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State v. Behn

January 26, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MICHAEL S. BEHN, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 95-09-1202.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 14, 2008

Before Judges Stern, A. A. Rodríguez and Collester.

Tried to a jury in 2006, defendant was convicted of purposeful or knowing murder, contrary to N.J.S.A. 2C:11-3(a)(1) and (2) (count one); felony murder, contrary to N.J.S.A. 2C:11-3(a)(1) and (2) (count two); and armed robbery, contrary to N.J.S.A. 2C:15-1 (count three). After merging felony murder into the purposeful murder count of the indictment, Judge Jane B. Cantor sentenced defendant to consecutive sentences of life with thirty years before parole eligibility for the murder and twelve years for the robbery.

The 2006 convictions and sentence resulted from a re-trial following a 1997 capital murder case where defendant was found guilty of capital murder and armed robbery. Defendant did not receive the death penalty because the jury deadlocked on the question of whether he committed the murder by his own conduct. N.J.S.A. 2C:11-3(c). Instead he was sentenced to life imprisonment with thirty years parole ineligibility for the murder conviction and a consecutive fifteen-year term for armed robbery. We affirmed on direct appeal, stating in part that "the evidence, though circumstantial and subject to differing views by reasonable jurors, was sufficient to prove guilt beyond a reasonable doubt if the jury drew all of the available inferences in favor of the prosecution." State v. Behn, Docket No. A-6805-99T2, slip op. at 10. The Supreme Court denied defendant's petition for certification. State v. Behn, certif. denied, 164 N.J. 561 (2000).

In 2002, defendant petitioned for post-conviction relief (PCR) and for a new trial based on newly discovered evidence.

After denial by the trial court, defendant appealed. In 2005 we reversed and remanded for a new trial. State v. Behn, 375 N.J. Super. 409 (App. Div.), certif. denied, 183 N.J. 591 (2005).

Our holding centered on the unrebutted testimony by Charles Peters, the State's expert witness at the first trial on lead bullet analysis, the lead in fragments recovered from the victim, and lead found in a "brick" of cartridges found in defendant's apartment which were "analytically indistinguishable," that is, they came from the same box of bullets or from other boxes manufactured by the Federal Cartridge Company on the same day from the same sources of lead. We found that defendant on PCR produced new scientific evidence which did not exist at the time of trial and directly refuted Peters' testimony. Therefore, we determined that the new evidence "probably would have affected the jury's verdict," mandating a new trial. Id. at 427-33. Following his subsequent 2006 conviction and sentence after retrial, defendant filed a timely notice of appeal.

On the evening of July 19, 1995, Robert Rose was murdered at the site of his business known as "Renrob Coins," located on Main Street in South River. Rose was a rare coin dealer who purchased and sold coins of differing values. He was a fifty-one-year-old asthmatic who weighed about 350 pounds. He was married to Renee Rose and had three sons, Alan, Scott and Jeffrey, who lived with him and his wife in the summer of 1995. Renee worked at Renrob two or three days a week doing paperwork and answering phones. Alan worked with his father at weekend coin shows and was familiar with the business. Scott often visited the office. Jeffery was not involved in the family business.

In 1995 the coin industry was suffering an economic downturn, and Renrob was experiencing financial difficulties. Rose owed $60,000 plus interest on a 1994 loan from Kenneth Mark Goldman, an out-of-state coin dealer. However, according to Alan Rose, his father was involved in two potentially profitable coin deals in July 1995, one to a fireman named Tony Calabrese, and the second was to a person whose name Alan never heard.

Scott Rose testified that during dinner at home on July 18, 1995, his father excitedly described a potentially high-priced coin sale to a customer named "Mike." Rose told the family that "Mike" was receiving a large inheritance from his grandfather and wanted to buy about $30,000 in coins. Rose said he put aside coins for the transaction, which was to take place the next day at Renrob.

