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State v. Boretsky

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 28, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
BORIS BORETSKY, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Middlesex County, Indictment No. 02-05-642.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: May 14, 2008

Before Judges Wefing, Parker and Kestin.

Defendant, Boris Boretsky, was charged in a nine-count indictment with two crimes of the first degree: murder, N.J.S.A. 2C:11-3a(1),(2) (count six), and felony-murder, N.J.S.A. 2C:11-3a(3) (count seven); two crimes of the second degree: aggravated assault, N.J.S.A. 2C:12-1b(1) (count one), and burglary, N.J.S.A. 2C:18-2 (count four); two crimes of the third degree: terroristic threats, N.J.S.A. 2C:12-3 (count two), and possession of a weapon for unlawful purpose, N.J.S.A. 2C:39-4d (count eight); and three crimes of the fourth degree: two instances of contempt, N.J.S.A. 2C:29-9b (counts three and five), and tampering with or fabricating physical evidence, N.J.S.A. 2C:28-6(1) (count nine).

Following a jury trial, defendant was convicted of all charges. In the penalty phase regarding the conviction for murder, the jury could not reach unanimous agreement on the death penalty sought by the State.

Accordingly, the trial court, after merging the convictions for felony-murder and possession of a weapon for unlawful purpose into the murder conviction, sentenced defendant, for murder, to a life term of imprisonment without parole. Consecutive sentences of imprisonment were also imposed: ten years with eighty-five percent parole ineligibility on the conviction for second-degree burglary; seven years with eighty-five percent parole ineligibility on the conviction for second-degree aggravated assault; five years on the terroristic threats conviction; and eighteen months on the tampering conviction.

Concurrent eighteen-month terms of imprisonment were imposed on each of the two contempt convictions.

Defendant appeals from the convictions. In counsel's brief, the following issues are raised:

POINT ONE

THE TRIAL COURT'S INSTRUCTION THAT THE JURY COULD CONSIDER EVIDENCE THAT DEFENDANT PREVIOUSLY ASSAULTED AND THREATENED HIS WIFE AS PROOF THAT HE WAS GUILY OF MURDER DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL. (Not Raised Below)

POINT TWO

THE MEDICAL EXAMINER'S TESTIMONY THAT THE CAUSE OF DEATH WAS "HOMICIDE" EXCEEDED THE SCOPE OF PERMISSIBLE EXPERT TESTIMONY AND IMPROPERLY ADDRESSED THE ULTIMATE ISSUE BEFORE THE JURY, THEREBY DEPRIVING DEFENDANT OF A FAIR TRIAL AND REQUIRING THE REVERSAL OF HIS CONVICTIONS. (Not Raised Below)

POINT THREE

THE COURT COMMITTED REVERSIBLE ERROR IN ITS REFUSAL TO SEVER THE COUNTS CHARGING CONTEMPT FOR VIOLATION OF A RESTRAINING ORDER.

POINT FOUR

BECAUSE THE STATE FAILED TO PROVE THE ELEMENTS OF TERRORISTIC THREATS BEYOND A REASONABLE DOUBT, THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL ON COUNT TWO.

POINT FIVE

DEFENDANT'S BURGLARY AND FELONY MURDER CONVICTIONS MUST BE REVERSED BECAUSE THE TRIAL COURT FAILED TO TAILOR THE CHARGE TO THE FACTS OF THE CASE AND FAILED TO INFORM THE JURY THAT VIOLATION OF A DOMESTIC VIOLENCE RESTRAINING ORDER DOES NOT SATISFY THE REQUIREMENT OF A "PURPOSE TO COMMIT AN OFFENSE THEREIN." (Not Raised Below)

The issues defendant raises in his pro se brief are framed in the following textual terms:

POINT 1

DURING THE TRIAL AND SUMMATION, THE PROSECUTOR COMMITTED SEVERAL ACTS OF MISCONDUCT WHICH VIOLATED DEFENDANT'S DUE PROCESS RIGHT TO A FAIR TRIAL, THE AMENDMENT XIV OF THE U.S. CONSTITUTION, AND ART. I, PAR. 10 OF THE N.J. CONSTITUTION (1947) (RAISED BELOW).

