January 26, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MICHAEL S. BEHN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 95-09-1202.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 marks had been made by a particular set of handcuffs and acknowledged that no hair, blood, skin or other tissue was found on defendant's handcuffs.
DeForest further compared the ammunition found in defendant's closet and the bullet fragments from Rose's head. He test-fired four of the bullets seized at defendant's office from a Marlin 70-P Papoose.22 long semi-automatic rifle and opined that the test-fired bullets and the recovered fragments had the same general class characteristics, which were consistent with defendant's Federal.22 caliber long-rifle bullets. However, he also acknowledged that he had not tested bullets from any other manufacturer, that.22 caliber bullets were "the most commonly manufactured" and "highest volume" of bullet sales, and that he had not tested other Marlins or other weapons that made the same rifling characteristics.
Finally, the State presented Thomas Lesniak, a senior forensic scientist with the State Police who had particular expertise in the area of trace evidence. Lesniak tested the handcuffs belonging to defendant, fingernail scrapings from Rose's left and right hands, and Rose's shirt and pants for trace evidence, but found none. He also examined a towel recovered at the scene, and had found lead residue present in six holes. Lesniak opined that the six holes in the towel were contact shots, which would occur when the muzzle of a gun touched a cloth.
Defendant testified and admitted buying a.22 Marlin Papoose rifle and a brick of Federal Lightning.22 Long Rifles bullets on November 17, 1994. He said he bought the gun for target shooting and that it had been wrapped in green plastic because the store did not have a case that fit properly. He said he took the bullets to the shooting range that same day and had shot off one box of fifty bullets. He claimed that the next day, November 18, he was returning to the gun store to have the Marlin measured for a case but stopped at Sears to replace one of his tools. When he had returned to his Bronco about fifteen minutes later, he found his toolbox missing from the front seat and the Marlin missing from the floor of the back seat. He then called the police to report the theft. He said patrolman Hale had responded and later wrote a police report, which defendant put up on the bulletin board in his office at his mother's apartment. He also admitted owning the handcuffs found in a box in his dresser, saying a friend and former roommate had given them to him when she was moving out of the apartment they shared.
Defendant testified he started investing in coins in 1994 because he had wanted to get rid of approximately $40,000 in cash that he had amassed from family gifts, cash advances on his credit cards, his business, and from plowing driveways and sidewalks. He said he put cash in his safe at his mother's apartment instead of in the bank to avoid reporting it to the IRS.
Defendant first purchased coins in 1994, and by the fall, he had purchased many coins worth a total of $10,000. He said he paid cash for each coin to avoid sales tax and never received a receipt. He testified that he considered the possibility of a large cash sale with Minichino and concocted a story about a million-dollar inheritance so that he would not have to tell Minichino the cash he would be using was money not reported to the IRS. In anticipation of the sale, defendant had looked through Minichino's coins and had put together a list totaling $41,000. Minichino later showed him a list of coins for $150,000. When Minichino said he would accept only a certified check, defendant left and never returned to the shop.
Thereafter, defendant testified he began visiting Hooker's shop where he bought about a dozen coins, and also sold some. Once he saw an Indian head penny set that Hooker had on consignment for sale at $40,000. He asked Hooker if he could buy it with cash to avoid the sales tax. Hooker refused to do a cash deal himself, but said he would try to arrange the sale directly from the owner of the coins. However, Hooker told defendant that even if he could arrange the sale, defendant would still need to pay with a certified check. Defendant said he did not like the idea and decided not go through with the deal.
Defendant testified about his dealings with Rose. When he first went to Renrob in December 1994, he asked Rose if he would do a $40,000 cash deal with no sales tax. Rose refused. Defendant said he returned to Renrob on July 11, 1995 to sell some coins and to ask Rose to reconsider the cash deal. He said Rose gave him a $1,500 check for the coins he purchased and said that he would work on the other deal. Three days later defendant claims he returned to Renrob, and Rose had agreed to go through with the cash sale. They looked through his inventory that Rose had initially put aside, which was worth $30,000. Defendant said he returned to Renrob on July 18, and they added some more coins worth $10,000 to the ones already earmarked for a total purchase of $40,000.
Defendant testified that he had rented the Ford Taurus on July 19. He explained that he had taken his Bronco into the garage for repairs and that his Pontiac, although drivable, had been giving him a lot of trouble. Since he wanted to take the cash to Rose, he rented the car on the morning of July 19.
