On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 05-09-1260.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa, Baxter and Alvarez.
Tried by a jury, defendant Michael Coppola was convicted of aggravated manslaughter, N.J.S.A. 2C:11-4a(2), attempted aggravated sexual assault, N.J.S.A. 2C:5-1a(3) and 2C:14-2a(7), possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d, and unlawful possession of a weapon, N.J.S.A. 2C:39-5d. Defendant now appeals, and for the reasons that follow, we reverse and remand for a new trial.
The indictment charged defendant with first-degree murder, N.J.S.A. 2C:11-3a(1) (count one), and first-degree felony murder, N.J.S.A. 2C:11-3a(3) (count two); defendant was actually convicted of a lesser-included offense of murder, namely, aggravated manslaughter. The trial court granted defendant's motion for acquittal on felony murder at the close of the State's case. Defendant was sentenced on August 20, 2008, to an aggregate twenty-seven years imprisonment subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2: twenty years on the aggravated manslaughter (count one) followed by a seven-year consecutive term on the second-degree attempted aggravated sexual assault (count five). A one-year concurrent term was imposed on the fourth-degree unlawful possession of a weapon (count four). The possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d, (count three), was merged with count one.
At trial, Patrolman Jamil Aburomi of the Pompton Lakes Police Department testified that at approximately 11:00 a.m. on Saturday, March 12, 2005, he responded to a dispatch of a stabbing at a condominium community in Summit Falls. Upon arrival, he saw defendant "running . . . into the middle of the street." He was "covered in blood" and "collapsed" onto the ground "in front of [the] patrol car." Officer Jessica Ribitzki was the second officer at the scene.
Inside the residence, Aburomi found the victim, Andrew Vogel, "on the floor in a pool of blood," with a woman kneeling next to him. Vogel had no pulse and was not breathing. The woman, Vogel's girlfriend, A.M., was "screaming and crying hysterically."
While testifying, Aburomi read his report of the subsequent interview to the jury over defendant's objection, made on the ground that the material was inadmissible hearsay. In doing so, he repeated A.M.'s accusation that defendant "raped" her while she was sleeping. A.M.'s statement also described how she and Vogel met defendant for the first time the night before at a local bar. At approximately 1:00 a.m., defendant invited them back to his apartment, where they continued to drink. Defendant invited them to spend the night, and she and Vogel slept in an upstairs bedroom. A.M. awoke between 10:00 and 10:30 a.m. the following morning and found defendant sitting on her side of the bed. The covers were pulled back and she was not wearing pants or underwear. Defendant then told A.M. that they had "had sex," at which point she became very upset. She immediately awakened Vogel and rushed him to get dressed so they could leave.
As A.M. drove away from the condominium, she told Vogel about her conversation with defendant. Vogel directed her to drive back to defendant's residence. Once she pulled up to the front of the condominium, Vogel "jumped out and started knocking on the door." As A.M. turned the car around and began pulling into the driveway, she saw defendant stumble out of his home, covered in blood.
Bruce Sewell, defendant's next-door neighbor, testified that on the morning of March 12, 2005, as he was washing his car in the driveway, he saw Vogel and A.M. leave defendant's residence. A.M. was sobbing and Sewell thought he may have heard her say, "my God." Approximately five minutes later the couple returned, Vogel got out of the car, and he walked past him, "in a hurry," towards defendant's front door. Sewell asked Vogel to tell defendant to move his car because it was blocking Sewell's driveway, but Vogel just said "I'll be out in five minutes." Sewell heard "loud knocking on the door." He next heard A.M. "speak softly," trying to get his attention. She then disappeared into the alley leading to defendant's front door. Sewell then noticed defendant standing in the alley, saying "he didn't kill anybody, he doesn't own a gun." Defendant was wearing pajama bottoms and no shirt and seemed "very calm" and "under composure." Defendant said to him "Bruce, you know me. Look at me. I'm covered in blood." Sewell silently looked up and continued to wash his Jeep. A few seconds passed, and defendant asked "[h]ey, dude, why are you still washing your Jeep?" Sewell responded that he was not becoming "involved in any domestic violence" and bent down to wash his tires. When he stood up, he saw defendant lying in the road and heard police sirens. Defendant was initially quiet, but Sewell thought he may have cried a little when police arrived.
