On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 05-03-00335.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 7, 2009
Before Judges Stern, Waugh and Newman.
Tried to a jury, defendant was found guilty of aggravated manslaughter, armed robbery, conspiracy to commit both of those crimes, and possession of a weapon for an unlawful purpose. The court imposed an aggregate sentence of fifty years' imprisonment. On this appeal defendant argues:
POINT I - THE INADEQUATE JURY INSTRUCTIONS CONSTITUTE PLAIN ERROR. (Not Raised Below)
A. The Trial Court Erred By Charging The Jury As To Aggravated Manslaughter And Reckless Manslaughter.
B. The Trial Court Erred By Not Relating The Law To The Facts Of The Case In Its Jury Instructions.
POINT II - DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL AS TO THE AGGRAVATED MANSLAUGHTER CONVICTION SHOULD HAVE BEEN GRANTED.
POINT III - THE ADMISSION OF OTHER-CRIMES OR "WRONGS" EVIDENCE, THAT DEFENDANT PLOTTED TO KILL HIS WIFE AND STEPDAUGHTER AND WAS "VERY VIOLENT" TO HIS WIFE, AND/OR THE OMISSION OF A LIMITING INSTRUCTION AS TO SAME CONSTITUTES PLAIN ERROR. (Not Raised Below)
POINT IV - THE ADMISSION OF HEARSAY TESTIMONY, REGARDING DEFENDANT'S HAVING THREATENED TO KILL THE DECEDENT, VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHT TO CONFRONTATION AND CONSTITUTES PLAIN ERROR. (Not Raised Below)
POINT V - THE CUMULATIVE ERRORS MANDATE THAT DEFENDANT'S CONVICTIONS BE REVERSED. (Not Raised Below)
POINT VI - DEFENDANT'S SENTENCE MUST BE MODIFIED. (Partially Raised Below)
A. Consecutive Terms Should Not Have Been Imposed. (Not Raised Below)
B. The Conviction For Possession Of A Weapon For An Unlawful Purpose Should Have Merged With The Aggravated Manslaughter And Robbery Convictions.
We find the contentions do not warrant reversal and that only the following discussion is necessary. R. 2:11-3(e)(2). Rather than finding that defendant was prejudiced by any error, we conclude that he may have benefited substantially from the jury charge which may have spared him from a conviction of felony murder.
The homicide and related offenses of which defendant was convicted occurred on September 3, 2003. They were alleged in counts three through seven of the indictment. Before trial counts one and two, relating to a prior burglary at the home of homicide victim Richard ("Pops") Maskevich, and count eight, relating to a conspiracy to kill defendant's wife after the death of Maskevich, were severed for purposes of trial. Evidence relating to these events were admitted at trial, however, as background and relevant to the crimes being tried. The evidence before the jury included the following:
On July 14, 2003, at about midnight, Old Bridge Township police officer Joseph Gougeon was dispatched to investigate a burglary at the Maskevich house. Maskevich was a sixty-eight-year-old retiree who was known to some for selling cocaine and keeping thousands of dollars in his house. According to defendant's wife, Cathy, defendant had sold drugs for at least fifteen years, and had done so with Maskevich. Christine Miller, who had dated defendant's son Robert ("Bobby") Pagliaroli, also testified that defendant sold cocaine.
Cathy testified that she and defendant thought of Maskevich as their father, and he treated them like his children. According to Cathy, defendant had told her that Maskevich had named defendant as beneficiary of his estate and life insurance policies and that Maskevich wanted her and defendant to share the proceeds of Maskevich's estate.
After Cathy and defendant moved from New Jersey to Maine in 1994, she and defendant visited Maskevich frequently. They had their own bedroom in Maskevich's house and had access to the house by way of a key that Maskevich kept under a rock in the driveway. Maskevich regularly treated them, and their friends, to dinners, concerts, and trips to Atlantic City.
Cathy described Maskevich as a "good hearted man" who gave her and defendant anything they needed, including large sums of money. Cathy estimated that, over the years, Maskevich had given or loaned them anywhere from $60,000 to $80,000 and on several occasions Maskevich "bailed [defendant] out of jail."
Maskevich also supplied Cathy with cocaine and marijuana. Ever since Cathy was fifteen years old, she had battled a cocaine addiction. Maskevich often gave Cathy cocaine, and when he did not give it to her for free, she took it from him. Cathy and Miller both testified that defendant had been pressuring Cathy to stop using cocaine, and defendant got angry with her and with Maskevich because of her continued drug use.
In the summer of 2003, defendant took Cathy to meet Agent John Richards of the Maine Drug Enforcement Agency ("DEA") and said "this is what my father-in-law [meaning Maskevich] does to my wife." Defendant asked Richards to take some action to stop Maskevich from supplying Cathy with drugs.
