On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 03-07-01477.
The opinion of the court was delivered by: Espinosa, J.S.C. (temporarily assigned).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman, Graves and Espinosa.
Defendant Gjelosh Jerry Docaj was convicted of the purposeful or knowing murder of his wife, Kathy Docaj, in violation of N.J.S.A. 2C:11-3(a)(1) or (2); possession of a firearm for an unlawful purpose, in violation of N.J.S.A. 2C:39-4(a); and third degree unlawful possession of a handgun without a lawful permit, in violation of N.J.S.A. 2C:39-5(b). He was sentenced to life imprisonment on the murder conviction and concurrent terms for the other charges. The term of life imprisonment equates to seventy-five years in prison and, pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, a parole-ineligibility period of sixty-three years and nine months.
Defendant appeals his convictions and his sentence. We affirm the convictions but remand for resentencing.
Defendant and Kathy Docaj, nee Visita Zadrima, were wed in Yugoslavia in 1983 in an arranged marriage. Kathy had lived in the United States since the age of nine and returned to America shortly after the wedding. Defendant, an Albanian national, followed soon thereafter. They had three children and eventually settled in Lodi, New Jersey. At the time of Kathy's death in February 2003, their son, Christopher, was eighteen years old, their daughter, Christina, was fifteen years old and their younger daughter was nine years old.
Kathy was employed as a concierge at a business in Manhattan near the Battery Park ferry terminus. Defendant worked in air conditioner and refrigeration maintenance at a building in Manhattan. In the latter part of 2002, Kathy became acquainted with Robert Narciso, who also used the ferry to commute to Manhattan. Initially platonic, their relationship grew closer over several months. In mid-December 2002, Kathy told defendant that she no longer loved him. At Kathy's request, defendant moved out of the marital home to an apartment in Lodi in January 2003.
Approximately ten years earlier, defendant purchased a .38 caliber handgun, which he kept in a shoe box under his bed. At the time that he was moving out, he and Kathy discovered that Christopher had removed the gun some months earlier and kept it, unloaded, in his room since that time. Defendant took the handgun with him when he moved out.
Defendant began to suspect that Kathy was "cheating on him" and later told police that he saw her leaving her place of employment with "her boss." On February 7, 2003, Kathy telephoned defendant and told him that she was meeting a lawyer that day to prepare papers to file for divorce. Defendant's diary reflects that he begged her not to divorce him and that she replied, "[T]his thing has to be done." Kathy met with the lawyer and a complaint for divorce on the grounds of extreme cruelty was drafted.
Defendant and Kathy alternated weekends with the children. It was defendant's turn to spend the weekend of February 8 and 9 with the children. Narciso, a divorced father of two daughters, also alternated weekend child care with his wife. As a result, Kathy and Narciso were able to spend that weekend together. Kathy told defendant and her children that she was spending the weekend in Atlantic City with friends. Defendant wrote in his diary, "There's no way I understand how can a person who has been in love with her husband for 19 years can do something like this and go to Atlantic City to celebrate or for any other reason."
Defendant's diary also recorded his reaction to Kathy's failure to give him anything for his birthday on February 12: "My wife bought me nothing, I will remember this because one day by the power of God it will come that I will remember that day."
He bought a birthday cake, flowers and a card for Kathy for her birthday two days later. Around this time, Kathy told defendant that she had "another man lined up." Defendant also noticed her wearing jewelry that he had never seen before.
On February 17, 2003, Narciso received a telephone call from a man speaking English with a foreign accent who would not identify himself. In their brief conversation, Narciso commented that the caller knew more about him than he did about the caller. When Narciso asked for the caller's telephone number, the caller hung up.
It is reasonable to infer that defendant placed this call to Narciso. Christopher had noticed that Kathy was spending "too much" time on the telephone and used the "Star sixty-nine" feature to learn what number she was calling. He provided the number, which was Narciso's, to his father. A paper with Narciso's telephone number was found among the defendant's possessions by the police after his arrest.