POINT 2

THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY ALLOWING THE JURY TO CONSIDER THAT THE DEFENDANT CAUSED SERIOUS BODILY INJURIES. OR CAUSED SIGNIFICANT BODILY INJURIES. THE JURY'S CONSIDERATION SHOULD HAVE BEEN LIMITED TO ATTEMPT TO CAUSE SERIOUS OR SIGNIFICANT BODILY INJURY ONLY (NOT RAISED BELOW).

POINT 3

THE TRIAL JUDGE ABUSED HIS DISCRETION BY ALLOWING THE STATE TO DISPLAY TO THE JURY PICTURES DEPICTING INJURIES SUSTAINED BY SAOULE MOUKHAMETOVA ON THE NIGHT OF JANUARY 19, 2002 WHERE THE LEAST POSSIBLE INFLAMMATORY EVIDENCE TO PROVE THIS POINT WAS AVAILABLE THROUGH THE TESTIMONY OF DR. GARIBALDI AND OFFICER DROST. THUS DEFENDANT WAS UNDULY PREJUDICED THEREBY AND WAS DENIED HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL (NOT RAISED BELOW).

POINT 4

THE ADMISSION OF HEARSAY TESTIMONY UNDER THE 'EXCITED UTTERANCE' EXCEPTION PROVIDED AT TRIAL BY MARINA MIROSHNICHENKO AS TO ALLEGED STATEMENTS MADE TO HER BY SAOULE MOUKHAMETOVA, AND THE DECISION BY THE TRIAL COURT IN A PRE-TRIAL HEARING TO PERMIT THIS HEARSAY WERE VIOALATIVE OF ESTABLISHED LEGAL PRINCIPLES AND CASE LAW, AND THUS CONSTITUTED A GROSS ABUSE OF JUDICIAL DISCRETION CLEARLY CAPABLE OF PRODUCING AN UNJUST RESULT, AND DENYED DEFENDANT DUE PROCESS AND A FAIR TRIAL (RAISED BELOW).

POINT 5

THE IMPROPER INTRODUCTION (AGAINST TIMELY OBJECTION) OF DOUBLE-HEARSAY (OR HEARSAY WITHIN HEARSAY), DURING THE CROSS-EXAMINATION OF DR. UTKEWICZ VIOLATED N.J.R.E. 802, 703(7), 404(b), AND 403, AS WELL AS VIOLATING DEFENDANT'S RIGHT TO CONFRONT HIS ACCUSER, THUS DEPRIVING HIM OF HIS RIGHT TO A FAIR TRIAL (RAISED BELOW).

POINT 6

THE TRIAL COURT VIOLATED DEFENDANT'S RIGHT TO A FAIR TRIAL BY PERMITTING INTO EVIDENCE THE TESTIMONIAL HEARSAY STATEMENTS OF SAOULE MOUKHAMETOVA TO JUDGE MARY CASEY IN DIRECT VIOLATION OF THE CONFRONTATION CLAUSE OF THE 6th AMENDMENT OF THE UNITED STATES CONSITUTION (RAISED BELOW), THE NEW JERSEY RULES OF EVIDENCE (RAISED BELOW), AS WELL AS DENYING THE DEFENDANT THE EFFECTIVE ASSISTANCE OF COUNSEL (NOT RAISED BELOW) AND THE DUE PROCESS CLAUSE OF THE U.S. CONSTITUTION (NOT RAISED BELOW).

A. The soliciting of the Casey/Moukhametova Transcripts Hearsay-Testimonial-Statement via Dr. Weinapple violated defendant's Right to the effective assistance of counsel as guaranteed by the Sixth Amendment of the United States Constitution and by Art. 1, Par 10 of the New Jersey Constitution, necessitating a reversal (not raised below).

B. The referral to the Hearsay-Testimonial-Statements in the Casey/Moukhametova Transcripts during Dr. Weinapple's cross-examination before the jury violated defendant's U.S. Constitutional Sixth Amendment Right to Confrontation.