Lieutenant David Struyk, the third officer on the scene, testified that when he arrived he saw defendant, covered in blood, lying in the middle of the street. While Struyk bandaged a one-inch-long cut on defendant's wrist, he asked him what happened. Defendant reported that a couple he met while playing pool in Pompton Lakes had spent the night in his apartment. They left in the morning, but the male came back and tried to break into his residence. He then said "[c]heck on the guy inside the house. I think he's worse than I am."
Defendant was taken to the emergency room of the local hospital. He had abrasions on his left shoulder, forehead, left flank area, and lower back. He also had "some bruising to the right side of his head," and two lacerations on his left wrist.
One was three centimeters and one was one and one-half centimeters.
The tape of the 9-1-1 call defendant made to police was played to the jury. When the 9-1-1 operator asked defendant to explain the problem, he replied, "suspect came into my house, tried to kill me," "I defended myself with a knife," and said that he thought the man was dead. The operator asked for the man's name and defendant said, "I, I only know his name dude, so." He also said "[p]lease, I defended myself; I think I'm going to die."
A.M. testified that on Friday, March 11, 2005, at approximately 6:30 p.m., she and Vogel went to a restaurant bar to celebrate his twenty-second birthday. She had about five light beers and Vogel "probably [had] a few more." At approximately 1:00 or 1:30 a.m., they drove to a pool hall, which was closing as they arrived. Before they drove away, however, they encountered defendant, who was also attempting to enter the pool hall, and decided to go on together to a tavern called the Side Bar, although they were meeting for the first time. While there, Vogel and defendant each had a beer; the bar did not serve A.M. because of her age. A.M. said defendant suggested that they return to his condominium because "his parents were away." In actuality, defendant was staying with an aunt. Defendant said he had a bottle of vodka in his car, and Vogel bought a six-pack of beer for himself and A.M. After they arrived at the condominium at approximately 2:30 a.m., they continued to drink, including vodka drinks mixed by defendant. He offered to let Vogel and A.M. sleep there, and they accepted. All three spent time in a Jacuzzi near the master bedroom on the second floor, after defendant's aunt left the condominium to catch an early flight to Florida. A.M. wore Vogel's t-shirt while in the Jacuzzi, which "covered everything," and Vogel and defendant wore their "boxers." They stayed in the Jacuzzi until approximately 5:30 a.m., got dressed, and defendant showed them to the master bedroom.
Defendant "kept trying to have small talk" with A.M. while he "was . . . cleaning the bathroom," but she was too tired to respond. She told defendant that she was going to sleep and the last thing she remembered was "snuggling" with Vogel as defendant left the room. A.M. woke up approximately five hours later; Vogel was asleep on one side of the bed and defendant was seated on the other side, naked, staring at her. Although A.M. did not recall removing her pants, they were on the floor. She jumped out of bed, grabbed her pants, and ran to the bathroom to get dressed. When A.M. returned, she started shaking Vogel to awaken him while defendant kept repeating, "I can't get in trouble for this, I thought you were awake, I thought you were awake, I can't get in trouble for this." Defendant told A.M. that they had sex, which she denied. Defendant was "yelling and pacing and pacing and yelling I can't get in trouble for this, I thought you were awake, I thought you were awake." When Vogel finally stirred, she told him that they needed to leave immediately. He dressed so quickly that he put his pants on backwards. A.M. got into her car, "very upset and . . . crying." She returned to the condominium unit because Vogel was still inside talking to defendant and she told Vogel that they needed to leave.
As they drove away, Vogel asked her "what had happened," and she responded that defendant "said that he had sex with me." Vogel then said "turn your car around right now, we need to have a talk." When they returned to the condominium, Vogel jumped out of the car and started pounding on the door. A.M. pulled up in front of the house and turned the car around to park. As she started to walk towards the townhouse, she saw defendant. He "was already walking out and he was covered in blood and he came this close to my face and he said the police are on their way, your boyfriend is dead, I killed him. And he had no remorse or anything. He was just proud of what he did." A.M. ran into the residence and saw Vogel on his back on the ground trying to breathe. She stayed beside him until the police arrived.
