On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 05-02-218.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lintner, Graves and Alvarez.
Following a jury trial, defendant Robert Hill was convicted of second-degree conspiracy to commit murder, contrary to N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3, (count one), and first-degree murder, contrary to N.J.S.A. 2C:11-3 (count two). The victim was Gwendolyn Boyd, defendant's fiancé. At sentencing on February 24, 2006, the trial judge stated: "This was a particularly heinous and cruel crime . . . in which the victim, a school teacher who was supporting you and providing you with a home to reside in, was strangled to death by a bungee cord. The murder was planned, the conspiracy entered and executed, as was the victim." The court merged count one into count two and sentenced defendant to life in the custody of the Commissioner of Corrections, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.
On appeal, defendant raises the following arguments through counsel:
THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF THE TRIAL COURT'S RULING PRECLUDING HIM FROM BEING PHYSICALLY PRESENT AT SIDEBAR CONFERENCES DURING JURY VOIR DIRE.
THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION TO SUPPRESS THE VARIOUS STATEMENTS TAKEN FROM THE DEFENDANT BY THE POLICE SINCE THEY WERE OBTAINED IN VIOLATION OF MIRANDA V. ARIZONA.
THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL BY BEING FORCED TO PROCEED WITH AN UNDESIRABLE JURY WHEN THE COURT REFUSED TO DISMISS VARIOUS JURORS FOR CAUSE, THEREBY REQUIRING THE DEFENSE TO UTILIZE AND EXHAUST ALL PEREMPTORY CHALLENGES.
THE TRIAL COURT ERRED BY PRECLUDING THE DEFENSE FROM ELICITING TESTIMONY REGARDING THE RESULTS OF A VOICE STRESS ANALYZER TEST ADMINISTERED TO THE DEFENDANT BY THE POLICE.
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
In addition, defendant presents the following points in his pro se supplemental brief:
PROSECUTOR WHO CREATED A CONFLICT OF INTEREST AND PARTOOK IN CUMULATIVE MISCONDUCT (INCLUDING THE VIOLATION OF ATTORNEY-CLIENT PRIVILEGE, DESTRUCTION OF EXCULPATORY EVIDENCE, VIOLATION OF SEQ[UE]STRATION, AND TAMPERING WITH A WITNESS) DEPRIVED THE DEFENDANT-APPELLANT OF HIS RIGHT TO A FAIR TRIAL.
BIAS AND ABUSE OF DISCRETION CAUSED BY A CONSIDERABLE CONFLICT OF INTEREST RESULTED IN AN AGGREGATE OF PLAIN ERROR, RENDERING A REVERSAL OF CONVICTION.
BECAUSE THE JURY WAS CHARGED WITH AN AMBUSH CATCH-ALL THEORY BY THE JUDGE AND ALLOWED TO DELIBERATE BEFORE BEING FULLY CHARGED, THE GUILTY VERDICT WAS INEVITABLE, AND THUS MUST BE REVERSED.
THE PROSECUTOR'S OPENING REMARK THAT THE JUDGE HAD "TALKED ABOUT THE FACT THAT [THE APPELLANT] CONSPIRED . . ." WAS IMPROPER AND LED THE JURY TO BELIEVE THE COURT HAD CONSIDERED THE CONSPIRACY A FACT.
THE DEFENDANT-APPELLANT WAS SUBJECTED TO EXTENSIVE UNDUE PREJUDICE RESULTING FROM THE INTRODUCTION OF EXCESSIVE INADMISSIBLE OTHER-CONDUCT EVIDENCE THAT SHOULD NOT HAVE BEEN ADMITTED PRIOR TO COFIELD/MARRERO TESTS, AND IF ADMITTED SHOULD HAVE BEEN SANITIZED AND FOLLOWED BY MANDATORY LIMITED-USE INSTRUCTIONS TO PREVENT THE JURY FROM CONVICTING DUE TO THE APPELLANT BEING A "BAD PERSON."
APPELLATE COUNSEL'S POINT REGARDING SIDE BAR PRESENCE DURING JURY SELECTION MUST BE SUPPLEMENTED TO INCLUDE THE JUDGE'S FRANK ADMITTANCE.
THE APPELLANT WAS PREJUDICED BY VARIOUS MISCELLANEOUS ISSUES.
THE CUMULATIVE IMPACT OF THE ISSUES RAISED IN APPELLATE COUNSEL'S BRIEF AND HEREIN CAUSED AN UNFAIR OUTCOME.
After considering all of these arguments in light of the record and the applicable law, we affirm.
At approximately 1:30 p.m. on May 18, 2002, defendant Robert Hill knocked "heavily" on the door of his neighbor, John Winstanley. After observing defendant was sweating, breathing heavily, and had mucous coming out of his nose, Winstanley repeatedly asked defendant "what the problem was or what's the matter," but defendant did not "reply at all." Because he was unable to get any information from defendant, Winstanley told his daughter to dial 9-1-1. As defendant started to leave, Winstanley told him that help was on the way, at which point defendant dropped to his knees and said, "She's dead. Mother F'er." Winstanley understood that defendant was referring to Gwendolyn Boyd, his fiancé, with whom he resided at 1854 Moore Road. Winstanley stood in his driveway watching as defendant returned to his residence.
