On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Indictment No. 05-11-0464.
The opinion of the court was delivered by: Messano, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Messano and LeWinn.
Defendant Paul A. Foglia was indicted by the Sussex County grand jury for the first-degree knowing and/or purposeful murder of Elizabeth J. Lott, N.J.S.A. 2C:11-3(a)(1) and/or (2); second- degree burglary, N.J.S.A. 2C:18-2; first-degree felony-murder of Lott, N.J.S.A. 2C:11-3(a)(3); and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d). Following a jury trial, defendant was convicted of knowing and/or purposeful murder, the weapon offense, and the lesser-included charge of criminal trespass, N.J.S.A. 2C:18-3. After merging the weapon offense into the murder conviction, the judge sentenced defendant to life imprisonment with an 85% period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, and a concurrent eighteen-month sentence on the trespass conviction. On appeal, defendant raises the following issues:
THE ADMISSION OF EXTENSIVE PRIOR BAD-ACTS EVIDENCE AND THE COURT'S FAILURE TO PROVIDE A LIMITING INSTRUCTION DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL.
THE TRIAL JUDGE'S REFUSAL TO MORE SPECIFICALLY INSTRUCT THE JURY THAT A CONTINUING COURSE OF ILL TREATMENT COULD PROVIDE THE BASIS FOR A VERDICT OF PASSION/PROVOCATION MANSLAUGHTER VIOLATED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL.
PROSECUTORIAL MISCONDUCT DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL. (Not Raised Below)
THE COURT ERRED IN EXCUSING JUROR NUMBER SEVEN AFTER TWO DAYS OF DELIBERATIONS IN ORDER TO ACCOMMODATE THE JUROR'S VACATION PLANS. (Not Raised Below)
THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING DEFENDANT TO A LIFE TERM BECAUSE A PROPER ANALYSIS OF THE AGGRAVATING FACTORS DOES NOT SUPPORT SUCH A SENTENCE.
In a pro se supplemental brief, defendant raises the following issues for our consideration:
THE PASSION/PROVOCATION JURY CHARGE INCORPORATED MISSTATEMENTS OF LAW AND OTHER ERRORS WHICH PRECLUDED THE JURY FROM PROPERLY CONSIDERING RELEVANT EVIDENCE LIKELY TO REDUCE THE OFFENSE OF MURDER TO MANSLAUGHTER. A LETTER SUBMITTED BY A DELIBERATING JUROR PRIOR TO SENTENCING ILLUSTRATES THE DEFECTS OF THE INSTRUCTION AND THE UNRELIABILITY OF THE VERDICT.
THE BURGLARY AND FELONY MURDER COUNTS, PREDICATED ON THE DEFENDANT ENTERING THE RESIDENCE WITH INTENT TO COMMIT MURDER, AMOUNTED TO PREJUDICIAL DOUBLE CHARGING FOR MURDER, WHICH INFECTED BOTH THE PLEA OFFER AND THE TRIAL. THESE FLAWED COUNTS ESTABLISHED A DEFECTIVE PLEA OFFER BY THE STATE. AT TRIAL, THEY IMPERMISSIBLY SHIFTED THE ATTENTION OF THE JURY TO IRRELEVANT AND ERRONEOUS LEGAL CONCEPTS INSTEAD OF CONSIDERING THE MURDER OR PASSION/PROVOCATION ISSUE.
We have considered these arguments in light of the record and applicable legal standards. We reverse.
At approximately 10:00 p.m. in the evening of September 24, 2004, Virginia "Gina" Liotta returned to the home she shared with her two young sons and her sixty-seven year old mother, Elizabeth J. Lott, in Wantage. Lott was a professor of economics at Pace University in New York and in very poor health. The house, described by the prosecutor as Lott's "dream home," was situated on forty acres and quite isolated from other homes in the area.
Along with her sons, Liotta had been out to dinner at her uncle's home in Totowa. Upon returning home, the sliding door to the family room was unlocked as it usually was. Liotta entered and found her mother "lying . . . on the floor, face down[,]" surrounded by blood, with a wooden, folding tray table on top of her. Her thick eyeglasses were broken and lay on the floor near her body. Liotta called 9-1-1 and emergency medical personnel arrived at the home.
A neighbor, Jill Shrope, saw the emergency vehicles and went to Lott's house. She took Liotta's older son, who was six, back to her house, called defendant at the Fone Booth Bar and Restaurant (the Fone Booth) where he worked as a bartender, and told him to come to her house. Defendant arrived at Shrope's house approximately twenty minutes later.
Defendant and Liotta were involved in a tumultuous, twelve-year romantic relationship, and he was the father of her two sons. He had recently been hired by the Fone Booth, having worked in the past as an automobile mechanic, a male dancer, and a personal trainer. He was in excellent physical condition.
