On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 03-09-0839.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 21, 2009
Before Judges Lisa, Baxter and Alvarez.
Tried to a jury, defendant Thomas Stiles was convicted of conspiracy to commit first-degree murder, N.J.S.A. 2C:11-3 and N.J.S.A. 2C:5-2. He was sentenced on December 16, 2005, to a custodial term of seventeen years, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2a, consecutive to the sentence he was then serving. We now reverse.
Defendant and his former wife, Diane Stiles (Stiles), separated in 1999. Since that time, the parties have been on poor terms, particularly in relation to the custody and visitation of their children.
In May 2003, while detained at the Cumberland County Correctional Facility (CCCF) on unrelated charges, defendant became the target of a Cumberland County Prosecutor's Office (CCPO) investigation. The investigation began when defendant's cellmate, Carlos Davila, reported that defendant was attempting to hire him to murder Stiles. Defendant gave Davila a hand-drawn map depicting the location of his ex-wife's home and provided a written description of her appearance. When Davila first came forward with the information, he asked CCCF Lieutenant Susan Luciano for some unspecified "consideration" in exchange for his cooperation. Eventually, Davila agreed to wear a concealed microphone and to record his conversations with defendant about the plan.
On May 13, 2003, Davila spoke to defendant at two separate locations while wearing a concealed microphone at the county courthouse. The entire conversation at the first location, as well as the first ten to fifteen minutes of the conversation at the second location, was not taped because the operator forgot to push the record button. The recorded portion of the conversation at the second location was of extremely poor quality, even after extensive enhancement prior to trial. The recorded conversation was not transcribed, but the enhanced tapes were played to the jury over the course of an hour. At times only fragments of sentences or intermittent words were audible.
Defendant was charged with conspiracy on May 21, 2003. Bail was set at $200,000, and he was questioned after processing by the CCPO. When interviewed, defendant waived his Miranda*fn1 rights and provided a taped statement to CCPO Detective George Chopek and Sergeant Walter Wroniak, who also conducted the pre-tape interview. Defendant admitted that he agreed to pay Davila $5000 to murder Stiles; however, he denied that the conversations were serious, or that he ever had the intention or ability to pay Davila to commit the crime.
Defendant filed a pre-trial motion in limine seeking to redact the portion of his taped interview in which he referred to Stiles's accusation that he molested their daughter. The court denied the redaction on the theory that the accusation was not a prior bad act subject to Evidence Rule 404(b) analysis, and that it was otherwise admissible to establish motive.
Defendant also sought redaction of the portions of the taped interview referring to the claims of domestic violence that he and Stiles made against each other immediately after their separation. This application was also denied by the trial judge. The court did agree, however, to give a limiting instruction as to domestic violence after the taped interview was played to the jury.
At trial, Chopek testified that Davila "wanted nothing" in exchange for his cooperation with investigators, "[w]hich then lends more credibility to the informant." He also stated that investigators knew defendant wanted to pay Davila to kill his ex-wife, not only because of his conversations with Davila, but based on "prior information" as well.
Chopek acknowledged that it was difficult to understand the body wire recordings, but insisted that he understood them since he was present when they were made and that "it was pretty clear what [defendant's] intentions were." Chopek testified that in the pre-taped interview, defendant denied that he had drawn a map of the location of Stiles's house, or written a description of her, but then admitted it once he was on tape. Chopek claimed that defendant's taped interview conflicted with what was said in the wire recordings and repeatedly referred to the statement as defendant's "story." On cross-examination Chopek said:
But based off of prior information and the consensual interception, we already knew that [defendant] had agreed to pay him and the down payment and get him the money when he got out of jail. So these are the things he's saying during the interview and I'm allowing him to tell the story. But we already knew them to be different than the conversation we prior heard.
Q: And that consensual interception... you would agree with me, is hard to hear?
A: Yes, but I heard it live so... I pretty much know what was said throughout the thing.
Q: But the proof is what's on the tape, true?
A: Well, I believe the proof is also my credibility and what I heard. And that's what I heard.
Q: Well, we'll have an opportunity to listen to the tape and you'll agree with me it will be difficult to hear?
A: It will be. It will be ...