On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 05-10-1857.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 6, 2011
Before Judges Carchman, Fisher and Baxter.
Defendant Debra Aquilina appeals from her May 1, 2009 conviction on charges of first-degree murder, N.J.S.A. 2C:11-3 (count one); first-degree conspiracy to commit murder, N.J.S.A. 2C:11-3/2C:5-2 (count three); third-degree possession of cocaine and heroin, respectively, N.J.S.A. 2C:35-10(a)(1) (counts five and six); and third-degree hindering prosecution, N.J.S.A. 2C:29-3(b)(1) (count seven).*fn1 After appropriate merger, the judge imposed a sentence of life imprisonment on count one, subject to the eighty-five percent parole ineligibility term required by N.J.S.A. 2C:43-7.2, concurrent to five-year terms of imprisonment on counts five and six. The judge imposed a consecutive five-year term of imprisonment on count seven.
On appeal, defendant raises the following claims:
I. THE DEFENDANT'S ORAL STATEMENTS MADE TO DETECTIVE BREIT AT THE EDNA MAHAN CORRECTIONAL FACILITY FOR WOMEN SHOULD HAVE BEEN SUPPRESSED BECAUSE THEY WERE THE RESULT OF IMPROPER POLICE "OVERREACH" AND VIOLATED THE DEFENDANT'S CONSTITUTIONAL DUE PROCESS RIGHT TO FUNDAMENTAL FAIRNESS.
II. THE DEFENDANT'S CONVICTIONS SHOULD BE REVERSED BECAUSE TESTIMONY THAT SHE FLIRTED WITH A POLICE OFFICER MINUTES AFTER HER HUSBAND WAS PRONOUNCED DEAD, AND TESTIMONY THAT THE DEFENDANT ATTEMPTED TO SEDUCE HER BROTHER-IN-LAW SHORTLY BEFORE HER HUSBAND'S DEATH, WAS ADMITTED FOR AN IMPROPER PURPOSE, AND EVEN IF RELEVANT, SHOULD HAVE BEEN EXCLUDED PURSUANT TO N.J.R.E. 403. (Not raised below).
III. DR. SINGH'S TESTIMONY THAT THE "MANNER OF DEATH WAS HOMICIDE" WAS INADMISSIBLE AS A NET OPINION BECAUSE IT WAS BASED ON HIS SUBJECTIVE BELIEF THAT MARK AQUILINA'S STATEMENT WAS TRUTHFUL. (Not raised below).
IV. THE TRIAL COURT COMMITTED HARMFUL ERROR IN DENYING THE DEFENDANT'S MOTION TO STRIKE DR. SIEK'S TESTIMONY.
A. DR. SIEK'S TESTIMONY WAS INADMISSIBLE UNDER N.J.R.E. 702 and N.J.R.E. 703.
B. DR. SIEK'S TESTIMONY VIOLATED RULE 3:13-3(c)(9).
V. THE TRIAL COURT'S "ELECTION" CHARGE WAS FLAWED AND UNDERMINED DEFENDANT'S FIFTH AMENDMENT RIGHTS. (Not raised below).
VI. THE TRIAL COURT MISAPPLIED ITS DISCRETION IN DENYING THE DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL MADE AT THE END OF THE STATE'S CASE AND THE DEFENDANT'S POST-VERDICT MOTION FOR A NEW TRIAL.
VII. THE AGGREGATE BASE CUSTODIAL TERM OF LIFE IMPRISONMENT PLUS 5 YEARS WAS MANIFESTLY EXCESSIVE.
We reject these contentions, and affirm defendant's conviction and sentence, except for counts five and six, for which only one sentence should have been imposed. We remand for merger of count six with count five.
At approximately 6:00 a.m. on February 15, 2003, the Garfield Police Department received a telephone call from defendant stating that when she awoke, she noticed that her husband Ralph Ludvik, Jr., was not breathing. A few minutes later, when Sergeant John Demko arrived at defendant and Ludvik's residence on Palisade Avenue, defendant directed him to the second floor of the home, where he saw Ludvik lying face up on the floor, wedged between a wall and the bed. Because there was no light in the bedroom, Demko dragged Ludvik to the kitchen. While Demko was in the course of doing so, defendant attempted to grab something from her husband's pocket. Demko told her to stop. At that point, defendant became upset, telling Demko she was merely trying to retrieve money that was hers. According to Demko, there were signs of rigor mortis and he believed that Ludvik had been "deceased for quite some time." Paramedics arrived shortly thereafter, and pronounced Ludvik dead at 6:18 a.m.