Kathleen Hardy, who had been Maskevich's girlfriend, testified that Maskevich's house had been burglarized often. She recalled six or seven incidents during their relationship, but Maskevich reported only two of those incidents to the police. Similarly, Cathy testified that Maskevich had been "robbed several times through the years." Maskevich had two safes in the house. According to Hardy, Maskevich kept most of his cocaine in the basement safe. She said that Maskevich called it a "dummy safe" because too many people knew about it. That safe showed no signs of damage after the burglary on the night of July 14, 2003. The safe in the living room cabinet was the one that had been burglarized. There were no signs of forced entry to the house.
Detective Scott Crocco, of the Old Bridge Police Department, testified that the safe looked like it had been "hot wired open" because the wires to the keypad were connected together. Cathy testified that defendant had given Maskevich that safe, had installed it for him, and had showed him how to operate it. Maskevich told Crocco that only a couple of people, including defendant and Maskevich's son-in-law, Robert Gareis, knew about that safe and where it was located.
On July 18, 2003, Crocco spoke with April Gareis, Maskevich's daughter, who believed that defendant or Mark Gallucci, another man who had lived in the Maskevich house, probably committed the burglary. However, Maskevich told Detective Crocco that he did not believe that either man committed the burglary and that Gallucci did not know there was a safe in the living room cabinet.
Shortly after the burglary, Maskevich told Crocco that he no longer wanted the police to continue the investigation, and wanted to "settle this on his own." Thus, Crocco closed the investigation.
Maskevich's friend, Hector Bidot, testified that in July and August 2003 Maskevich was robbed "very often [,] on a steady basis." Maskevich believed that the burglar was someone close to him because the burglar was not breaking into the house.
Bidot did not know how much money was taken, but Maskevich told him that on one of the occasions between $30,000 and $40,000 was missing from his house. Bidot helped Maskevich install a new safe in the living room cabinet after the burglary in July.
According to Bidot, Maskevich suspected that defendant was responsible for the burglary. Maskevich had told Bidot that Maskevich had marked his money and that defendant had repaid a debt to Maskevich with the marked bills. Bidot said that once Maskevich suspected defendant, their relationship changed. Bidot recalled one occasion after Maskevich spoke with defendant on the phone, Maskevich told Bidot that defendant "was trying to get his money," defendant had said "he was going to kill [Maskevich], sodomize him and be cruel to him," and that Maskevich didn't "know how cruel I can be."
Cathy testified that sometime between the end of June and middle of July 2003, Maskevich told her that he believed defendant had been robbing him. Initially she did not believe it and told Maskevich that defendant would not do such a thing. But, Cathy testified, she changed her mind after defendant came home one day in late July with "a Corvette and all kinds of money" and then told her during a phone conversation, sometime in July or August 2003 that he had robbed Maskevich. In that conversation, from his friend Richie Piperato's tattoo parlor in South Amboy, New Jersey, defendant told Cathy that he and Delphie ("Dee") Patton, a tattoo artist who defendant employed at his and Cathy's tattoo parlor in Maine, had gone to Maskevich's house, "went in the safe [and] took what they wanted. And then he said he flushed four or five ounces of cocaine down the toilet and left." He said that he did that because "[Maskevich] owed him for all the money [Maskevich] took from" defendant.*fn1
Following this phone conversation, Cathy called Maskevich and told him that defendant had been robbing him and that defendant was at Piperato's tattoo parlor in South Amboy. Maskevich then went to Piperato's and found defendant there. Maskevich was accompanied by Bidot who saw defendant give Maskevich a "stack of bills" which Bidot estimated to be $5,000.
Later that day, defendant called Cathy again "screaming and yelling" at her for telling Maskevich that defendant was at Piperato's tattoo parlor and that defendant had robbed him. Cathy believed that defendant made this second call from Jean Treacy's tattoo parlor, Think Ink, in Linden, New Jersey, and that "Dee" Patton was with him because she heard Dee and Treacy's voices in the background. Treacy was a friend of defendant and Cathy. Defendant told Cathy during this conversation that he had paid Maskevich some money for her drugs. When defendant returned to Maine, Cathy said that he "was really angry" with her and "threw [her] out" of the house, but that she moved back in shortly thereafter.
According to Cathy, after defendant told her that he had robbed Maskevich, Cathy wrote a letter to Maskevich on defendant's behalf because he had poor reading and writing skills. Defendant signed the letter and mailed it to Maskevich. The letter was postmarked August 2, 2003. Cathy testified that the letter began: "I feel very bad for you and all the problems you are having." Cathy believed defendant was referring to the burglaries. It continued:
I may have not told you. I won $45,000 in 6/9/03 [sic]. I used it -- a friend of mine to absorb the taxes because of SSI because I'm not supposed to gamble because I will lose my medical. That's where I got the money for the [Corvette]. I feel really fucked up for you saying I robbed you, your house. Since then I've won more money. Since seeing that you ripped me and my wife's marriage apart and wanted her to revoke my bail for the second time even before your house got robbed, you can go fuck yourself.*fn2
If in any shape, form or way you think I did this to you and tried to . . . hurt me and shape, form or way [sic], your drug world and you will come to an end the second [sic]. Go fuck yourself. Not your friend anymore.