According to defendant he saw Rose on July 19 and purchased the coins. He put $40,000 cash in a plastic bag and left his mother's apartment at about 4:00 p.m. to drive the Taurus to Renrob and arrived at about 4:30 p.m. He parked in the parking lot and went up the back stairs. But he did not knock on the Renrob door because he heard other people in the office with Rose. Instead, he went back to the car, waited awhile, drove to a nearby 7-11 and called Rose. He said he went back to Renrob at about 5:00 p.m., went into the office after Rose answered the back door and gave him the money. He said Rose counted it and then gave defendant a box of about twenty coins. After inspecting the coins and making sure that they were the ones that were set aside for him, defendant said he left at about 5:20 p.m. He added that Rose did not give defendant a receipt since part of the deal was for him to avoid the sales tax.
Defendant testified that after his purchase, he drove to his mother's apartment and put the coins in his safe. He then called his girlfriend D'Alessio to see what kind of pizzas she and her friends wanted him to bring to a friend's apartment. Defendant said he picked up the pizzas, arrived at the friend's apartment at about 6:30 p.m., and stayed until approximately 8:00 p.m. He then went to his Piscataway apartment, arriving at about 8:30 p.m., and called Hertneck to confirm their plans to meet at 10:00 p.m. that evening. At about 9:00 p.m., defendant went to his mother's apartment to walk his dog. When he returned, he went into his office and fell asleep for about twenty or twenty-five minutes. Later he left in the Taurus and met Hertneck at a local go-go bar at about 10:30 p.m. They stayed about thirty minutes, but it was so crowded that they left to go to another bar where they stayed for about an hour. Defendant claimed that he got home around midnight. He was adamant that he was with D'Alessio on the following evening of July 20, and not out barhopping with Hertneck. He said he had dinner with D'Alessio on the evening of the 20th at their apartment, went to a mall about 7:00 p.m., and returned home for the night.
Defendant admitted that he never told Kushner and Kolakowski, during their first interview on July 28, that he had seen Rose on July 19 to purchase some coins. He said he had not heard about Rose's death before the officers told him. He testified that he only wanted to hide the cash deal and the officers said they were only interested in his July 11 visit. He maintained he was not nervous when talking to the officers and had been only joking with them when he made his comment about being "unlucky." He said he did not mind when the officers came to search his office. He gave them the combination to his safe and unlocked his file cabinets. Defendant claimed that after the search, the officers accused him of killing Rose and telling him that they had found blood on the coins that he had gotten from Renrob. He denied killing Rose and told them he had bought the coins for $40,000 in cash.
On cross-examination, defendant claimed that the person who had stolen his Marlin and toolbox out of his Bronco had not taken the used box of ammunition that he had placed the night before in the unlocked storage compartment between the front seats and that he never told Patrolman Hale about the ammunition. Defendant also explained that he had taken $20,000 in cash advances against his business credit cards instead of using a large amount of cash in his safe. He said that he was hiding the cash that he had made from his businesses, using cash advances from credit cards so that he could show business losses, and laundering the cash by purchasing coins. But defendant then admitted that he had received a notice on July 5, 1995, that his car insurance would be cancelled if he did not pay immediately, and a notice from his bank on July 11, 1995, that one of his checks had bounced.
Kim D'Alessio testified for the defense that she met defendant in 1987 and started living with him in 1994. She corroborated his account that he had brought her and her friends pizza on July 19 about 6:00 p.m. at her friend's house. He ate dinner with them and then had left at about 8:00 p.m. to go out with Hertneck and came home at about midnight. She said that the following day she and defendant went to a mall in her car after making dinner since defendant had returned the rental car. She added that they got home from the mall at about 8:00 p.m. and did not go out again. D'Alessio further testified that she saw large amounts of cash in defendant's safe. She knew that he was a coin collector, but said he never told her that he was trying to purchase between $40,000 and $150,000 worth of coins.
Delores Behn, defendant's mother, substantially corroborated the defendant's testimony regarding his early evening whereabouts on the night of the murder. John Charles Prushinski, was a private investigator and retired lieutenant of the Woodbridge Police Department, testified that he had traveled the routes between Renrob and defendant's office in three different traffic patterns and was able to corroborate the time defendant had arrived at his mother's apartment on July 19. Prushinski also examined defendant's Ford Bronco and reenacted the theft of defendant's Marlin rifle and toolbox and said it only took between twelve and fourteen seconds to gain access to the inside compartment of the Bronco.