Kathy and Narciso planned to spend the weekend of February 22 together. Their plans had to change when defendant told her that he had to work on Saturday and Kathy would have to care for the children. Defendant also told Kathy that he wanted to meet and talk to her. When she told him that she would not be coming home on Friday, he asked her why. She replied, "I'll come home when I want to."
Kathy spent Friday, February 21, 2003, with Narciso at his apartment. He dropped her off one block from her home on Saturday in the early afternoon.
Defendant spent Friday night with his children. He awakened around 4:00 a.m. on Saturday and left for his apartment at approximately 6:00 a.m. After changing clothes, he took a book bag containing the .38 caliber handgun with him to work and stored the book bag in his locker.
While at work on Saturday, February 22, 2003, defendant called the marital home twice. Kathy was not home until his second call. Defendant asked her, "How was your night out at the club?" Kathy told him that she had been out until 3:00 or 4:00 a.m. When defendant said that he would see her later at the marital home, she replied, "Whatever." According to her daughter, Kathy was not looking forward to defendant's visit.
Defendant left work at approximately 6:00 p.m., carrying the book bag with the .38 caliber handgun with him to his apartment. He removed the handgun from the book bag, placed it in the waistband of his trousers underneath a vest, and proceeded to the marital home.
Defendant entered the home on the lower level. Kathy was present on that level with their three children and two friends of the children. Defendant and Kathy went upstairs to the kitchen, where they sat, drinking coffee and smoking. When Christopher came to the kitchen to use the telephone, defendant asked Kathy to go to the bedroom because "he wanted to talk to her about something." Defendant walked to the bedroom and Kathy followed him. The door closed and was locked.
Within a minute, Christopher heard his parents screaming and cursing, as well as noises of pushing and shoving. Then, he heard his mother scream and a single "boom." Christopher ran to the bedroom, trying unsuccessfully to open the door. He began screaming, "Open the door, open the door." Defendant opened the door and, white-faced, immediately said, "I'm sorry, I'm sorry." Defendant blocked Christopher from entering the room but Christopher was able to see his mother lying, bloody, on the floor. Drawn by the sounds, Christina came upstairs where she saw defendant and Christopher struggling and arguing. Defendant told Christina "she cheated on me for two years" and "she's gone." He continued to block Christina and Christopher from entering the bedroom.
Christina dialed "911" and asked for an ambulance, stating that she thought her mother was dead. Defendant can be heard on the tape recording of this conversation, yelling loudly, "She was cheating on me," "She was f--king cheating on me," "She was cheating on me for one year." A second call to "911" was made by Christopher, urgently requesting help.
Two policemen from the Lodi Police Department arrived to find Kathy lying in a pool of blood on the bedroom floor and a revolver resting on the lower end of the bed. Christopher was irate and about to walk out of the home. Defendant was in a daze, walking aimlessly in circles. Uncertain as to what had transpired, the police handcuffed both Christopher and defendant for "safety" reasons. Defendant was advised that he was not under arrest; he was not given Miranda*fn1 warnings and was not questioned by the police at this time.
Later investigation revealed that Kathy died from a single gunshot wound that entered the back of her head and exited from her forehead. The .38 caliber handgun found on the bed had been pressed loosely against the back of her skull when it was fired. The medical examiner testified that she was not standing but was "positioned low" in relation to the shooter when she was shot.
Defendant gave a statement to the police and described what happened in the bedroom. He admitted that he had the gun with him when they went into the bedroom but denied that he had gone to the house with the intent to kill Kathy. He said that in the bedroom, he begged her to stay together for the children and that he would "forgive [her] to this point." He stated that Kathy was sitting on the bed and looked angry, "as if she really wasn't hearing it, that she didn't want to hear it." According to defendant, Kathy said, the "only thing you're getting are your walking papers." She struck him just once, "hit[ting] him on the left side of his face right by his mouth." He said, "Things went dark." He pushed Kathy downward with his left arm and tried to catch her with his right hand when it appeared that she might strike her face on the floor. ...