, the pre-trial questionnaire was for use prior to the presentation of evidence. The asserted error pertains to the final jury charge, which defendant argues should have been formulated based on the evidence and with appropriate reference to the evidence. We agree with the distinction and will apply the plain error standard.
When evidence is admitted under N.J.R.E. 404(b), the jury must be instructed under N.J.R.E. 105 as to its limited use. Marrero, supra, 148 N.J. at 495. Because of the inherently prejudicial nature of other-crimes evidence, the court's instruction must carefully and precisely explain the permitted and prohibited uses of such evidence, with sufficient reference to the factual context of the case. Ibid. "[T]he court must not only caution against a consideration of that evidence for improper purposes, it must through specific instruction direct and focus the jury's attention on the permissible purposes for which the evidence is to be considered." State v. G.S., 145 N.J. 460, 472 (1996).
We summarily reject defendant's first argument, namely that the jury should have been instructed that it had to find by clear and convincing evidence that defendant committed the other crimes, rather than merely be "satisfied" that he did. No special instruction regarding the State's burden of proof is appropriate in this regard. See State v. Wilson, 158 N.J. Super. 1, 5-10 (App. Div.), certif. denied, 79 N.J. 473 (1978). Defendant argues that, at least with respect to the use of other-crimes evidence to prove identity, it is so powerful and so highly prejudicial that we should adopt a higher standard to be applied by the jury before the jury may consider it. We decline to deviate from the well-settled principle that "'a jury may draw an inference from a fact whenever it is more probable than not that the inference is true; the veracity of each inference need not be established beyond a reasonable doubt in order for the jury to draw the inference.'" State v. Kittrell, 145 N.J. 112, 131 (1996) (quoting State v. Brown, 80 N.J. 587, 592 (1979)). Although defendant asks for a clear and convincing (not beyond a reasonable doubt) standard, the rationale for rejecting any enhanced standard for the jury's consideration dictates the same result.
We also find unmeritorious defendant's argument that the instruction was deficient for failing to accurately identify those aspects of the other crimes that bore on the signature and those aspects that did not. Defendant correctly states the general proposition that when other-crimes evidence is used for identity, and there are similarities and dissimilarities between that offense and the charged offense, the jury should be aware of the similarities and dissimilarities, and the limiting instruction should inform the jury of those dissimilar aspects, which should not be considered as signature-crime evidence. State v. Fortin, 189 N.J. 579, 600-01 (2007) (Fortin III). In this case, there were many similarities and some dissimilarities. Some applied to both of the other crimes, and some to only one of them. Both counsel made appropriate and thorough arguments regarding the similarities and dissimilarities, which were, by their nature, self-evident and easy for lay jurors to understand.
In charging the jury, the judge did not endeavor to separate the similarities from the dissimilarities and inform the jurors that they could consider only the former but not the latter. Instead, in conformity with the jointly formulated instruction prior to jury selection, the judge summarized the basis for the State's allegation that the other crimes tended to prove defendant's identity, plan, opportunity and intent because of "the circumstances in which the defendant came into contact with each of the victims in this case, and the victims in the Pennsylvania and New York cases, the circumstances and method of each murder and the method of disposal of each victim's body." In addition to joining in the formulation of this language at the beginning of trial, defendant did not object to it being utilized in the charge at the end of trial. The State argues that this was probably done for a strategic reason, namely to avoid having the judge lend the court's authority to enumerating and highlighting the long list of similarities. Because there was no objection or proposed modification to this aspect of the charge, the court lost the opportunity to provide what defendant now seeks on appeal. In the context of this case, we find no error in this aspect of the charge, let alone plain error.
Defendant correctly points out that the instruction provided no case-specific guidance as to how the other-crimes evidence might bear upon plan, opportunity or intent. A proper N.J.R.E. 404(b) limiting instruction should not be confined to stating the permitted purpose or purposes for which the evidence may be considered, but should explain the manner in which it can be considered for those purposes in light of the evidence presented. See Stevens, supra, 115 N.J. at 309. However, failure to do so does not necessarily constitute reversible error, and the "lack of clarity in the limiting instruction [may be] harmless and not clearly capable of producing an unjust result." Ibid. Instead, a fact-specific inquiry must be made to determine whether prejudice resulted from the insufficiency in the limiting instruction. G.S., supra, 145 N.J. at 473.