Dr. Jacqueline Behn, defendant's sister, testified on the general subject of weapons, as well as on defendant's nonviolent nature, his finances and coin collecting. She was a full-time college professor and had a doctorate in sociology and criminology with special emphasis in social and criminal research. She contacted the National Association of Federally Licensed Firearm Dealers, the FBI, the Bureau of Alcohol, Tobacco and Firearms, and Marlin Firearms, and learned that there were forty-one models of.22 caliber Marlin rifles that produced the same characteristics of sixteen grooves and sixteen lands with a right twist. Meanwhile Jennings Firearms, Bryco Arms and Phoenix Arms made.22 caliber pistols or handguns that also had the same characteristics of sixteen grooves and sixteen lands with a right twist. Since the 1960's, Marlin had manufactured fourteen to seventeen million of those rifles, and from 1992 to 1996, Jennings, Bryco and Phoenix had collectively made about 1.2 million of those pistols. She further testified that FBI statistics between 1992 and 1995 disclosed that 58,119.22 Marlins had been stolen across the country and not recovered, and that 447 of those had been stolen in New Jersey.
William E. Conrad, a private consultant, was qualified by the defense as an expert in firearms and tool-mark identification. He testified that no one could determine with any precision what type of firearm, rifle or pistol, had actually discharged the fragments found by the medical examiner. He opined that he could not exclude any handgun or rifle that had a rifling characteristic of sixteen lands and sixteen grooves inclined to the right.
Nicholas Petraco, who was a forensic consultant for the New York City Police Department's Forensic Investigation Division, was qualified as an expert on criminalistics and trace evidence. He testified that the actual gap of the two metal bars on a handcuff makes a larger gap on a wrist that what was exhibited on Rose's skin. Therefore, he opined that the handcuffs seized from defendant had not caused those marks. Petraco also relied on the fact that defendant's handcuffs had exhibited no trace evidence relevant to the homicide.
On appeal, defendant makes the following arguments:
POINT I - THE TRIAL COURT'S VOIR DIRE OF PROSPECTIVE JURORS WAS INADEQUATE AND DEPRIVED THE DEFENDANT OF HIS RIGHT TO A FAIR AND IMPARTIAL JURY TRIAL.
POINT II - THE EVIDENCE PRESENTED WAS LEGALLY INSUFFICIENT TO SUSTAIN THE DEFENDANT'S CONVICTIONS AND THE COURT ERRED IN DENYING THE DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL.
Defendant argues that the judge's voir dire of prospective jurors was inadequate and deprived him of his right to a fair and impartial jury trial. We disagree.
Under the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Paragraph 10, of the New Jersey Constitution, a criminal defendant is guaranteed a trial by an impartial jury. The scope and choice of questions in a voir dire "rests in the discretion of the trial court limited only by the demands of fairness and justice." State v. Sullivan, 43 N.J. 209, 239 (1964), cert. denied, 382 U.S. 990, 86 S.Ct. 564, 15 L.Ed. 2d 477 (1966). "The nature and variety of questions in hypothetical form designed to insure selection of a jury[,] which will be intelligent, competent and impartial to both State and defense[,] must be left to the good judgment of the trial judge." Id. at 239-40.
At the time of trial it was settled that "[t]he trial judge has broad discretion in formulating voir dire questions. Suggested additional questions by counsel should be considered [by the judge] but need not be asked." State v. Hill, 365 N.J. Super. 463, 468 (App. Div. 2004), rev'd on other grounds, 182 N.J. 532 (2005). That discretion, however, must be exercised to ensure that voir dire is "an effective tool in protecting a defendant's right to an impartial jury." State v. Mejia, 141 N.J. 475, 510-11 (1995), overruled on other grounds, State v. Cooper, 151 N.J. 326 (1997), cert. denied, 528 U.S. 1084, 120 S.Ct. 809, 145 L.Ed. 2d 681 (2000).
We will not disturb the trial judge's exercise of discretion "[a]bsent a showing of abuse." State v. Hunt, 115 N.J. 330, 362-63 (1989). "The burden is on the complaining party to establish that the mode of conducting a voir dire prejudiced him." State v. Morales, 116 N.J. Super. 538, 542, (App. Div. 1971), certif. denied, 60 N.J. 140 (1972).