Minutes later, Officer Kevin Geoghegan of the Dover Township Police Department arrived at the scene. As he walked up to the front door at 1854 Moore Road he heard a male voice screaming and crying out. Geoghegan opened the screen door and began to enter through the partially-opened interior wooden door when he realized there was a female body clad only in panties lying face-up in the doorway. He quickly determined the victim was cold and had no pulse. Geoghegan then observed defendant sitting on the steps leading to the first floor of the split-level home. Defendant was distraught, yelling "[w]ho could have done this? Why did this happen?"
Shortly thereafter, Edward Spahr of the Dover Township Police Department arrived, and it was determined the victim was forty-year-old Gwendolyn Boyd. Although the police officers attempted to elicit information from defendant, he was extremely agitated, and, for the most part, "he was not forthcoming with direct answers to direct simple questions."
As more officers arrived at the scene, Geoghegan and Spahr asked defendant if he would accompany them to the police station to give a statement, and he agreed to do so. Spahr testified that as they left the house, defendant "was more concerned with looking out the window of the door than actually looking down at his fiancé." Detective James Pissott, of the Ocean County Prosecutor's Office, who was also present in the house as defendant was leaving, recalled defendant stating, "I don't want any cameras out there," and "Damn, why is [sic] there so many cops out there?"
Following defendant's departure, Pissott noticed a bungee cord near Boyd's body, as well as a rubber glove tip under one of Boyd's legs and another one next to her body. He also examined the body and noted there was a ligature mark on the neck. Dr. Hydow Park, the pathologist who performed an autopsy on Boyd's body, subsequently confirmed that she died from "ligature strangulation." At trial, Park would not give an estimated time of death, but he concluded Boyd had "been dead at least six hours, and probably twelve hours" when her body was discovered.
At the police station, Sergeant Vincent Frulio of the Ocean County Prosecutor's Office and another detective interviewed defendant. Defendant stated he and Boyd had been together for two years, and he had moved into her Toms River home in January 2001. He related he had been unemployed since May 5, 2002, and he said he was trying to start an on-line business. He acknowledged he regularly used Boyd's Mitsubishi Montero because he did not own a car, and his cell phone was registered to Boyd.
Defendant told the police he had driven Gwendolyn Boyd to the Newark school where she worked as a second-grade teacher on May 17, 2002, and then spent most of the day in the company of his girlfriend, Nadia Bryant. He later picked Boyd up around 3:30 p.m. and drove home after stopping briefly at a fast food restaurant to pick up some food for Boyd. He remained at the house with Boyd (except for a brief trip to a local restaurant to pick up some take-out food) until approximately 10:00 p.m., when he left to go visit friends in North Jersey.
During the trip north, defendant placed numerous calls to Michelle Simmons, another one of his girlfriends. Defendant told the police he drove to various locations in Jersey City and East Orange in the hopes of seeing some friends, but he was unable to provide details of his whereabouts. Eventually, at approximately 2:30 a.m. on May 18, 2002, defendant went to Nadia Bryant's apartment in East Orange where he spent the rest of the night.
Defendant consented to a search of Boyd's Montero, but he asked to be present when the vehicle was searched. Accordingly, the police took defendant to a motel for the night and then picked him up the next morning and drove him to 1854 Moore Road. Upon arriving at the house, Sergeant Frulio noticed defendant was shaking, and he appeared extremely nervous. During the search, defendant "became visibly upset" when the police told him he "would not be taking possession of the vehicle or have access to the residence" when the search was completed. At trial, Mitchell testified defendant "was shocked" when he was told he would not have access to Boyd's vehicle, and defendant stated: "What am I going to do now?"
When the search of the vehicle was completed, Mitchell asked defendant if he would return to the police station to speak with him. Defendant agreed. During this interview, Detective Mitchell again reviewed defendant's activities on May 17 and 18, 2002. Defendant told Mitchell that before he left home on the night of the 17th, he had received a phone call from Omar Byrd, the house painter he and Boyd had hired, who had advised him that he would be unable to make it the following day due to the weather. Defendant also told Mitchell that he stayed with Nadia Bryant until about noon on May 18, and when he tried to telephone Boyd while he was driving home, he got no answer. In addition, defendant mentioned that after he returned from Winstanley's house, he touched Boyd and picked up the bungee cord lying nearby. At the end of the interview, defendant was given twenty dollars and driven to the Point Pleasant Train Station, so he could take the train to his mother's house in Roselle.
Over the course of the next few days, police determined there were no broken windows in the house and no sign of a forced entry, although a few windows were open. They found no fingerprints in the house other than defendant's and Boyd's. They submitted numerous items, including the two rubber glove fingertips, to the police lab for DNA analysis. They recorded the messages on Boyd's telephone answering machine, which ultimately turned out to be inaudible, and they confirmed Gwendolyn Boyd owned the home alone, and she died intestate. They also spoke to Michelle Simmons, Nadia Bryant, and Omar Byrd. During the course of their investigation the police discovered a number of Boyd's personal belongings, including her vehicle registration, Blue Cross/Blue Shield card, a paystub and a credit union statement, in a dumpster on Crane Street in Newark, near the home of one of defendant's former girlfriends with whom he was still in contact.
Based upon a review of defendant's cell phone records, the police learned that a call had been placed to Kadisha Little on the night of May 17. They subsequently learned that Little was the girlfriend of one Michael Scott,*fn1 and they interviewed Scott on May 24, 2002.
Defendant was not arrested for the murder of Boyd until July 2003. The DNA results from the glove tips did not come back until March 2004. The DNA of Gwendolyn Boyd and Michael Scott, but not defendant, was identified in the fingertips of the rubber gloves. At that time Scott was also arrested for the murder of ...