Lott did not care for defendant and limited his visits to her home to only two days per week so that defendant could see his sons. The acrimony between defendant and Lott, and the reasons for it, were the subject of much testimony at trial, and we examine that evidence in further detail below.
Investigators arrived at the crime scene, processed it, and secured various items for analysis. There were no signs of forced entry at the Lott home, nothing appeared to have been stolen, and there was no evidence of a sexual assault.
Liotta and defendant went to the local police department with Detective Sergeant Donald Peter of the Sussex County Prosecutor's Office. Peter called the Fone Booth, and confirmed that defendant had worked there during the evening, but that he had left "for a period of time" claiming to be ill. Detective Virgil Rome, Jr., of the Prosecutor's Office went to the Fone Booth and secured the videotape from surveillance cameras at the bar parking lot. It revealed that defendant arrived for work at 6:01 p.m., left the premises at 7:51 p.m., and returned at 9:00 p.m., ample time for defendant to have gone to Lott's home, kill her, and return.
At trial, defendant's fellow employees and a patron at the bar testified that he did not appear to be ill on the evening of September 24, but claimed that he was. Defendant left the bar for some time. When he returned, he was disheveled, sweaty, and his eyes were bloodshot. Although he apologized for leaving in the middle of his shift, the manager fired him. Defendant remained in the bar, however, and ordered some food; he appeared nervous, was pacing, and repeatedly went to the men's room, leaving the bar after receiving a phone call.
Investigators questioned defendant after advising him of his Miranda*fn1 rights. Defendant denied killing Lott, though he admitted his relationship with her was not good. Defendant also initially denied leaving the bar at all, but subsequently told the police that he had left for twenty minutes to get some air. When confronted with his fellow employees' statements that he was gone for more than one hour, defendant admitted it might have been longer than twenty minutes but that "he absolutely never left the parking lot" of the Fone Booth. The investigators collected defendant's shoes and clothing, as well as DNA samples. Defendant's shoe tested positive for the presence of Lott's blood. Defendant was arrested on September 29 and charged with her murder.
At trial, the State introduced forensic evidence that the blood on defendant's shoe resulted from impact splatter and that defendant had been standing within ten feet of the blood source at the time. Lott was likely struck with the folding table when she was in a horizontal position. The medical examiner opined that Lott died from blunt impact trauma to her skull and brain, having sustained a skull fracture to her right side that was likely fatal and caused by significant force.
Alan Casey, a jailhouse informant, testified that defendant told him while both were incarcerated in the Sussex County jail that he went to Lott's house with the intention of killing her. Defendant professed his love for Liotta and the children, and that he wanted to live with them, but told Casey "the only way for it to happen was for [Lott] to not be there." Casey claimed defendant knew Lott would be alone in her home on the night of September 24 because he had earlier spoken to Liotta by phone. Indeed, in her testimony, Liotta corroborated a phone conversation with defendant had occurred earlier in the evening.
Defendant told Casey that when he appeared at Lott's home the night of the murder, and she threatened to call the police, he "snapped," pushed her to the ground, and hit her with the folding table.
Defendant testified on his own behalf. It suffices to say that defendant admitted killing Lott, but claimed he did so in the heat of passion after she provoked him. As we note below, defendant's anticipated passion/provocation defense became the central focus of the trial even before it was asserted through his testimony.
Defendant testified that he was sick on the night of the murder and left the Fone Booth, though he claimed it was with permission. He had spoken to Liotta by phone, and she was upset. Defendant believed it was due to the constant tension between her and her mother and he further thought they had argued that day. Defendant decided to go to Lott's home and speak to her about their problems.
Defendant saw Lott watching television through the rear sliding door. He "tapped" on the door and Lott let him in. However, the conversation deteriorated into a battery of insults; he called Lott "[a] witch." Defendant claimed Lott came at him swinging her arms and that she picked up the folding table and swung it at him, hitting him in the left arm, causing a minor laceration. He grabbed the table from her and hit her on the head. When she fell to the ground, he hit her again and left the table on top of her. Defendant claimed that after Lott hit him with the table, "[he] went into a blackout, a blur." He was enraged because Lott told him he was "not good enough for her daughter . . . [his] kids, [his] sons, [and] that if it was up to her she'd take [his] kids away . . . and . . . [he] would never see [them] again."
During cross-examination, defendant acknowledged that he had given a number of different accounts of his activities on the night of the homicide to law enforcement authorities. He also admitted that in an attempt to have his bail lowered, he had supplied a false certification in which he claimed the police had coerced him into providing a formal statement immediately after arrest.*fn2 Defendant never indicated in any of those prior statements, however, that Lott had threatened or hit him with the folding table.
There was other evidence that inferentially challenged the credibility of defendant's version of the events in Lott's home. For example, when he was initially interviewed by the police, they observed no injury to his arm. Defendant also claimed that when he returned to the Fone Booth after the homicide, his frequent trips to the men's room were caused by nausea and ...