On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 04-04-0234.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: September 24, 2008
Before Judges Fisher, C.L. Miniman and Baxter.
Defendant Jonathan Nyce appeals from the September 22, 2005, Judgment of Conviction and Order for Commitment after a jury found him guilty of the second-degree passion-provocation manslaughter of his wife, contrary to N.J.S.A. 2C:11-4b(2), and fourth-degree tampering with physical evidence, contrary to N.J.S.A. 2C:28-6(1).*fn1 Defendant was sentenced to seven years in prison for manslaughter and to a consecutive one-year term for evidence tampering. We affirm.
Defendant, a scientist with a doctorate, was the founder and chief executive officer of Epi-Genesis Pharmaceuticals. He had been married to his wife Michelle for twelve years prior to her murder. They had three children, ages twelve, ten, and five, and lived in a large home in Hopewell Township. In 2001 and 2002, the Nyces hired a landscaping firm to do some work at their home and in 2002 one of its employees, Miguel de Jesus, knocked on the door to inquire about the bill and met Michelle. They exchanged cell phone numbers, communicated frequently thereafter, and then began a sexual relationship.
Defendant learned of the affair in July 2003, and called de Jesus, leaving a message to stay away from his wife or he was "a dead man." That month, defendant contacted the FBI claiming that de Jesus was trying to extort money from him. The FBI referred the matter to defendant's local police department, which interviewed defendant. He claimed that he received two phone calls on July 10, 2003, seeking to extort $500,000 in exchange for a tape recording of Michelle having sex with someone. The police could not trace the calls back to de Jesus and, after having several conversations with defendant and Michelle, the investigating officer, Daniel McKeown, concluded the charges were unfounded and refused to take any action. Defendant then signed a harassment complaint against de Jesus. It was conditionally dismissed if de Jesus refrained from contacting defendant and Michelle for two years. De Jesus and Michelle resumed their sexual relationship a few weeks later.
On Thursday, January 15, 2004, Michelle arranged to meet de Jesus at 9:15 p.m. after she finished work at Macy's. After meeting, they drove to Hamilton Plaza and left Michelle's Toyota Land Cruiser and de Jesus drove her to the Mount Motel in Lawrenceville. After engaging in sexual relations, they took a shower and Michelle got dressed and put on some perfume. De Jesus drove her back to get her car and she left. He drove to a bar and had a few drinks before he went home to make his live-in girlfriend believe that he had been out drinking.
At 6:58 a.m. the next morning, Hopewell Police Officer Lincoln Karnoff was dispatched to defendant's home on a report from an alarm company that the basement burglar alarm had been activated. The day was very windy and there were snowdrifts on the driveway because it had snowed the day before. Karnoff noticed tire tracks on the lawn. He walked around to the basement French doors, which were at ground level, but determined that there were no signs of attempted entry.
Around the same time, Public Service Electric & Gas Company employee Richard Archer saw a Land Cruiser, with its engine running, resting against an embankment on Jacob's Creek Road. He did not immediately investigate, but after breakfast, he told the driver of the PSE&G vehicle, Chuck Black, to pull over. Archer walked down the embankment and saw a woman inside the car slumped over on a pillow with her eyes open. He noticed footprints going away from the car and across the ice on the creek and up the other side. He also noted minimal damage to the vehicle and frozen blood on the running board. Black alerted authorities.
Various Hopewell police officers responded to the scene. In addition to the observations made by Archer, they saw blood on the exterior of the rear driver's side door. Photographs and a cast impression were taken of the footprint next to the passenger side of the vehicle. A Division of Motor Vehicles search revealed that the vehicle was registered at defendant's home, which was located nine-tenths of a mile from the scene.
Sergeant Michael Cseremsak and Officer Michael Sherman went to defendant's house at 9:13 a.m., walked through a single, open, garage door, and knocked on the door from the garage to the house. Two children answered and said neither of their parents was home, but that their dad, who had taken their brother to school, would be home soon. The officers waited in their police car until defendant, appearing disheveled, drove up. Cseremsak told him that they needed to talk and asked if they could come in. Defendant agreed and drove up the driveway and parked in front of the house, simultaneously closing the open garage door. They all entered through the front door.
Cseremsak advised defendant that the Land Cruiser had been in an accident. Defendant said that his wife used that vehicle and he asked how she was and what hospital she was in. Instead of responding, the officers asked defendant when he last saw her. Defendant responded that she was supposed to work from 6:00 p.m. until 10:00 p.m. and then go out with a friend. She had told him she would be home by 1:00 a.m., but he knew from experience that she would not get home until later and sometimes did not come home until the morning.
