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State of New Jersey v. George Calleia

June 9, 2011


On certification to the Superior Court, Appellate Division, whose opinion is reported at The opinion of the court was delivered by: Justice LaVECCHIA


(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

State v. George Calleia (A-32-10) (066446)

Argued March 15, 2011 -- Decided June 9, 2011

LaVECCHIA, J., writing for a unanimous Court.

In this appeal, the Court considers whether defendant's convictions appropriately were reversed because the State used the deceased victim's state-of-mind hearsay statements as evidence suggesting defendant's motive.

In 2005, defendant, George Calleia, and his wife, Susan, had been married for thirteen years and had an eight-year old daughter, Ana (fictitious name). On Thursday, October 20, 2005, defendant came home at 6:30 p.m. as Susan was leaving. He got upset when she would not say where she was going. When she returned, they argued. A neighbor heard Susan's screams at 8:15 p.m. Ana saw her parents go into the garage and believed she saw her father trying to calm her mother by putting his arms around her shoulders. When Ana asked what they were doing, her father told her to go to bed. At 5:30 a.m. the next morning, defendant called 9-1-1 to report Susan as missing.

When Patrolman D'Arcy arrived, defendant appeared nervous. He said that he and Susan argued the night before but resolved their argument; he went to bed by 9:30 p.m.; and due to marital differences, they were sleeping in separate rooms, so he did not notice her car was gone until morning. Later, Detectives Veprek and Johnson arrived. Defendant would not shake hands or make eye contact and kept his hands covered by his sleeves. He said that his relationship with Susan was friendly, but the marriage was strained. When asked if Susan wanted a divorce, he said, "She needs her space. Those are her words, never said separated or divorce." He kept his right hand under the table, even when he used it to write. As the detectives left, defendant spontaneously said, "I think my wife was abducted at 5:30 this morning" while going to buy milk.

Officers Veprek and Smythe returned at 3:20 a.m. on Saturday with a search warrant. Wearing the same shirt, defendant opened the door and kept his hands hidden. When he reached for new clothes, the officers saw that his right hand was injured. He said he punched a wall in his house. When the officers asked to see it, defendant looked up and stared at them. Smythe said that the injury "looked like it was from someone's teeth." Defendant replied: "I want to recant what I just told you . . . . I backhanded Susan in the face on Thursday night in the garage. That is why she left . . . and did not return. . . . I want to recant that. . . . I went to hug Susan, and she bit me."

That same Saturday morning, Susan's body was found wrapped in a yoga mat in the cargo area of the family's Lexus SUV. It was parked at the PNC Arts Center, about two miles from the home, where defendant regularly parked to commute to work by bus. The medical examiner testified that the cause of Susan's death was manual strangulation between 4:00 p.m. and midnight on October 20. DNA under her nails belonged to a male and defendant could not be excluded. The defense expert estimated that she died no earlier than 7:00 a.m. on October 21.

Before trial, the court denied defendant's motion to preclude statements that Susan had made to the effect that she was unhappy, wanted a divorce, and was seeking a lawyer. The court found them admissible under N.J.R.E. 803(c)(3) as state-of-mind evidence to show the nature of her relationship with defendant and whether it had significance in establishing a motive to kill her. At trial, Susan's friends uniformly revealed that she was unhappy with her marriage, was contemplating divorce, and had taken steps in that regard. During summation, the prosecutor emphasized motive, stating: "Susan wanted a divorce," "defendant didn't," and defendant knew that Susan "didn't care anymore if he knew what she was doing in terms of lawyers." The court instructed the jury that Susan's statements could only be considered as evidence of her state of mind and plans, and as evidence of the nature of the relationship between her and defendant "to show that a relationship was not inconsistent with commission of homicide." The court explained that defendant's "motive if any to kill his wife because of the breakdown of the marriage and any impending divorce must be developed from evidence independent of" Susan's statements.

The jury found defendant guilty of Susan's murder and other offenses. He was sentenced to fifty years in prison. The Appellate Division reversed defendant's conviction, holding that state-of-mind hearsay evidence is not admissible to prove motive. The Court granted the State's petition for certification. 204 N.J. 41 (2010).