Cathy testified the reference to Maskevich's drug world coming to an end meant that defendant was going to stop supplying Maskevich with cocaine and was going to turn Maskevich in to the DEA.
Other witnesses also testified that Maskevich told them he believed defendant had been robbing him in the summer of 2003 and that Cathy told Maskevich that defendant had been robbing him.
Melissa Rowe, a friend of Cathy and defendant who lived in Maine, testified that around Christmas 2002, she overheard defendant ask Dee to go to New Jersey with him "to get some money off Pops." Rowe further testified that defendant and Cathy had been arguing, and she heard him tell Dee that "the bitch better shut her mouth or, he says, I got an insurance policy on her, I'll take her out."
Rowe said that every time Cathy and defendant visited Maskevich, Maskevich gave them money, "[s]ometimes [$]1,200, sometimes [$]10,000", but that during the summer of 2003, Maskevich refused to give defendant any more money, and their relationship soured. Rowe also testified that in the summer of 2003, defendant was pressuring Cathy to stop using cocaine, but that was because the police were "coming around," and "things were getting hot."
On Wednesday, September 3, 2003, just before 9 p.m., Old Bridge Township police officer Thomas Noble was dispatched to Maskevich's house because his tenant had not seen or heard from him. The doors to the house were locked, so Noble forced open the sliding plexiglass door and went inside. He walked into the master bedroom and found Maskevich lying face-up on the bed with two bullet holes in his head. Based on Maskevich's body temperature, the Medical Examiner determined that he had been dead for about twelve hours before Officer Noble found the body. According to Detective Crocco, the evidence suggested that the shooter had keys to Maskevich's house. There was no damage to the doors or windows, and the basement door, which was the door that people typically used, had been locked from the outside.
Detective John Haley, of the Middlesex County Prosecutor's Office, testified it appeared that the shooter had "search[ed] for something." According to Haley and Crocco, the drop-ceiling tiles in the master bedroom had been "pulled down from the ceiling" and "scattered" on the floor. Crocco further reported that the dresser drawers "were all pulled out." A film canister with what appeared to be cocaine and Maskevich's wallet with only $2 in it were found "on the staircase going to the second level."
It looked to Crocco as if someone had struck the door to the basement safe with a hammer that was found on the floor below the safe. However, the key and a slide bar that opened the safe had not been damaged, and the door was open, thus suggesting that "it could have been opened with a key." Marks on the floor near a furnace that "was not hooked up" suggested that the furnace had been "dragged" to cover or conceal that safe.
The safe in the living room cabinet was locked and did not appear to have been tampered with. Old Bridge Detective John Kanig used a pry bar to open it. Inside was a key to the safe and $37,000.
The police found no fingerprints at the scene, but they did find several footprints inside and outside of the house. Police seized two video tapes from the surveillance system, but there is no evidence in the record as to their content. Police also found a gun in the living room and one in the bedroom, near the foot of the bed. The police never investigated whether the weapons were registered to anyone. .22 caliber projectiles were also found at the scene, and Detective Gary Mayer, an expert from the Somerset County Prosecutor's Office, testified based on all the evidence presented, that the casings came from a Herrington and Richardson, Clerke or F.I.E. handgun.
Police also found the letter to Maskevich that Cathy had written on behalf of defendant, postmarked August 2, 2003. In the envelope with the letter were forms "stating various winnings" from Foxwood Resorts Casino. One was in defendant's name, and the rest were in Dee Patton's name.
Police also found a recording of a voicemail message that defendant had left on Maskevich's answering machine. The message said:
You know, you keep filling Cathy's head full of shit. She told me she's moving to New Jersey. Okay? And she also told me that you're saying I got a thirty five thousand dollar car? 1984 Corvette, salvaged title. Look and see what it's worth. She keeps comin' to my shop flippin' out over this fuckin' girl that you're saying. Delphi Patten [sic] is not a girl. It's a fuckin' guy. Keep interfering with my fuckin' life, you motherfucker. What do you want to do? Bring her there and turn her into a coke whore, like you did the last Cathy? I'll tell you what mother fucker [sic]. You want problems with me, now you got fuckin' problems with me. Okay? Now, let's see what the fuck goes on with your life, motherfucker. Don't fuck with me, bitch.
Presumably the other Cathy to whom defendant was referring was "Kathy" Hardy, Maskevich's former girlfriend. Hardy testified that she had left Maskevich after eleven years, and moved in with defendant and Cathy in Maine because she had a cocaine addiction and could not stop using cocaine while she was ...