The Renrob office had two rooms. The larger one had two desks, and the other, a smaller room, contained two safes. The larger safe was further from the door and had an inner bottom safe with a combination lock. In the upper part of that safe, Rose kept less valuable coins, which were often not graded. Rose kept Renrob's most valuable and graded coins in the other, smaller safe with bank bags of cash. That safe also had coins Rose held for clients on consignment from other dealers. The smaller second safe was locked. Since Rose was security conscious, he "had nothing but the best" in security devices. Panic buttons and motion detectors were located near the desks and safes. Alarms were in the office and on the safes in addition to a silent alarm.

At about 3:00 p.m. on July 19, 1995, the day of Rose's murder, James French and his girlfriend, Leah Garrett, arrived for their appointment at Renrob to sell some coins and to look through Rose's inventory. French was an avid coin collector and coin dealer and had known Rose and his family for four or five years. He and Garrett came to Renrob at least once a month and visited Rose at weekend coin shows. They had planned to leave by 5:00 p.m., but Rose wanted to show them some special encapsulated coins he had put aside for "a client." He took French and Garrett into the back room and showed them the coins that he had put aside. One of the coins was a flying eagle penny that was in very good condition. Rose said it was worth $20,000 because there were only three or four of them in the world in good condition.

After French and Garrett left Renrob, Rose went home to have dinner with the family between 6:10 and 6:30 p.m. Renee testified that Rose said he was "anticipating a big sale." Alan said that between 7:30 and 7:45 p.m., Rose left to go back to Renrob to meet someone who was going to sell him some coins. Scott told police that Rose said it was a "first-time customer."

Rose called Scott at 8:05 p.m. to say that he had arrived safely and told Scott to forward all business calls to the office. At approximately 9:25 p.m., Scott called Rose, who said that he would be home around 10:30 p.m. When he did not come home by that time, Scott began to worry. He called Renrob several times but got no answer. Renee also called Renrob with the same results. Scott and Renee took the extra set of office keys and drove to Renrob, arriving at approximately 11:15 p.m. Scott first drove to the rear of the building to check out the parking lot. He then drove to the front of the building and parked on the street behind Rose's car. As they were about to unlock the front door and enter the building, Scott noticed through the glass of the front door that the inner vestibule door was ajar. This vestibule door led to a lighted hallway, and Renrob's front office door was the last doorway at the end of the hallway. They knew that Rose always kept the vestibule door shut and locked when he worked at night. Most of Renrob's patrons made appointments before visiting, and Rose made it a habit to ask visitors to identify themselves before he would open that door. Scott and his mother became alarmed. They drove to the nearest police station to ask officers to conduct a "well check."

Officer John Bouthillette and three other officers followed Renee and Scott back to Renrob, arriving at approximately 11:40 p.m. Rose's car was still parked in front of the building. The lights were on in the rear of the building and the front hallway but not in the vestibule. Scott and Bouthillette opened the outside door and went down the hallway to Renrob's front door. Bouthillette knocked and called Rose's name, but there was no response. When they could not open this door, they went to the back of the building. The metal back door of the building opened from the parking lot to a stairway leading up to a landing and Renrob's back door. Since they had no key to the metal door, the officers jimmied the deadbolt and went up the stairs to Renrob's back door. They unlocked the door and entered the well-lit office just before midnight.

They found Rose lying facedown about five to eight feet from the door. He had suffered extensive trauma to the back of his head near his left ear. Blood had pooled on the floor near his head, and a black-and-white checkered towel or rag lay under his face. His arms were extended along his sides with his palms up, and marks could be seen on each wrist. One of Rose's pants pockets was turned out. The officer observed blood splattered against a nearby couch and end table. The Renrob office was in total disarray; bags, boxes, buckets and barrels containing hundreds of coins were everywhere. Desks were strewn with papers and coin books. The larger safe was open. A bag of coins rested on a chair near Rose's body. A set of keys was in the deadbolt on the inside of Renrob's front door. Police officers thought the office had been ransacked, but Rose's family said the office always "looked like a tornado had blown through," but that Rose knew exactly where things were. Shortly after midnight, investigators rolled Rose over and a set of keys fell out of his shirt pocket. He was wearing some jewelry and still had $81 and change in one of his pockets. According to son Alan, Rose usually kept between $1,000 and $3,000 in cash at Renrob. None was found.