Ribitzki's police report was also read to the jury, including a statement attributed to A.M. that "she was passed out and that [defendant] raped her." The report also referred to defendant as "the guy who allegedly raped her." Defendant stipulated to the admission of the report. Ribitzki did not testify.
During the subsequent sexual assault examination, A.M. said she was "unsure" what sexual contact had occurred. No seminal material was found on A.M.'s clothing or on the rape kit specimens. Testing did find the presence of amylase, a substance "found in high concentration in . . . saliva," from samples taken from A.M.'s external genital area. Jennifer Banaag of the New Jersey State Police DNA Laboratory Unit testified that the amount of DNA was inconclusive. The external genital DNA specimens showed the presence of material from more than one individual, the major contributor being female, the minor contributor being male. Vogel was excluded as a possible contributor. The DNA was insufficient, however, for conclusive testing but Banaag nonetheless testified that defendant could "not be excluded as having contributed to this mixture" of DNA and only "one in 682" Caucasians could not be excluded.
Zhongxue H. Hua conducted the autopsy on behalf of the Newark Medical Examiner's Office. He said Vogel was five feet ten inches tall and weighed 179 pounds.*fn1 Vogel was clothed in a pair of blue jeans worn backwards, a belt, a white sweater, and shoes. The cause of death was sharp wounds to the neck, torso, and face. Four injuries were located in the chin area, "three of them on the left side and one on the right side"; two wounds were found on the "left side neck"; four in the shoulder and chest area and the left axilla (armpit); and one on the back of Vogel's left hand. Of central importance was the five-inch-deep stab wound to the left side of the neck that punctured Vogel's lung and aorta.
Hua opined at some length that the wounds were inflicted when Vogel was unable to resist or fight back. He said that the location of the wounds at shoulder level or above, and the fact that there were no injuries to the back, meant that the victim was "incapacitated or partially incapacitated, [could not] move, [could not] really fight." Hua attributed the victim's incapacitation as "the most probable, likely cause" to the clustering of the wounds in the upper body, in terms of "reasonable probabilit[ies]." He considered the absence of wounds to other portions of the body to be extremely significant, adding that the wounds to the armpit and the back of the hand were probably "defensive" wounds and were the only defensive wounds. Hua's opinion that the majority of Vogel's wounds were not defensive, and that he was incapacitated when injured, was expressed in terms of "medical certainty." Hua's written report made no mention of the question of whether Vogel's wounds were defensive or whether Vogel was capable of fighting back.
The parties stipulated into evidence the report of Bridget Verdino, the forensic toxicology expert employed by the New Jersey State Police Laboratory Toxicology Unit. Neither the stipulation nor any testimony, nor any comment by the court or counsel explained the results of the testing. The report indicated the absence of "date rape" drugs from A.M.'s urine sample because it was insufficient for testing.
A narrated police DVD of the scene was played for the jury and introduced via the testimony of Detective Sergeant Stephen Seifried. It depicts the front door of the residence leading to a wood floor entryway and a living room area. The victim's body was inside at least ten feet left of the front entrance door. He was lying in a pool of blood "bent over . . . with his knees under his chest, his body resting against a wall, and his head . . . turned toward the right." "[S]everal pieces of furniture" were "knocked over" and a wicker coffee table-trunk was "moved from its original position." A speaker on the entertainment center had been "toppled over," a shelf was "askew," and cassette tapes were strewn about the floor.
There was a large blood stain on the couch and blood splattered on a reclining chair. An eight-inch-long knife blade lay on the floor by the wall to the kitchen. The knife's bloodstained five-inch-long handle was "underneath [a] dining room chair." A trail of blood led from the living room towards the kitchen. About two feet into the kitchen, the floor had "numerous blood drops" and "a smear" of blood. "[T]here was blood on the wall" next to the kitchen phone.
Outside, "numerous blood drops on the walkway" led to the front door where defendant lay in the road, and "quite a few . . . puddles of blood" were on the concrete area outside the front door. Seifried entered the ambulance where defendant was being treated, advised him of his Miranda*fn2 rights and attempted to interview him. Defendant "started yelling that he could not breathe and he did not want to die," at which point Seifried stopped questioning him.