HELD: If a victim's state-of-mind hearsay statements are relevant to show the victim's conduct, and if such conduct also can give rise to motive when it is known or probably known to the defendant, then the statements are admissible for the purpose of establishing motive subject to the usual balancing under N.J.R.E. 403. Any error in this case stemming from the cumulative nature of the hearsay testimony is harmless.

1. The admissibility of victims' state-of-mind hearsay statements to prove motive has been addressed in many cases. Those cases make clear that a victim's state of mind, standing alone, cannot directly prove motive; and admitting a statement about a victim's fear of a defendant, with no connection to the defendant's knowledge, would erroneously permit an inference that the victim had reason to fear the defendant or that defendant had motive. It does not follow, however, that a decedent's hearsay statements are never admissible to prove motive. Motive evidence can aid a jury in determining who committed a crime by explaining what events might have led the accused to commit it. A wider range of evidence is permitted to show motive than other issues. A strong showing of prejudice is necessary to exclude motive evidence under the N.J.R.E. 403 balancing test. (pp. 17-28)

2. When a state-of-mind hearsay statement is relevant to show a victim's conduct, and when that conduct also can give rise to motive if it is known or probably known to the defendant, the statement is admissible to establish motive subject to the usual balancing under N.J.R.E. 403. The State must prove that the accused probably knew of the facts alleged to establish motive. Here, Susan's friends testified about her statements that she was unhappy in her marriage and was looking for a divorce attorney, and also about her conduct in their presence, including calling an attorney, storing financial records, and not wearing her wedding ring. As to whether defendant knew of Susan's plans, a computer analysis revealed that someone under his username had searched for divorce attorneys, including one that Susan had met. Also, according to his exercise partner at the gym, defendant said that he and Susan "might be heading towards a divorce," and that he did not want a divorce. (pp. 28-36)

3. Susan's hearsay statements are admissible under N.J.R.E. 803(c)(3) and 401 because they are relevant to show that she took steps toward a divorce. Her conduct, together with defendant's awareness of it, is itself relevant because it gives rise to a possible motive to kill her. Competent evidence, including defendant's own statements and an analysis of his computer, showed that defendant knew Susan was unhappy and wanted a divorce. Thus, Susan's statements to that effect to her friends did not reveal any information that defendant did not know himself. Moreover, Susan's statements to her friends do not contain unfounded statements of fear that could inflame jurors and, thus, do not raise the prejudicial concerns that have caused courts to exclude evidence. (pp. 36-38)

4. Once the State presented enough evidence to show that defendant likely knew Susan wanted a divorce, additional statements were unnecessarily cumulative; and there was no evidence that defendant was aware of many of the specific actions revealed by the statements. Nonetheless, there is no reversible error because (1) much of the information was also admitted through means other than state-of-mind hearsay, such as witnesses' observations and defendant's own statements; (2) the unknown details were not damaging because they showed Susan was pursuing a divorce, which defendant knew; and (3) the statements did not include elements that might inflame a jury. Importantly, there was strong independent evidence to consider here, including the scream heard by the neighbor; defendant's hiding his hand and various explanations to police; his familiarity with where Susan's body was found; and DNA evidence. On this record, there is no likelihood of an unjust result due to the extra evidence admitted as motive evidence even though the State failed to show that defendant likely knew the information. (pp. 40-43)

The judgment of the Appellate Division is REVERSED; defendant's conviction is REINSTATED; and the matter is REMANDED to permit the Appellate Division to consider defendant's sentencing claims of error.



Argued March 15, 2011

JUSTICE LaVECCHIA delivered the opinion of the Court. Defendant George Calleia was convicted by a Monmouth County jury of the murder of his wife, Susan, tampering with evidence, and hindering apprehension. See N.J.S.A. 2C:11-3(a)(2) (first-degree murder); N.J.S.A. 2C:28-6 (tampering with physical evidence); N.J.S.A. 2C:29-3(b)(4) (hindering apprehension). He was sentenced to an aggregate term of fifty years in prison, subject to the mandatory eighty-five percent period of parole ineligibility imposed by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. In this appeal by the State, we consider whether defendant's convictions appropriately were reversed by the Appellate Division because the deceased victim's hearsay statements regarding her state of mind were used as evidence suggestive of defendant's motive.