The police searched the building and surrounding areas. The ID officers took photographs and collected evidence at the scene. They dusted the safes and all of the doors and doorways in the building for fingerprints, but found nothing evidential.

They found no footprints, fingerprints, or any trace evidence such as hair or fibers. There was no gun nor any shell casings found. No blood was observed in the hallway or on any door handles.

The medical examiner conducted an autopsy and found that four bullets had been fired into Rose's head with no signs of any exit wounds. He recovered six deformed bullet fragments. He testified that the bullets had entered through the left temple and back left side. Each wound was angled slightly upwards about an inch or two, leading the medical examiner to opine that the murder weapon was tilting up when fired. Since there was no stippling of gunpowder residue, he concluded that the wounds were not contact wounds. He found bruises on Rose's face which he concluded were caused when Rose fell on the floor after being shot. He also observed fading reddish marks in parallel grooves on the right and left wrists, which he opined were caused by some kind of restraint, probably handcuffs. Finally, he concluded that the time of death was between 9:30 p.m. and 10:30 p.m.

Sergeant Ronald Kushner and Detective Sergeant Joseph Kolakowski were assigned to investigate the homicide. They learned from Renee that Rose made an evening appointment the night of the murder to look at coins owned by a first-time client whose name she did not know. She also told them about a man named Mike, who had sold Rose some coins on July 11 and was paid by check. Renee said Mike had been in Renrob before, including the day before the murder at about 11:30 a.m. when Rose showed him some "slab coins." Renee left Renrob shortly after Mike arrived, and she saw a new shiny Sable or Taurus in the parking lot. At trial she identified "Mike" as defendant.

Based on their interviews with the family and coin dealers, Kushner and Kolakowski decided to check out a man named Michael Behn. A motor vehicle records search turned up two Michael Behns in New Jersey; one in Maplewood and the other in Middlesex. Further investigation revealed that the Middlesex Michael Behn had no criminal record, held weapons permits, and owed $3,300 in credit card debt.

Meanwhile, Alan Rose tried to prepare an inventory of Renrob's most valuable coins. Out-of-state coin dealers and collectors contacted Alan and the police with their lists of coins Rose purchased or held for them on consignment. Kenneth Mark Goldman said that he had given Rose twenty coins worth approximately $20,000 for sale on consignment in June 1995. Michael McGowan said that he had given Rose an 1858 flying eagle penny for sale on consignment in June or July 1995, and later sold it to Rose for $12,000.

Alan's final inventory revealed that nineteen coins worth $138,275 had been stolen from Renrob including five belonging to Goldman and the flying eagle penny received from McGowan. In going through the entire safe, Alan found two boxes of better coins and two books of coin sets were also missing. Moreover, there were no gold coins in the safe even though an invoice showed Rose was holding two gold coins on consignment as of July 16, 1995.

On July 28, 1995, Kushner and Kolakowski went to defendant's listed address on Hallock Street in Middlesex to interview him. Defendant invited them inside after they identified themselves, and they told him that they wanted to discuss the murder of a South River coin dealer. Defendant responded to all of the investigators' questions. He said he sold some of his grandfather's coins at Renrob three weeks earlier on July 11 for $1,500 and had never been in Renrob at any other time. However, a few minutes later defendant said that he had been at Renrob a couple of days before that sale in order to get coins appraised. He said Rose had tried to sell him some coins at that time, but he was not been interested because he had lost money on coins he had purchased. He told the officers he was self-employed selling car-cleaning products. The interview lasted fifteen to twenty minutes. Defendant asked no questions during the interview and he appeared calm until his mother arrived, when he became noticeably nervous and his leg started to shake.

As Officers Kushner and Kolakowski were leaving, Kushner said to defendant, "I'm really lucky you were the Michael Behn that we were looking for, that had that transaction because you saved us a trip to Maplewood." Defendant replied, "I guess I'm not so lucky you found me." Both Kushner and Kolakowski thought it an odd comment, but they did not pursue it.