In our view, the lack of further explanation as to how the other-crimes evidence could be used for the issues of intent, opportunity and plan did not result in prejudice. The essential point of the required limiting instruction is that the jury be clearly told that the other-crimes evidence cannot be used to show criminal disposition. Id. at 474. That point was driven home repeatedly in this case. And, the specific purposes for which the other-crimes evidence was permitted to be used was identified clearly and repeatedly.
Thus, this is not like the situation in Cofield, where no specific permitted purpose was identified for the jury, and the jury was merely told it could use the other-crimes evidence for the "limited purpose of proving some other fact in issue." Cofield, supra, 127 N.J. at 333. That generality allowed the jury "free rein" to use the other-crimes evidence for any purpose. Id. at 342. Nor do we view this like the faulty instruction in State v. Oliver, 133 N.J. 141, 157 (1993). In that case, the instruction was not as erroneous as the one in Cofield, but was nevertheless deficient for merely reciting that the other-crimes evidence could be used for "intent or plan, without further explanation." Id. at 159. However, plain error was found because the rather confusing language in the charge "appear[ed] to admonish the jury to use the evidence to determine whether any similarities existed between the assaults testified to by [the victims in the other-crimes cases] and those charged in the indictment," and "[i]nviting this jury to use the other-crime evidence 'on the issue of whether the alleged sexual assault had any similarities' with the indicted assaults not only gave the jury free rein to use that evidence as it wished but implicitly gave the court's blessing to any such uses of the evidence." Ibid. Thus, plain error was found for the same reason as in Cofield.
From our fact-specific analysis of this record, we do not find the presence of the same infirmity. As in G.S., supra, 145 N.J. at 474, the trial court here repeatedly avoided the first potential risk of harm to defendant by repeatedly instructing the jury it could not use the other-crimes evidence to show criminal disposition. We note in passing that even when that "essential point" is missed, it is not necessarily fatal and can still be viewed as harmless error. See Marrero, supra, 148 N.J. at 495-97.
The second potential danger of prejudice arises from the lack of specificity about the permitted use of the other-crimes evidence if that lack of specificity has the real potential to lead the jury to a result it might not otherwise have reached. G.S., supra, 145 N.J. at 474. In the context of this trial, the use of the other-crimes evidence as it related to defendant's intent, opportunity and plan were circumscribed by the evidence and arguments of counsel. We do not perceive any real danger that the jury might have used these concepts impermissibly. Indeed, defendant merely relies upon the general rule that further explanation within the framework of the evidence should be given, but does not suggest how the other-crimes evidence might realistically have been used to lead the jury astray. We reach the same conclusion as did the Court in G.S., that in light of the context of the entire trial record and the repeated anti-disposition instructions, the lack of specificity here did not have the clear capacity to tip the jury's deliberations to a result it might not otherwise have reached. Id. at 476.
Defendant makes two arguments regarding his conduct when he was being questioned by police, after being Mirandized, on the night of his arrest. First, he argues that evidence of his head nodding should not have been admitted because it did not meet the requirements of an adoptive admission. In support of this argument, defendant contends that his head nodding did not constitute "unambiguous assent" to statements made by the police conducting the interview. Further, he argues that even if that evidence was properly admitted, the court reversibly erred by failing to instruct the jury that it could only consider the evidence if it found that defendant's actions constituted unambiguous assent. Second, defendant argues that the prosecutor's summation comment that defendant "clammed up" during the course of his interview violated his right to remain silent.
When defendant's statement to the police was considered at the N.J.R.E. 104 hearing, both parties and the court considered the issue of admissibility of defendant's head nodding conduct as controlled by the adoptive admission rule. N.J.R.E. 803(b)(2). To qualify as an adoptive admission, the party charged with the admission must be aware of and understand the content of the statement allegedly adopted and it must be clear that the party unambiguously assented to the statement. McDevitt v. Bill Good Builders, Inc., 175 N.J. 519, 529-30 (2003). Defendant does not dispute that he was aware of and understood the contents of statements made by the police interrogators. However, he denies that his nodding of the head demonstrated unambiguous assent to their comments.