The State's petition for certification, which we granted, 204 N.J. 41 (2010), argues that the victim's hearsay statements were admissible to show the relationship between the parties and to explain a motive for defendant's alleged criminal conduct, namely that because the victim intended to divorce defendant, and because defendant became aware of the victim's plan, he killed her. Defendant's position is, essentially, that a decedent's hearsay statements are inadmissible to prove defendant's motivation or conduct. Regardless of the outcome of that difference as to the hearsay evidence, the State further maintains that even if the victim's hearsay statements were improperly admitted, any error was harmless because non-hearsay evidence established the same essential facts of the State's motive theory, because of the overwhelming evidence of defendant's guilt, and because of the curative effects of the trial court's jury instructions regarding use of the decedent's statements.

Context is important for the parties' pitched battle over the appropriateness of the hearsay statements concerning the deceased victim's state of mind admitted in defendant's trial. Here, the State's case was built on circumstantial evidence, as the following basic information was all that the murder investigation initially revealed.

The day after defendant reported her missing, Susan Calleia's body was found wrapped in a yoga mat in the cargo area of the family's Lexus SUV. The vehicle was parked at the PNC Arts Center, about two miles from the family's home. She had been strangled to death by hand, but had sustained such severe bruising and trauma to her head and body that, absent the strangulation, she still might have died. Aside from her socks, she was naked from the waist down. Her body was positioned in such a way that was consistent with sexual assault. Susan's pants and vaginal swabs both tested negative for sperm and semen, but forensic experts agreed that intercourse can occur without leaving sperm or semen on the female.

Also, the vehicle's distance from the home was the subject of close examination, specifically in respect of the amount of time it would take to travel from the family home to where the SUV was found. Travel estimates for that distance varied.

Direct routes ranged from 1.5 miles, for a straight-line route without regard to terrain, to 2.4 miles. The travel time for someone on foot to move between the two locations factored into the State's ability to focus suspicion on defendant as the likely murderer with opportunity to carry it out. At trial, the parties explored when defendant was observed in his home the evening Susan disappeared, and the time when he reported Susan missing early the next morning and police officers arrived at the family home to speak with him about her disappearance. It was also brought out at trial that the location where the SUV was found was familiar to defendant because he parked at the PNC Arts Center and commuted to work by bus from there.

With that background in mind, we turn to the evidence that was presented during the trial about the victim and defendant, their relationship, the State's motive theory, and the quantum of evidence adduced against defendant. Because much of the State's case pivoted off defendant's statements, we address them in detail.


As of October 2005, when the murder occurred, defendant and Susan had been married for thirteen years and had an eight-year old daughter, whom we will call "Ana" for purposes of our discussion. Susan was described as a "stay-at-home mom" who was active in her daughter's social and academic life. As will be developed in further detail, in the months preceding Susan's murder, she made several statements and took various steps indicating that she intended to obtain a divorce from defendant. That said, we first set forth the events that, according to testimony, occurred the evening that Susan disappeared and the next morning when defendant reported her missing. Included in this recitation are the defendant's statements to the police.

On Thursday, October 20, 2005, defendant returned home at about 6:30 p.m., as Susan was on her way out. He became upset when she would not tell him where she was going. She returned home that evening at about 8:10 p.m. When she still refused to say where she had been, the two began to argue. A neighbor, Marilyn Baxter, was leaving her home at about 8:15 p.m. when she heard what she described as "blood-curdling" screams -- that she recognized as Susan's voice -- coming from the Calleia residence. The couple's daughter, who had been in bed, came downstairs because she heard her mother screaming. Ana observed her parents go into the garage. She peeked in to watch them and believed she saw her father was trying to calm her mother down by putting his arms around her shoulders; their loud voices and the screaming continued. When Ana asked her parents what they were doing, her father, in what she described as a "normal" voice, told her to go back to bed. Unlike their routine, Ana's mother never came upstairs to tuck her in before Ana went to sleep that night.

According to defendant's statements to the police, the couple resolved their argument, and defendant went to bed between 9:00 and 9:30 p.m. Due to the couple's marital differences, they were sleeping in separate bedrooms, so he claimed that it was not until he was leaving for work the next morning at 5:30 a.m. that he noticed that Susan's car was missing. Unable to find his wife in the home, he called 9-1-1 to report her as missing.