A few hours later, Kushner and Kolakowski returned to the apartment. Defendant's mother told them that defendant was not in and that he actually lived with his girlfriend, Kim D'Alessio. The officers left a message for defendant, who contacted them a short while later. They asked him to come to police headquarters. When he arrived, he asked if he needed an attorney. The officers told him that he could call one if he so desired. He then asked whether he was obligated to answer their questions, and they said he could leave at any time. Defendant said he was living with D'Alessio in an apartment in Piscataway, but he used a room in his mother's apartment as an office. He told investigators that he owned a Ford Bronco and a Pontiac 6000. He said he owned coins worth about $12,000 and that he bought the majority from Robert Minichino, the owner of Central Jersey Rare Coins in Bound Brook.

When the investigators asked him about guns, defendant said that he owned a 9mm pistol, a.44 Magnum handgun and a Mossberg shotgun. He added that he had owned a single-bolt action.22 caliber rifle as a teenager, but claimed that he had given that gun away years before. Defendant did not tell the investigators he once owned a.22 Marlin Papoose rifle or that he had just sold six coins - which were not listed as missing from Renrob - to Richard Alan Nixon of Washington Rock Rare Coins in Cranford. Nixon later testified that he had given defendant a $1,570 check on July 28, 1995, for the purchase of six coins, three English proof gold sovereigns, and three $20 gold pieces. He had never dealt with defendant before or since.

Kushner left the interview room to apply for a search warrant. Defendant told Kolakowski his coin collection was in a safe in his office on Hallock Street, and he gave Kolakowski the combination. He also told Kolakowski that he had visited Renrob on four occasions, not twice as he had previously stated. He said the first time was to get his grandfather's coins appraised, and the second was when he returned on July 11 to sell them to Rose. He added that he returned a day or two later to have Rose appraise his entire collection, but that Rose was not there. He said his last visit was to tell Rose that he wanted to buy a lot of coins because he was getting a large inheritance.

When police executed a search warrant on defendant's office, guns and ammunition were found including a "brick" of 500 Federal Lightning.22 long-rifle high-velocity shells with one box of fifty rounds missing. In a box on defendant's dresser police found a set of closed handcuffs without a key. The handcuffs were later tested for trace evidence, but the tests were negative. Many of the coins seized by police from defendant's office matched coins Alan Rose had listed on his inventory as missing from Renrob.

On a bulletin board police found a sales receipt for the brick of Federal Lightning.22 long-rifle high-velocity shells and a sales receipt from Ray's Sporting Goods dated November 17, 1994, for a.22 caliber Marlin 70-P Papoose rifle with an eighteen-inch barrel. Stapled to the receipt for the Marlin was a Watchung police report stating the Martin rifle was stolen the day after its purchase from the defendant's Bronco parked in a Sears parking lot. At trial, Patrolman Timothy Hale of the Watchung Police Department testified that he had responded to the Sears parking lot on November 18, 1994 to investigate defendant's report of the theft. The officer found no signs of forced entry. Defendant told him that the thieves entered the Bronco through an open passenger-side vent window.

Defendant was taken to police headquarters after the search and placed under arrest. As defendant was being led out of the conference room, he told Kushner for the first time that he purchased $40,000 in coins from Rose at noon on the day of the murder.

In the course of their continuing investigation, police found that defendant had rented a Ford Taurus the day before Rose's murder and returned it the day after. Police searched the rental car for trace evidence without success. Investigators later learned that in early July 1995, defendant had taken his Ford Bronco to a garage in Piscataway for repairs, and the car was there for two weeks before defendant picked it up on July 26.

Kushner and Kolakowski interviewed Minichino, the coin dealer from whom defendant said he had bought most of his coins. Minichino told them defendant had visited him two to four times a week between August and December 1994, and bought $10,000 to $15,000 worth of coins. His purchases were small at first, but he then began to purchase more expensive coins. Minichino said he and defendant became friendly. During one of their conversations, Minichino talked about his alarm system, which included cameras but no video recorders.