Prior to jury selection, defense counsel proposed that the following open-ended question about the existence of "prior proceedings" be included in the judge's voir dire:
[NOTE: The defendant believes it is important to know what each potential juror thinks about the fact that there was a prior proceeding, therefore, requests the following questions be asked:]
a. It is anticipated that there will be references to the prior proceedings during the trial. What do you think of the fact that there were prior proceedings in this case?
b. I want to know if because there were prior proceedings in this case you feel that will interfere in anyway [sic] with your ability to consider the facts as they are presented in this courtroom to you during the trial.
c. Do you feel that you have the capability to just consider the evidence as presented in this courtroom without regard what may or may not have occurred in the prior proceeding? [Brackets in original].
Judge Cantor declined to ask the questions as framed; instead she decided to pose a general yes-no question to whether prior proceedings would bias the potential juror. She explained that an open-ended question could result in her losing the entire panel if someone made an improper comment. She therefore decided that she would question a juror only at sidebar if the juror answered the question that he or she knew about the prior proceedings and that it would present a problem. The colloquy went as follows:
THE COURT: Counsel, the only issue I want to draw your attention to, I am not going to ask question five A, what do they think about the fact of prior proceedings. I will ask them whether the prior proceedings will make it difficult to their ability to decide these cases, but what they think about it, I really don't care.
DEFENSE COUNSEL: I kind of do care, Judge, only in the sense if there's a juror sitting in there that says, well, if he's been convicted once before, so, you know, I think that's a problem or something. I want to draw it out what they are actually thinking as opposed to them just being asked a question, well, is there anything about that that would make it impossible for you to sit and to be fair. I mean, that conclusory kind of question and answer is kind of, I think fraught with potential danger in terms of the defense case.
THE COURT: If they come to sidebar I will query about it. I am not going to make an open-ended question. I will lose my panel, one will shout something out that will create a problem for everyone. I will ask if it will interfere with their ability to be fair and impartial if they come to sidebar.
DEFENSE COUNSEL: How will they tell us, they get to sidebar?
THE COURT: Unless they tell us it will be a problem they won't get to sidebar. If they get to sidebar we'll find out what the problem is.
On the first day of jury selection, the judge informed the jurors:
The incident in this case occurred in July, 1995. In 1997 there were proceedings in this case which were a nullity for reasons not relevant to the current proceedings. Therefore, the trial is now occurring.
It's anticipated there might be reference to prior proceedings during the course of this trial. Do any of you feel that because there were prior proceedings that this will interfere in any way in your ability to consider the facts as they are presented to you in the courtroom during this trial?
Does the time or the fact of prior proceedings interfere with your ability?
Do any of you feel that you have the capacity, in other words, do you feel you could listen to the testimony in this case as it's presented in this courtroom without regard to what may or may not have occurred in the prior proceeding?
Is there anyone here who cannot accept the presumption that a person is presumed innocent under our system and that presumption continues throughout the entire trial? In other words, if I were to ask the fourteen of you to go into the jury room which is attached to this courtroom and render a verdict right now, do you know what your verdict would be? It would be not guilty, because a defendant on trial is presumed innocent and that presumption continues throughout the entire trial.
Do any of you have a problem with this presumption?
Is there anyone who cannot accept the fact that the burden of proving a defendant's guilt is on the State, that it remains with the State and that State has to prove the defendant guilty beyond a reasonable doubt, do any of you have a problem with that burden within the system?
None of the jurors answered in the affirmative.
On the second day of jury selection, the judge individually questioned each of these jurors in the presence of the entire venire. The following colloquy occurred with a potential juror who was later excused for reasons unrelated to the prior trial:
THE COURT: This incident occurred in July of 1995. In 1997, there were proceedings in this case, which were a nullity, for reasons not relevant to this proceeding. Therefore, the trial is now occurring. And it is anticipated that there may be reference to the prior proceedings during the course of this trial.
Do you feel because there were prior proceedings, that this will interfere with your ability to consider the facts, as they are presented to you, in the courtroom during this trial?
POTENTIAL JUROR: Without knowing what happened then, I can't really say. So, not knowing the circumstances of whatever happened, how it played out, I can't say.
THE COURT: Do you feel that you have the capacity to just consider the evidence presented in this courtroom, without regard to anything that may have occurred in the prior proceedings?