C. The trial court failed to perform a Cofield/Marrero analysis of the admissibility of the Casey/Moukhametova Transcripts which would have shown the evidence inadmissible for failure to satisfy the 3rd and 4th prong of Cofield/Marrero, depriving the trial court of deference to its decision, requiring this Appellate Court to review the matter de-novo and NOT under a plain-error standard (not raised below).

D. The failure to provide a preliminary in-limine proceeding to determine exactly what information defense expert Dr. Weinapple based his opinion on permitted the prosecution to elicit and make reference to inadmissible testimonial hearsay, exposing it to the jury, thus denying defendant a fair trial and due process of law (not raised below).

POINT 7

THE ALLOWING OF E.M.S. TECHNICIAN LEMMERLING, A GOVERNMENT OFFICER, TO TESTIFY CONCERNING A HEARSAY TESTIMONIAL STATEMENT MADE TO HIM BY SAOULE MOUKHAMETOVA WAS IN VIOLATION OF THE CONFRONTATION CLAUSE OF THE U.S. CONSTITUTION, N.J.C.R. 3:13-3, N.J.R.E. 404(b), 403, 104, AND THE RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL (NOT RAISED BELOW).

A. The permitting of E.M.S. Technician Lemmerling to testify pertaining to the Hearsay-Testimonial-Statement of Saoule Moukhametova while under his forced care violated the confrontation clause of the 6th Amendment of the U.S. Constitution.

B. The trial court failed to perform a Cofield/Marrero analysis of the admissibility of the Saoule Moukhametova's testimonial statement to E.M.S. Technician Lemmerling, which would have shown the evidence inadmissible for failure to satisfy the 3rd and 4th prong of Cofield/ Marrero, depriving the trial court of deference to its decision, requiring this Appellate Court to review the matter de-novo and NOT under a plain-error standard (not raised below). C. Not being a true 'rebuttal witness,' the permitting of Mr. Lemmerling's testimony regarding 404(b) hearsay of Saoule Moukhametova violated defendant's due-process right to a fair trial, and the effective assistance of counsel as guaranteed by the United States Constitution and N.J. Constitution.

POINT 8

DURING JURY SUMMATION, THE TRIAL JUDGE GAVE THE JURY INCORRECT (AS A MATTER OF LAW) INSTRUCTION AS TO HOW TO WEIGH THE EVIDENCE, RELIEVING THE PROSECUTOR FROM ITS BURDEN OF PROVING ITS CASE BEYOND A REASONABLE DOUBT (NOT RAISED BELOW). [Sic]

The charges arose from the death of defendant's wife, Saoule Moukhametova, known as "Lana." The State alleged that defendant had murdered her, and introduced proofs establishing a troubled marital relationship that had led to the issuance of a temporary restraining order (TRO) under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, and was culminating in divorce proceedings.

The State's proofs initially focused upon the January 19, 2002, incident that had engendered the TRO, in which defendant, in the presence of others, had struck Lana, causing many bruises, a three-centimeter vertical laceration above her left eyebrow, and a broken nose. In the course of the altercation, defendant had also struck Lana's stepsister.

On January 31, 2002, the TRO was converted into a consent order continuing the restraint against personal contact and granting Lana exclusive possession of the marital home. The consent order required defendant to pay the mortgage and other household expenses, as well as Lana's attorney's fees, and to provide Lana with emergency financial support. According to the State's witnesses, defendant, from the date of the court proceeding in which the consent order was entered, reacted angrily and in threatening ways because the TRO kept him from the marital home and was "ruining" him. The events established in the proofs included defendant's March 1, 2002, visit to Lana's attorney at her office with angry demands for a resolution of the matter more favorable to him than the then-pending arrangement.

Two days later, in the evening of March 3, defendant visited the marital home. At one point during the visit, defendant spoke by telephone with a friend, reporting that Lana was dead. In response to the friend's question why he had violated the restraining order, defendant said that Lana had called him and invited him over to talk. Defendant related that they had argued and that Lana had grabbed a knife and threatened to kill either herself or defendant and "now she's dead." There was no mention of suicide, which defendant later asserted to the police and continued to invoke through trial. The cause of death was a knife wound above the right breast, near the armpit.