In December 1994, defendant told Minichino that he would be inheriting a million dollars from his grandfather in a few months, and he asked Minichino to set aside $50,000 in coins. Hoping to increase the amount of the deal and knowing that defendant was talking to other dealers, Minichino had set aside coins worth about $150,325. In April 1995, defendant visited the store and told Minichino his grandfather died. He asked to see the coins Minichino set aside. Minichino got the coins from his safe, and defendant began making a list. Because the store was very busy, Minichino took the coins away and said that he would write a list over the weekend. When defendant returned to the store, Minichino gave him the list, but defendant asked to see the coins. Minichino said he felt uncomfortable and told defendant the coins were in the bank across the street and that defendant could see them when he brought the money. Defendant never returned or contacted Minichino again.

Kushner and Kolakowski next interviewed Robert Hooker of Stonehouse Coin Shop in Scotch Plains. Hooker said defendant told him he would soon be receiving some money and was interested in a penny set Hooker was selling on consignment for $41,600. Defendant said he wanted to pay cash to avoid sales tax but Hooker refused to accept cash. While negotiating the sale, Hooker put the set in a bank vault. Defendant was arrested before completing that purchase.

The investigators discovered that defendant was claiming an alibi, namely, that he was with his friend Stephen Hertneck at the time of the murder on July 19. However, Hertneck was adamant during the officers' interview and later at trial that he had met defendant on Thursday, July 20, and not Wednesday, July 19. He said that he and defendant planned to go out together on July 19 to a go-go bar or to a local festival, but defendant had called around 8:45 p.m. that evening to cancel and postpone until the next night because he was too tired. Hertneck said he met defendant the following night, July 20, at 10:40 p.m. and they went barhopping. Hertneck noticed defendant was driving a silver Ford Taurus. Hertneck said at trial he was sure he met defendant on Thursday, July 20, rather than Wednesday, July 19, because Wednesday night was "trash night." On cross-examination, however, Hertneck said that Thursday night was when he put out the trash before garbage day on Friday.

The State called four expert witnesses. Randolph Toth, a firearms examiner in the Ballistics Unit with the State Police, qualified as an expert in ballistics identification. He examined the fragments taken from the victim's head and said four identifiable fragments were consistent with.22 long-rifle caliber bullets. He said these four fragments had rifling characteristics of sixteen lands and sixteen grooves with a right-hand twist. Test firings led Toth to opine that the fragments had been discharged from the same weapon. Based on his comparisons of those fragments with the known qualities of discharged ammunition, Toth ascertained that the fragments could have only been discharged from either a.22 caliber Jennings pistol or a.22 caliber Marlin rifle.

George Krivosta, supervising forensic scientist of the Firearms Unit of the Suffolk County Crime Laboratory, examined the six fragments from Rose's head and found that four were originally components of.22 caliber long-rifle cartridges. He agreed with Toth that these had sixteen lands and sixteen grooves with a right-hand twist, and he found that the width measurements of those lands and grooves were very narrow. He opined that two of the fragments had been fired from the same weapon "to the exclusion of any other weapon ever manufactured." He then compared the land-width measurements to those in a database maintained by the FBI and determined that the fragments had both been fired from a rifle that was manufactured by the Marlin Firearms Company. Krivosta said that Marlin made millions of weapons and over eighty-five brands of rifles that made sixteen lands and sixteen grooves with a right-hand twist.

Peter DeForest was qualified as an expert in criminology and forensic science. He examined the crime scene and autopsy photographs to see if he could form an opinion as to the cause of the marks on Rose's wrists. He analyzed the handcuffs taken from defendant's office along with a couple of exemplar sets of the same design, and he concluded that the marks on Rose's wrist of "two parallel lines with a uniform gap between them" had been made by handcuffs with the same general design as defendant's handcuffs and the exemplar sets. However, he could not tell whether the ...


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