Defendant, who had no prior criminal history, testified on his behalf. He said that when he, Vogel, and A.M. returned to the townhouse, they watched a movie, drank beer, and smoked marijuana. When his aunt left at approximately 4:30 a.m. to go to the airport, they were watching a movie that continued until approximately 6:00 a.m. He further testified that A.M. removed all of her clothes "except her bra and her thong underwear" when they went into the Jacuzzi and that Vogel took off all his clothes. Defendant only wore his boxer shorts. He testified they spent close to three hours in the tub drinking and smoking. When they got out, Vogel "barely dried off" before he went over to the bed and "just passe[d] out." Defendant said that A.M. also dried off and went to bed wearing her bra and thong underwear. When he sat next to her, they talked for "[t]he better part of" an hour and one-half or an hour and forty-five minutes. During this time their conversation became flirtatious and the two "ended up kissing." A.M. removed her underwear and defendant began to perform oral sex upon her even though Vogel was sleeping right next to her. When Vogel rolled over, defendant stopped because he was afraid that Vogel would awaken. He and A.M. began to argue because he stopped, and he became upset because he felt his hospitality was being abused. Defendant walked towards the bathroom and when A.M. continued to yell, he threw her out, at which point she began to cry. She shook Vogel to try and awaken him as defendant began to clean the cigarettes, bottles, and cups from the bathroom. Vogel finally awakened and A.M. told him they had to leave. Vogel dressed and defendant followed them down the stairs, where at the landing Vogel turned around, shook defendant's hand, and thanked him. Defendant shook hands and accepted his thanks but did not respond. Meanwhile, A.M. "was . . . pulling [Vogel] down the stairs" to leave. They left, and defendant locked the door behind them.
Defendant returned to the bathroom to continue cleaning when he heard a loud knocking, "almost [a] banging," on the door. He had two cups and a cigarette in his hand and noticed a watch on the nightstand that did not belong to him. He walked down the stairs and set the cups and cigarette on the railing while the banging continued. Defendant said that although he could not be absolutely certain, he was "reasonably" sure that either Vogel or A.M. was at the door.
As defendant opened the door no more than a foot and one-half or two feet wide, Vogel punched him in the face. Defendant claimed to have lost his balance as he tried to escape because of the force of the initial punch and to have fallen towards the living room. Vogel "came in after" defendant, who bumped into the entertainment system. Vogel hit defendant again and he fell into the coffee table-trunk; Vogel pushed him towards the living room couch.
There was a knife on the coffee table-trunk that defendant said he used the prior afternoon to cut limes for vodka and tonics. Defendant claimed that as he fell back onto the couch with Vogel on top of him he initially could not see anything as Vogel kept striking him. When he looked up, he saw that Vogel had a knife in his right hand. He put up his hand and the knife cut him. Defendant could not get Vogel off because Vogel weighed more than he did.
Defendant and Vogel struggled for the knife; defendant "ended up" with it. As Vogel continued to punch him, defendant was "just trying to get him off me with the knife and I'm just wildly swinging at him." He claimed that even after he stabbed Vogel, Vogel continued to strike him. Defendant pushed Vogel up and "finally . . . got him in the neck -- in the side of the neck again and then that's when the knife broke." Vogel put his hand on his neck to remove the knife blade, defendant "freaked out," and "threw the knife handle down."
When asked about the 9-1-1 call, defendant explained that he used the word "suspect" because he could not remember Vogel's name. He went outside and asked a neighbor for help, who ignored him and continued to wash his car. When he walked out into the middle of the street, he became dizzy, "had tunnel vision," and could not breathe.
Defendant testified that the bruises on the back of his shoulder came "from either hitting the trunk or . . . the couch" and that the knife scrape along his stomach, depicted in the photographs of his injuries taken five days after the incident, occurred while the two men wrestled for the weapon. He further stated that he did not know if Vogel's punches had left bruises because there was no mirror in the jail. Defendant acknowledged that the medical records from that night did not indicate that he had bruising on his face but explained that Vogel attempted to punch him many times, but connected only a few.