Our analysis of the record discloses that none of the issues raised on appeal has sufficient merit to warrant reversal of the convictions. We affirm with the following observations.

No error, let alone plain error, appears in the trial court's instruction to the jury that motive or intent could be inferred from evidence of the January 19, 2002, assault, which led to the issuance of the TRO, and a threat the following day, which formed the basis for the terroristic threats charge. The trial judge's instruction to the jury, finely tailored to suit the circumstances presented, was comprehensive and correct in every significant detail. The essence of the instruction was well summarized:

I have admitted the evidence only to help you decide the specific question of intent or motive as to the alleged murder on March 3rd. You may not consider it for any other purpose. You may not find the defendant guilty simply because the State has offered evidence that he committed other crimes, wrongs or acts.

The defense lodged no objection to the instruction.

The instruction and the evidence ruling leading to it fully complied with evidence rule standards and case law criteria. See State v. Cofield, 127 N.J. 328, 338 (1992). The instruction fully "clarif[ied] for the jury the narrow distinction between the permissible and impermissible uses of other-crime evidence." Id. at 341 (quoting State v. Stevens, 115 N.J. 289, 308-09 (1989)); see also State v. Castagna, 400 N.J. Super. 164, 186-87 (App. Div. 2008).

No error of any kind ensued, either, from receipt of the medical examiner's opinion that the victim's death was the result of a homicide. The views expressed were based upon well-articulated factual elements that satisfied the limitations governing such testimony, i.e., "narrating the physiological status of the bod[y] at the time of death, and ruling out the possibility that the injuries were self-inflicted or sustained as a result of mere inadvertence." State v. Jamerson, 153 N.J. 318, 337 (1998); see also State v. Baluch, 341 N.J. Super. 141, 155-56, 185 (App. Div.), certif. denied, 170 N.J. 89 (2001).

We also reject the argument that the trial court erred in its pre-trial ruling denying defendant's motion to sever the charges for contempt of the domestic violence restraining order. The motion judge was eminently correct in his view, distinguishing the barring effect of the rule of State v. Chenique-Puey, 145 N.J. 334, 341 (1996), that there was an inextricable interaction and meshing between the restraining order and the defendant's mental state. . . . The jury could reasonably infer that the defendant was angry at being barred from his marital home. In order to reach that inference they would have to know that he was barred from the marital home . . . .

See State v. Silva, 378 N.J. Super. 321, 327-28 (App. Div. 2005). The rule of Chenique-Puey cannot be seen to apply without exception regardless of particular circumstances. Here, the restraining order had much less to do with bolstering the State's case on the terroristic threats charge, as in CheniquePuey, than its capacity to establish intent or motive in respect of the homicide charges, especially in the light of defendant's assertion that the victim had committed suicide. The trial court's repeated and well-crafted limiting instructions protected defendant from improper use by the jury of the evidence regarding the restraining order. But see State v. Lewis, 389 N.J. Super. 409, 416-18 (App. Div.), certif. denied, 190 N.J. 393 (2007).

No basis exists for reversing the trial judge's denial of defendant's motion for a judgment of acquittal on the terroristic threats charge. Viewing "the evidence . . . in its entirety and giving the State the benefit of all its favorable testimony and all of the favorable inferences" that could be drawn from that evidence, ample basis existed in the record from which the "jury could properly find beyond a reasonable doubt that the defendant was guilty of the crime charged." State v. Moffa, 42 N.J. 258, 263 (1964); see also State v. Martin, 119 N.J. 2, 8 (1990); State v. Brown, 80 N.J. 587, 592 (1979).

We likewise reject defendant's arguments, raised for the first time on appeal, that the jury charge on burglary was erroneous in that it was not properly tailored and failed to inform the jury specifically that violation of a domestic violence restraining order does not establish one of the essential predicates for the crime of burglary. We do not read the record as containing the flaws on which these arguments are premised.