Cseremsak excused himself and called his supervisor, Lieutenant Frank Fecher, and told him about defendant closing the garage door when he arrived at the house. By this time, Michelle had been definitely identified at the scene by McKeown, so Fecher told Cseremsak that he believed the dead woman was defendant's wife, to tell defendant the news, to Mirandize*fn2 him, and to take a statement. Defendant was not a suspect at this time. After Cseremsak advised defendant of his rights, defendant said that he understood them and stated he was not under the influence of drugs or alcohol. Defendant did not appear upset when Cseremsak said Michelle was dead. Cseremsak asked him if she had been seeing anyone, and defendant said she had. He again claimed her boyfriend had tried to extort money from him.
After checking the basement for signs of an intrusion, which defendant permitted, Cseremsak and Sherman left the house and waited outside in a police car until McKeown and Mercer County Prosecutor's Detective Sergeant Karen Ortman arrived at the house at approximately 10:45 a.m. McKeown and Ortman went to the front door and told defendant's daughter that they would like to speak to defendant, but they had to wait fifteen minutes before he responded. When defendant opened the door, his hair was a mess, his clothes were wrinkled, and he was wearing no shoes or socks. McKeown asked defendant to come to the station to give a statement and defendant agreed, accepting McKeown's offer to drive him to the police station. On the way, defendant stated that de Jesus's "wife" had to be involved in Michelle's death.
For two-and-a-half hours at police headquarters, McKeown asked defendant questions while Ortman typed his improbable answers. Defendant recounted the previous summer's extortion attempt and added that Michelle told him that de Jesus had made threats against him. He alleged that de Jesus called him once screaming he was "going to kill the bitch." He also claimed that Michelle told him that de Jesus's girlfriend had sent her "nasty" text messages. He asserted Michelle told him that she needed a new car because "people" were following her from work and that she suspected it was de Jesus or one of his friends.
At one point, defendant said that he wore a size twelve shoe.*fn3 McKeown noticed some small cuts on defendant's hands, which he agreed to have photographed. Defendant permitted buccal swabs for DNA comparison. After the interview, McKeown drove defendant to his son's school to pick him up. On the way, defendant said that he really had thought things were going to work out, but admitted that he and his wife fought about her moving out of the house. McKeown asked when they last had that conversation, and defendant replied, "Last night."
Meanwhile, State Trooper Geoffrey Noble made a number of compelling observations that led him to conclude that Michelle's death was not consistent with an automobile accident. When Mercer County Medical Examiner Raafat Ahmad arrived at the scene at about 6:16 p.m. on the day of the murder, she too concluded, based on the injuries to the victim's forehead, that the "accident" had been staged. The body was then removed from the Land Cruiser and taken to the Medical Examiner's office, where, at 7:25 p.m., Ahmad viewed the victim's body, which reinforced her opinion that the injuries were not the result of a car accident.
Based on these observations and defendant's statements, police believed it was likely that Michelle had been killed at her home. At about 8:30 p.m., a team of state and municipal officers went to defendant's home and asked him to vacate it pending the issuance of a search warrant. Defendant asked to call a lawyer and did so, leaving a message when he was unable to reach the lawyer directly. The police did not question him at this time. Defendant took a few personal items and left the home; he was not permitted to take his cell phone. Defendant gathered his children from the home of a friend and told her that he was taking the children to his parents' home in Collegeville, Pennsylvania. The next morning, the friend read the local newspaper, which suggested Michelle's death was a homicide, and called defendant to read the article to him.
On Saturday, January 17, 2004, Ahmad performed an autopsy on Michelle, who had three deep, gaping lacerations to her forehead, an extensive skull fracture, and massive intracranial hemorrhages caused by excessive force. She had multiple other internal and external injuries, including defensive wounds. From the froth that had developed in Michelle's lungs, Ahmad determined that she had lived for ten minutes after the trauma had been inflicted. The cause of her death was massive blunt-force trauma to the head, fractures of the skull, contusions of the brain, and intracranial bleeding.
Police obtained a warrant at 10:30 a.m. Saturday morning for a search of defendant's home.*fn4 However, they did not have enough staff to execute the search warrant until 6:00 p.m. that evening. The house had seventeen rooms plus a full basement, attic, and three-car garage. New Jersey State Police Detective John Ryan processed the garage. He found Michelle's blood on the rail and doorjamb of the door from the garage to the house and her blood was spattered on a snow blower, wet vacuum, and a recycling bucket in the garage that contained a bloody sock. There were bloodstains on the garage floor that someone had attempted to clean. There was also a partial, ...