Application of the rule requires consideration of the context in which someone's statement may be adopted by another person. This was an interrogation. Defendant was not presented with a statement made by some third party. He was being questioned by the police regarding his suspected involvement in these four murders. When the police informed defendant that the true purpose for which he was brought in for questioning was that the police possessed substantial evidence linking defendant to the crimes, his demeanor abruptly changed. He had been affable, talkative and cooperative. Suddenly, he became quiet and nervous. Then, when the police informed him of the specific inculpatory evidence with respect to each of the four victims, defendant nodded his head up and down, which is commonly understood to be the equivalent of an affirmative response.
However, the nonverbal affirmative response did not follow a yes-or-no question, such as, "Did you kill Thomas Mulcahy?" In each case, it was a response to the recitation of a summary of the evidence linking defendant to the crime.
As defendant argues, a proper interpretation might be that, if the jury believed his head nodding was a nonverbal affirmative response, it may well have signified only defendant's understanding of the evidence the police contended they had, but not an admission that he committed the crime. Or, defendant argues his head nodding could be interpreted as not a nonverbal response at all, but only part of his nervous demeanor knowing that he was now a suspect in a series of murders. And, the State would have the jury infer that defendant's head nodding indicated his acknowledgment that he was guilty of the murders or that his fingerprints were on the bags related to three of the murders because he indeed touched those bags.
On appeal, the State acknowledges that in the trial court the issue was not properly analyzed under the adoptive admission rule. The State also points out that neither the judge nor any party ever referred to the head nodding as a possible adoptive admission in the presence of the jury, and no witness was permitted to give an interpretation or opinion to the jury of any belief that defendant intended to admit guilt. Rather, according to the State, defendant's conduct was objectively described and, subject to a credibility determination as to the accuracy of the description, left to the jury to interpret.
Both counsel made their arguments, urging the jury respectively along the lines we outlined above. The prosecutor, after describing defendant's outgoing and calm demeanor before being confronted with the inculpatory evidence, said in summation:
The minute he was confronted with the information that those officers possessed and the fact that they weren't looking for his help, they were looking to talk to him about murders they say he had done, his demeanor changed. He clammed up. He folded his arms. He folded his legs. But the critical part of that is what you take the head nodding to mean.
If, for example, instead of nodding his head, defendant had responded verbally with "yeah" or "ah huh" or "yes," the jury would have heard that response as part of defendant's responses to his Mirandized interview. It would have been up to the jury to interpret the response. That does not change in the case of a nonverbal response, if the jury interpreted it to be one. In these circumstances, we do not find any mistaken exercise of discretion in the judge's admission of this evidence.
Nor do we find any impropriety in the prosecutor's comment that defendant "clammed up." That was a reference to the drastic change in defendant's demeanor when he was first told he was a suspect and the police had indisputable evidence linking him to the four murders. It was a description, along with defendant's obvious nervousness, gulping of air and passing gas (for which he repeatedly verbally excused himself), of defendant's change in demeanor from being previously calm and talkative. It was not a comment on defendant's right to remain silent. Defendant did not invoke his right at that time. When he later invoked it, the police immediately honored it and terminated the interview.
Defendant's final argument pertains to territorial jurisdiction. He argues that although the initial jury instruction on that point was correct, after the jury asked a question during deliberations, the recharge on the issue was erroneous in two respects. First, defendant contends the judge correctly told the jury that the inference of jurisdiction arising from the location of the bodies in New Jersey was permissible, but, defendant argues the judge then contradicted himself, stating, "You have to take the permissible inference from the statute." Second, defendant argues that the judge erred in the recharge by omitting the pro-defense example of when jurisdiction would not be present.
When error is alleged in a jury charge, we must read the charge as a whole, and will not isolate a portion alleged as error. State v. Wilbely, 63 N.J. 420, 422 (1973). We have reviewed the recharge in its entirety. It was lengthy and the judge repeatedly made clear that the inference was permissible. In context, the specific phrase isolated by defendant does not change that meaning. And, deletion of the example referred to by defendant was an appropriate exercise of discretion.
There was no error in the recharge, and defendant's arguments on this point lack sufficient merit to warrant further discussion. R. 2:11-3(e)(2).