Defendant's arguments regarding prosecutorial misconduct during cross-examination of defendant's psychiatric expert and in summation are also lacking in merit. The trial judge was appropriately proactive in correcting and remedying the use of improper terminology in cross-examination. The statements in summation of which defendant complains were in the category of fair comment on the record. Defendant was adequately protected from the jury's undue reliance on such statements by the court's standard instructions that the attorneys' summations were not evidence and that the jury's recollection and evaluation of the evidence controlled.

Defendant argues, also for the first time on appeal, that the trial court erred in allowing the jury to consider the charge of aggravated assault rather than limiting the jury's consideration to attempted aggravated assault. Defendant contends that the injuries inflicted on Lana on January 19, 2002, were not, as a matter of law, sufficiently grave to satisfy the serious injury predicate for a charge of aggravated assault; and, consequently, that the only crime that could validly be considered was attempted aggravated assault. See State v. Kane, 335 N.J. Super. 391, 398-99 (App. Div. 2000); State v. Green, 318 N.J. Super. 361, 371 (App. Div. 1999), aff'd o.b., 163 N.J. 140 (2000). The broken nose and laceration incurred here were similar to those depicted in Kane and Green, respectively, and, in each case discretely, regarded as insufficiently grave to support a determination that an aggravated assault as defined by N.J.S.A. 2C:12-1b(1) had occurred. Nevertheless, given the combination of injuries, the general bruising, the extensive bleeding, and the resulting scar that were depicted here, we decline to view the trial judge's evaluation in this case to have been a misapplication of the discretion reposed in trial courts to interpret and apply the statutory standard. With due deference to the discretionary exercise, we reject defendant's argument in this regard, as we do his argument that plain error eventuated from the use of photographs of the injuries inflicted on the victim on January 19, 2002.

Defendant does not take issue, directly, with the trial court's rejection, on excited utterance grounds, of defendant's pre-trial motion to exclude the testimony of the police officers who responded to the scene on January 19, 2002, regarding Lana's statements to them. Rather, he argues that the testimony of Lana's stepsister, who defendant also struck at the time, should have been excluded in respect of statements Lana made to her. We discern no error, plain or otherwise, in the admission of that testimony.

No error was committed by the trial court, either, in allowing the State, on cross-examination of a defense witness, a treating emergency room physician, to elicit hearsay testimony (the statements of Lana, his patient) expanding upon his testimony regarding a suicide attempt by Lana on February 10, 1999. The cross-examination was properly allowed on the basis articulated by the trial judge, that defendant had "opened the door" to the subject. Moreover, defendant was protected from improper use of the hearsay evidence by the judge's limiting instruction to the jury.

A closer question is presented by the permitted use of Lana's statements (hearsay) in the cross-examination of defendant's psychiatric expert who testified on direct examination, inter alia, that because Lana had once before attempted suicide, in 1999, she was at greater risk for suicide subsequently, on March 3, 2002, the date of her death. To challenge that conclusion, the State introduced statements concerning the 1999 incident that Lana had made on January 19, 2002, to the municipal court judge who, by telephone, considered her application for a TRO. In dealing with a defense objection, the trial judge, after determining that the testifying expert, in formulating his opinion, had reviewed the transcript of the telephone conversation between Lana and the municipal court judge, permitted the prosecutor to question the expert regarding a certain portion of the transcript. Following the ensuing colloquy, the pertinent excerpt from the audio tape of the conversation was played for the jury. Defendant had objected initially to this proffer, but entered into a stipulation with the State identifying the contents of the taped excerpt.

We accept defendant's argument that the trial court's rulings allowing the line of inquiry and permitting the tape to be played for the jury nominally violated the Sixth Amendment Confrontation Clause standard established in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed. 2d 177 (2004). As a general rule, the testimonial statement of an absent witness offered for its truth may not be admitted against an accused in a criminal trial unless the declarant is unavailable and the defendant has had a prior opportunity to cross-examine the declarant. See id. at 50-59, 124 S.Ct. at 1363-69, 158 L.Ed. 2d at 192-97. It is immaterial whether the statement qualifies as an exception to the hearsay rule. See id. at 61-62, 124 S.Ct. at 1370, 158 L.Ed. 2d at 199.