After defendant testified, the State presented Captain Charles Tucker, who interviewed defendant at the hospital on the afternoon of March 12, as a rebuttal witness. Tucker said that defendant explained that he had met up with Vogel and A.M. at a bar and that they were drinking and smoking marijuana throughout the night. When he awoke, the victim and the girl were leaving and he began to clean the house. Defendant reported to Tucker that he did not remember what time they left, but only that shortly thereafter there was a banging on the door "like it was being kicked in." When he "opened the door[,] . . . a guy started punching" him. The individual was chasing him as he retreated into the kitchen, where there was a knife, and they "both went for" the weapon. Defendant claimed not to remember much after that, other than asking Sewell for help and Sewell telling him that he was busy washing his car.
The trial judge charged, over defendant's objection, aggravated manslaughter and reckless manslaughter. The court gave the model jury charge on self-defense against an intruder, N.J.S.A. 2C:3-4c, at defendant's request, but also instructed the jury, over defendant's objection, as to general self-defense, N.J.S.A. 2C:3a and 2C:3b.
Defendant moved for acquittal on the murder and weapons charges at the end of the State's case pursuant to Rule 3:18-1. After conviction defendant sought judgment of acquittal, Rule 3:18-2, or in the alternative, a new trial, Rule 3:20-1, as to all charges. All of these motions were denied.
Defendant raises the following points on appeal:
THE COURT BELOW SHOULD HAVE GRANTED THE MOTION FOR JUDGMENT OF ACQUITTAL PURSUANT TO R. 3:18-2 AS TO COUNT 1 (MURDER) SINCE THERE IS INSUFFICIENT EVIDENCE TO PROVE THAT THE DEFENDANT DID NOT ACT IN SELF-DEFENSE; [JUDGMENTS] OF ACQUITTAL MUST BE ENTERED AS TO THE AGGRAVATED MANSLAUGHTER AND WEAPONS CONVICTIONS AS THEY ARE CONTRARY TO THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND NEW JERSEY STATE CONSTITUTION (U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PAR. 10
THE DEFENDANT'S AGGRAVATED MANSLAUGHTER CONVICTION AND WEAPONS CONVICTIONS MUST BE REVERSED IN THE INTEREST OF JUSTICE AND BECAUSE THE CONVICTIONS ARE AGAINST THE WEIGHT OF THE EVIDENCE AS THE STATE DID NOT PROVE BEYOND A REASONABLE DOUBT THAT THE DEFENDANT DID NOT ACT IN SELF-DEFENSE; THE DEFENDANT'S AGGRAVATED MANSLAUGHTER AND WEAPONS CONVICTIONS ARE CONTRARY TO THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND NEW JERSEY STATE CONSTITUTION
THE COURT BELOW ERRED IN DENYING THE MOTION FOR JUDGMENT OF ACQUITTAL AS TO COUNT 3 (POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE) CONTRARY TO THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTON AND NEW JERSEY STATE CONSTITUTION (U.S. CONST. AMEND. XIV; N.J. CONST. (1947)
THE CONVICTION ON COUNT 3 (POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE) MUST BE REVERSED AS IT IS AGAINST THE WEIGHT OF THE EVIDENCE AND IS CONTRARY TO THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND NEW JERSEY STATE CONSTITUTION (U.S. CONST. AMEND. XIV; N.J. CONST. (1947) MANDATING A REVERSAL
THE COURT BELOW ERRED IN DENYING THE MOTION FOR JUDGMENT OF ACQUITTAL AS TO COUNT 4 (UNLAWFUL POSSESSION OF A WEAPON) CONTRARY TO THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND NEW JERSEY STATE CONSTITUTION (U.S. CONST. AMEND. XIV; N.J. CONST. (1947)
THE CONVICTION ON COUNT FOUR (UNLAWFUL POSSESSION OF A WEAPON) IS AGAINST THE WEIGHT OF THE EVIDENCE AND IS CONTRARY TO THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND NEW JERSEY STATE CONSTITUTION (U.S. CONST. AMEND. XIV; N.J. CONST. (1947) MANDATING A REVERSAL OF THE CONVICTION
THE COURT BELOW ERRED IN DENYING THE MOTION FOR JUDGMENT OF ACQUITTAL AS TO COUNT 5 (ATTEMPTED AGGRAVATED SEXUAL ASSAULT) CONTRARY TO THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND NEW JERSEY STATE ...