POTENTIAL JUROR: Yes.
THE COURT: Would you accept the fact that a person is presumed innocent, under our system? That the presumption continues throughout the entire trial?
POTENTIAL JUROR: I take it that jurors have opinions formed throughout the trial. And we do our best -- jurors do their best to resist forming a conclusion.
THE COURT: Exactly. [emphasis added].
Another colloquy occurred with a second potential juror, who was also later excused for other reasons:
THE COURT: This case occurred in 1995. In '97, there was a prior proceeding, which were [sic] a nullity for reasons not relevant to this matter. So, the trial is proceeding now. There may be references to the prior proceedings. Will that impact, in any way, on your ability to consider the facts that are presented during this court proceeding?
POTENTIAL JUROR: No.
THE COURT: Can you accept the presumption of innocence under our system?
POTENTIAL JUROR: Yes.
THE COURT: Can you accept the fact that the burden of proving a defendant's guilty is on the State? They must be prove it beyond a reasonable doubt?
POTENTIAL JUROR: Yes Finally, the judge individually questioned another potential juror who eventually sat on the jury:
THE COURT: This incident occurred in 1995. The proceedings in the matter in 1997 were a nullity. Not relevant to the case. But the fact that there might be prior -- there might be reference to the prior proceedings, do you feel that will interfere with your ability to consider the facts in this case? The facts that are presented?
POTENTIAL JUROR: No.
THE COURT: You can continue without regard to what may or may not have occurred in the first trial?
POTENTIAL JUROR: Yes.
THE COURT: Can you accept the presumption of innocence under our system?
POTENTIAL JUROR: Yes.
THE COURT: Can you accept the fact that the burden of proving the defendant guilty is on the State, and it must be proved beyond a reasonable doubt?
POTENTIAL JUROR: Yes [emphasis added].
At sidebar, the attorneys and the judge discussed her comment about "the first trial":
PROSECUTOR: Your Honor, on another matter. When your Honor was speaking with one of the jurors, when you were asking her questions about the prior proceedings, I heard you say "prior trial" at one point.
DEFENSE COUNSEL: I didn't hear it.
PROSECUTOR: I know that no one reacted. But I just --
THE COURT: I'll try not to use the word again. You know, I try my best to read the words as they are written; but for the life of me, I somehow -- my brain interrupts.
DEFENSE COUNSEL: You do substitute.
THE COURT: I think sometimes my brain just jumps when I am reading. I will try to keep alert as to that.
Defendant argues that he was deprived of a fair trial by Judge Cantor's refusal to ask his proposed open-ended voir dire question because the fact that he had been "previously convicted had the capacity to tip the scales against him and cause one or more juror to vote for his conviction." He argues that the prior proceeding had to have been on the minds of the jurors throughout the trial. He also cites to nineteen specific instances when the prior proceedings were referenced at trial. The critical flaw in defendant's argument is that it assumes that the jury's knowledge of a prior proceeding equates with knowledge that the defendant had been convicted at the prior trial when that fact was never disclosed to the jury. It also ignores the specific instruction given by the judge to jurors that the prior proceedings were not relevant to this trial.
We also understand the concern of the judge that, as proposed by defendant, there was a good possibility that the question could lead the jurors to inquire about the circumstances of the prior proceedings and the reasons for termination of the proceedings, which in turn could have compromised the jury selection process. In any event, the judge individually questioned all potential jurors who showed any possible bias based on knowledge of prior proceedings.
Defendant cites State v. Oakes, 246 N.J. Super. 261, 267 (App. Div. 1991) in favor of his argument. In that case we stated:
We reject the notion that a trial judge should not ask prospective jurors certain questions simply because the answers might be unfavorable or unpleasant to a party. A prompt instruction to the jury on weighing credibility and remaining impartial, tailored if necessary to the particular answer, should usually dissipate any harm resulting from a juror's response which displays or suggests bias. A voir dire designed to explore potential bias is essential to an impartial jury. Only through a thorough voir dire can counsel determine whether to seek disqualification of a person for cause and to make informed decisions in exercising peremptory challenges. [Ibid.]