It is beyond question that the statement to the municipal judge was testimonial evidence under the Crawford rule. See id. at 68, 124 S.Ct. at 1374, 158 L.Ed. 2d at 203; see also Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 2273, 165 L.Ed. 2d 224, 237 (2006). The statement was not essential to the resolution of an emergency that existed at the time it was made; rather, it was an effort "to learn . . . what had happened in the past." Id. at 827, 126 S.Ct. at 2276, 165 L.Ed. 2d at 240.

Nevertheless, the State was entitled to use hearsay statements relied upon by the expert to expose, as fully as possible, the bases for his opinion. See N.J.R.E. 705; Day v. Lorenc, 296 N.J. Super. 262, 267 (App. Div. 1996). Also, as we have previously noted, the trial judge's limiting instruction aided the jury in understanding how such evidence might be properly used and in eliminating the possibility that it would unduly influence the jury, in the N.J.R.E. 404(b) sense, as the jury considered the crimes charged. See also State v. Farthing, 331 N.J. Super. 58, 77 (App. Div.), certif. denied, 165 N.J. 530 (2000).

Even though no error can be assigned to the ruling regarding the scope of the State's cross-examination of the expert, the use of the hearsay evidence on cross-examination did not render the evidence itself admissible. See State v. Raso, 321 N.J. Super. 5, 16 (App. Div.), certif. denied, 161 N.J. 332 (1999). Yet, erroneous admission of testimonial hearsay in violation of the Confrontation Clause is "simply an error in the trial process itself . . . [that may be] affirm[ed] if the error was harmless." United States v. Jimenez, 513 F.3d 62, 78 (3d Cir. 2008) (quoting United States v. Hinton, 423 F.3d 355, 361-62 (3d Cir. 2005) (internal quotation marks omitted), cert. denied, sub nom. Abreu v. United States, ___ U.S. ___, 128 S.Ct. 2460, 171 L.Ed. 2d 233 (2008). We regard the taped statement, itself, to have been cumulative in respect of the evidence already offered through the examination and cross-examination of the treating physician and the psychiatric expert. Its erroneous admission was harmless error. Similarly, the testimony of the State's rebuttal witness was also cumulative in the same sense, and any error that may have resulted from its admission was also harmless.

Finally, defendant argues, also for the first time on appeal, that the single isolated remark in the transcript of the trial judge's instructions to the jury, "It's the quantity of the evidence, not simply the number of witnesses that control" (emphasis supplied), improperly diluted the State's burden of proving its case beyond a reasonable doubt. Such an instruction, if given as depicted in the transcript, would have been manifestly incorrect, though not necessarily reversible error. Because the text as given is a single instance in a lengthy jury charge replete with accurate and carefully drawn, correct references to and descriptions of the State's burden of proof, we take this fleeting reference to have been either a slip of the tongue by the judge or an erroneous transcription by the court reporter. Our analysis of the record with the jury charge taken as a whole, see State v. Wilbely, 63 N.J. 420, 422 (1973), leads us to conclude that the jury was well-instructed regarding the State's burden of proof and could not have been under any misapprehensions in that regard. See State v. Gartland, 149 N.J. 456, 473 (1997). The lack of an objection at the time is a serious omission, for, if an objection had been lodged, the trial court would have had an opportunity to remedy any error in the instruction before the case went to the jury. See R. 1:7-2; Vartenissian v. Food Haulers, Inc., 193 N.J. Super. 603, 609-10 (App. Div. 1984); State v. Harper, 128 N.J. Super. 270, 277 (App. Div.), certif. denied, 65 N.J. 574 (1974); Grammas v. Colasurdo, 48 N.J. Super. 543, 548 (App. Div. 1958).

To the extent we have not dealt specifically with other issues advanced in the appeal, we have determined them to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

20080828

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