While Demko was in his patrol car outside defendant's and Ludvik's home completing a form to be provided to the medical examiner, defendant approached him in a "flirtatious" manner and said, "I've seen you before, I've seen you around. How are you?" According to Demko, defendant was not "crying" or "showing any signs of grief at that point in time."
At 6:30 a.m., Detective Michael Latona of the Garfield Police Department arrived at the scene and spoke with defendant, who informed him that she was Ludvik's wife and that her husband was a heroin user. She pointed to empty bags in the bedroom that appeared to contain trace amounts of heroin. In a dresser drawer, Latona also observed drug paraphernalia, including syringes, plastic tubes and a tourniquet, although Latona was unable to find the syringe that caused the apparent overdose.
Latona also interviewed James Gerritsen, who had moved into the house a few weeks earlier. Gerritsen told Latona that he had gone to sleep at 10:30 p.m. the previous night, and was awakened by defendant at 5:30 a.m. the next morning, who stated that Ludvik was not breathing. Gerritsen explained that Ludvik's temperament of late had been "somewhat odd," and Ludvik "had been more angry and not his normal self."
Latona did not interview defendant's stepson, Mark Aquilina, who also lived in the home.
A toxicology report prepared by Theodore Siek, Ph.D., at the request of the medical examiner, Dr. Sunandan Singh, attributed Ludvik's death to an overdose of heroin. Cocaine was also found in his blood, but not in an amount sufficient to have caused his death. Based on the report of the toxicologist, and the drug paraphernalia found in Ludvik's bedroom, Dr. Singh concluded that Ludvik's death was the result of an accidental drug overdose.
Singh's conclusion remained unchallenged until fifteen months later, when on May 11, 2004, the Bergen County Prosecutor's Office received a letter from Frank Baez, an inmate at the Bergen County Correctional Facility, where Mark Aquilina, defendant's son, was incarcerated on unrelated charges. Baez's letter made reference to a comment by Mark Aquilina admitting that he had been involved in a suspicious death that occurred in Garfield. Contacting the Garfield Police Department, the Prosecutor's Office learned of Ludvik's death due to a drug overdose in February 2003. After interviewing Baez, Detectives Gil Breit and Mark Bendul brought Mark Aquilina to the Bergen County Prosecutor's Office for questioning on March 4, 2005.
After receiving Miranda*fn2 warnings, Mark initially denied taking part in Ludvik's murder. After further questioning, he provided a full confession about a conspiracy to kill Ludvik, between defendant, Gerritsen and himself. Mark explained that his mother believed that if Ludvik were dead, she would inherit the house on Palisade Avenue where Mark, defendant, Gerritsen and Ludvik had been living. According to Mark, the three devised a plan "to somehow take over the house," which involved "taking care of Ralph" by "getting him out of the way." Mark explained that the only reason his mother married Ralph Ludvik was "to get her hands on the house."
Mark explained that on the day of Ludvik's death, Ludvik had driven to Paterson to buy cocaine. While he was gone, defendant and Gerritsen discussed "ways of getting rid of [Ludvik,]" and devised a plan to "give him a drug overdose." In furtherance of that plan, Mark dissolved nearly four bags of heroin, and drew the heroin solution into a syringe, knowing that such quantity was a lethal dose. Mark admitted that following a signal from defendant, he handed the syringe to an unsuspecting Ludvik, who injected the heroin into his arm. Ludvik immediately clutched his chest, and dropped to the floor unconscious. Mark explained that while Ludvik was unconscious, defendant rifled through Ludvik's pockets and removed whatever cash she could find. Afterward, he and defendant "part[ied] through the night." Shortly before 6:00 a.m., they returned to the bedroom, realized Ludvik was dead, and called the police.
In the March 4, 2005 statement that Mark provided to Detectives Breit and Bendul, he also explained that during the time his mother was married to Ludvik, she was "fooling around" with Gerritsen, and that his mother and ...