However, Oakes is clearly distinguishable. There, the trial judge had improperly refused to voir dire the jury on questions requested by the defendant as to whether the jurors would tend to credit police officers' testimony more or less than any other witness and whether they had friends or relatives who had experienced a drug problem. We considered those issues basic to a proper voir dire because the ability of a prospective juror to impartially weigh the credibility of a law enforcement officer was especially required in that case. We found that the voir dire conducted by the trial court was so inadequate as to deny defendant of his constitutional right to a fair trial. Id. at 265-67. A court's exercise of discretion in ruling upon specific inquiry for voir dire examination of jurors will be subject to reversal only if it deprived the defendant of an opportunity for selection of a fair and impartial jury. See State v. Fortin, 178 N.J. 540, 575 (2004). Such was not the case sub judice.
We need mention that in December 2006 the New Jersey Supreme Court issued Administrative Directive #21-06 which requires use of open-ended questions. We held that the new selection standards were "unquestionably binding on all trial courts." See State v. Morales, 390 N.J. Super. 470, 474 (App. Div. 2007).*fn1 The 1996 Directive was issued on December 11, 2006, and took effect on January 22, 2007. Both the 1996 Directive and its effective date were months after defendant's trial. We have therefore considered the effective law as of the time of defendant's trial to conclude that the judge's decision to decline use of defendant's voir dire question was not an abuse of discretion and did not deprive defendant of his right to a fair and impartial jury trial.
Defendant next contends that it was reversible error to deny his motion for acquittal after conclusion of the State's case and following the jury verdict because the evidence presented was legally insufficient to sustain his convictions. He argued following the conclusion of the State's case that, even giving the State the benefit of reasonable inferences, no reasonable jury could conclude beyond a reasonable doubt that defendant was guilty of the crimes charged. Judge Cantor disagreed, stating:
I thought about this during the course of this trial and absent the testimony of the coins in the possession of [defendant] I might agree with you that everything else was so circumstantial that it's hard to put it together. I understand the defense position is that [defendant] bought these coins fair and square, paid cash for them, walked home with them, but I think a reasonable jury could reject that defense and if they reject it then I end up with strong circumstantial evidence of an armed robbery, taking of the coins and a death which is also within -- giving all reasonable inferences to the State within a reasonable jury's verdict. So based on that evidence this Court is going to deny your application.
In support of his motion for acquittal following the jury verdict, defense counsel again argued that even giving the State the benefit of all favorable inferences, the evidence was not sufficient for the jury to find beyond a reasonable doubt that defendant was guilty. Counsel claimed that: (1) defendant's testimony and the testimony of the various witnesses proved that defendant was not present at the time of Rose's murder; (2) the State conceded that defendant's handcuffs were not the handcuffs used to bind Rose; (3) the defense "refuted quite clearly" the State's theory that defendant used his previously stolen rifle to kill Rose, because it "presented very convincing and clear evidence... that the... ballistic evidence established the fact that the bullets could have come in a Marlin rifle, a Bryco, a Phoenix Arms, on and on, a good number of weapons"; (4) defendant "very clearly testified that he had in fact purchased those coins," and there was no evidence to dispute that statement; and (5) French could not have been in Renrob at the time he initially asserted, and "eventually his testimony was broken down as to the time he was there, that he was in at five o'clock, looked at the coins for ten minutes and was out the door."
In response, the prosecutor argued that defendant was using the wrong standard by viewing the evidence in the light most favorable to the defendant and pointing out that the jury chose not to believe each of defendant's factual contentions.
Judge Cantor agreed with the prosecutor:
The facts could go either way. If I sat on this jury, I don't know that I would come back with a verdict, with the verdict this jury did, but there were clear facts from which the jury could have believed and which in fact they did believe to find [defendant] guilty of this robbery and murder.
Although there were questions that you [defendant] raised with regard to the witnesses, the State did a very fine job in putting together [its] case against [defendant], and the jury in fact accepted all the proofs against [defendant] including the rifle, including the question of whether he had the $40,000, including the question as to whether he told anybody that he was going to purchase these coins.
I mean there were questions that the State raised which the jury accepted with regard to this case which was clearly a circumstantial case which the jury found the defendant guilty of. So I have to deny your motion for acquittal.
The test on a motion for acquittal after the State has concluded its case-in-chief was set forth in the classic "holding" or "case" of State v. Reyes, 50 N.J. 454, 458 (1967). The standard according to our Supreme Court is, whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt. [Id. at 458-59.]