Patrolman David D'Arcy of the Holmdel Police Department responded to the call. He arrived at the Calleia residence and asked defendant, when he opened the door, what was going on. Defendant remained silent and merely motioned the officer to enter the home. Defendant told D'Arcy that his wife was gone and explained that she had gone out the previous night without telling him where she was going. He said that he watched television while he waited for her to return. When Susan returned around 8:00 p.m., defendant admitted that they argued but he said that they resolved the issue and he went to bed. According to D'Arcy, defendant's demeanor during this encounter was "very nervous"; he was trembling and he spoke in a subdued tone.

Later that day, at approximately 3:45 p.m., Detective-Sergeant Brian Veprek and Detective Douglas Johnson went to the Calleia residence. Veprek testified that when he went to shake defendant's hand, defendant did not extend his hand in return; instead, he kept his hands covered by a long-sleeved white shirt that hung below his fingertips. Veprek also noted that defendant continually looked down and would not make eye contact.

Veprek asked defendant to go to the police station and give a formal statement. Defendant asked if that was necessary since it was "just a missing person's [sic] investigation." He also stated, "I'm not going to your house, I've seen Law and Order and NYPD Blue, and I know what happens when I'm in your house." However, when Veprek asked defendant if he would be willing to give a statement if a secretary came to his home, defendant agreed.

In his statement, defendant explained that he had called his wife's cell phone two or three times early in the afternoon the day she had gone missing. When asked why he did not call his wife's cell phone before calling 9-1-1, defendant responded that he was "in shock that she wasn't there and [he] just thought that if she wasn't there it can't be good." During the interview, defendant described his relationship with his wife as "cordial" and "friendly," but he said his marriage was "strained" and that he and his wife were not "as close as [they] used to be." He also said that they had been sleeping in separate beds for about a month. When asked whether his wife had ever asked him for a separation or divorce, defendant responded, "She says she needs her space. Those are her words, never said separated or divorce." When asked whether he or his wife had seen or consulted with an attorney, he said, "I haven't, my wife said she wanted to speak to somebody just to find out any implications about buying another house." With respect to their daughter, defendant indicated that they had discussed a joint custody arrangement. Defendant also stated that "[f]or the past couple [of] weeks things have been getting nice again" and that "[u]p until about a month ago I thought everything was good."

Throughout the interview, defendant kept his right hand below the kitchen table. He received three phone calls from his brother, Eric, which he answered with his left hand. When the interview ended and defendant was handed a printed copy of his statement for review, he took the paper off the table with his left hand and reviewed it under the table. The detectives could see his upper right arm moving as he wrote on the statement with his right hand. He initialed some of the pages but refused to sign the statement or to initial the rest of the pages and instead wrote, "I'm not [] signing all of the pages or the end without an attorney present."

As the detectives were leaving his home, defendant spontaneously said, "I think my wife was abducted at 5:30 this morning while going to Welsh Farms to get milk." When asked why he had not mentioned this during the interview, defendant responded that he "did not think it was important." According to Veprek, defendant then asked how they "were making out" on the burglaries that had occurred on Goldsmith Drive. Defendant also stated that during the summer, someone had tried to break into his house and perhaps Susan's disappearance was related to that event.

Officers Veprek and Smythe returned to the Calleia residence at 3:20 the next morning with a warrant to search the premises. Defendant, wearing the same long-sleeved white shirt that he wore during the previous day's interview, opened the front door for Veprek, kept his hands in his pockets, and asked, "Can't this wait until tomorrow afternoon?" When Veprek said that it could not wait, defendant dropped his head and stared at the ground.

At approximately 4:15 a.m., while the search was underway, defendant asked for permission to obtain a change of clothes from his closet. Veprek retrieved the clothes, and when defendant reached for them, Veprek and Smythe saw his right hand for the first time. They noticed defendant's right hand was swollen and had a laceration on one finger. When asked what had happened, defendant replied that he punched a wall in his house. Smythe asked where the wall was so that the forensic team could videotape and photograph it. Defendant "[f]or the first time . . . looked up and he stared at [us] for a good five seconds. . . . Then he looked back down at the ground." Smythe commented further that the injury "looked like it was from someone's teeth." Defendant then said:

I want to recant what I just told you. . . . I backhanded Susan in the face on Thursday night in the garage. That is why she left the residence and did not return. . . . I want to recant that. . . ...

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