If the evidence adduced by the State satisfies that standard, the defense motion must be denied. State v. Spivey, 179 N.J. 229, 236 (2004). If, however, the State has failed to prove any one of the elements of the crimes charged, the motion must be granted. See, e.g., State v. Walker, 322 N.J. Super. 535, 544-45 (App. Div.) (motion granted when State failed to prove that defendant was one of the perpetrators), certif. denied, 162 N.J. 487 (1999); State v. Burke, 362 N.J. Super. 55, 60 (App. Div.) (motion granted when State's proffered proofs did not establish "essential element of offense"), certif. denied, 178 N.J. 374 (2003). Moreover, where the inference to be drawn from the State's case is "so weak in the factual context of the particular case [then] the case should not be submitted to the jury." State v. DiRienzo, 53 N.J. 360, 378 (1969). Of course, the State's right to reasonable inferences in its favor does not reduce the State's overall burden of proving all elements of the offenses charged beyond a reasonable doubt. State v. Martinez, 97 N.J. 567, 572 (1984).
Obviously the evidence adduced by the State was circumstantial in nature, but it is well settled that circumstantial evidence by itself may be sufficient to support a guilty verdict. State v. Franklin, 52 N.J. 386, 406 (1968); State v. Kamienski, 254 N.J. Super. 75, 105 (App. Div.), certif. denied, 130 N.J. 18 (1992). And as we have stated, circumstantial evidence may be "more certain, satisfying and persuasive than direct evidence." State v. Thomas, 256 N.J. Super. 563, 570 (App. Div. 1992), aff'd, 132 N.J. 247 (1993) (quoting State v. Dancyger, 29 N.J. 76, 84, cert. denied, 360 U.S. 903, 79 S.Ct. 1286, 3 L.Ed. 2d 1255 (1959)). Nevertheless, no matter what kind of evidence is presented, the State must prove every element of a criminal offense beyond a reasonable doubt for a conviction. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed. 2d 368, 375 (1970); State v. Gardner, 51 N.J. 444, 459 (1968). Accord N.J.S.A. 2C:1-13(a). Indeed, even an alibi, if the defendant raises it, is a defense that the State has the burden to disprove beyond a reasonable doubt. State v. Green, 86 N.J. 281, 293 (1981).
Applying the Reyes test, we conclude based on a thorough review of the proofs that the evidence presented by the State's various witnesses together with the reasonable inferences that could have been drawn from that evidence, considered in a light most favorable to the State, was sufficient for a reasonable jury to find that the State proved all elements of robbery and felony murder beyond a reasonable doubt. The State presented evidence that defendant had a prior business relationship with Rose, that he went to Renrob on the day of the murder and initially failed to tell the police about that visit. He commented that it was "unlucky" for him that Kushner and Kolakowski had found him. He possessed coins found missing from Renrob after the murder, and he had no receipt or other proof of purchase of the coins. He possessed a set of handcuffs similar to the ones that could have been used on Rose. He owned the same type of gun as the State's experts opined could have been the murder weapon. The State also showed that Officer Hale, who had responded when defendant reported the theft of his gun, saw no signs of a forced entry into defendant's car, and that a brick of bullets remained in the car after the alleged theft of the gun. The State showed that defendant had visited other coin dealers in the area, lied to them about his finances, and stopped patronizing the ones who put their expensive coins in a bank vault. Finally, the State produced the testimony of Hertneck to disprove the defendant's claim of alibi at the time of the murder and robbery.
It is not necessary that every circumstance of fact in a criminal case be consistent with a rational conclusion of the defendant's guilt. State v. Thomas, 132 N.J. 247, 259 (1993); State v. Brown, 80 N.J. 587, 598 (1979). The State is not "obligated to disprove every contingency to sustain its burden." Thomas, supra, 132 N.J. at 259. Thus, it is not fatal to the State's case that speculative circumstances could result in another rational explanation of defendant's conduct or fail to exclude every other conceivable hypothesis except guilt. Brown, supra, 80 N.J. at 598-99. The inescapable fact is that the jury verdict accepted the State's proofs and the credibility of its witnesses and did not believe the testimony of the defendant or his witnesses on the crucial issues giving rise to the guilty verdict.
Our own conclusions are consistent with those of the trial judge. The evidence was sufficient to permit the jury to find guilt beyond a reasonable doubt. Reyes, supra, 50 N.J. at 459. Defendant's motion for acquittal at the end of the State's case and after the jury verdict were properly denied.
The remaining arguments raised by defendant are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).