On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 04-10-0985.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo, Grall and Skillman.
Defendant William Boston and his co-defendant Thomas S. Nevius were indicted and charged with first-degree murder, N.J.S.A. 2C:11-3a(1)-(2);*fn1 first-degree felony murder, N.J.S.A. 2C:11-3a(3); second-degree burglary, N.J.S.A. 2C:18-2; third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d; second-degree conspiracy to commit murder, N.J.S.A. 2C:11-3a(1)-(2) and N.J.S.A. 2C:5-2; and third-degree conspiracy to commit burglary, N.J.S.A. 2C:18-2 and N.J.S.A. 2C:5-2. The charges against defendant and Nevius were severed for trial, and a jury found defendant guilty on all counts.
The judge merged defendant's convictions for felony murder, possession of a weapon and conspiracy to commit murder with his conviction for murder, and his conviction for conspiracy to commit burglary with his conviction for burglary. He sentenced defendant to a term of imprisonment for fifty-five years for murder and a concurrent seven-year term of imprisonment for burglary. Both sentences are subject to terms of parole ineligibility and supervision required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The judge also imposed the appropriate fines, penalties and assessments.
The jury to which co-defendant Nevius was tried found him guilty of first-degree purposeful or knowing murder, felony murder, second-degree burglary, and third-degree conspiracy to commit burglary, and he was sentenced to an aggregate term of sixty-five years in prison, subject to NERA. This court affirmed his conviction and sentence in an unpublished opinion. State v. Nevius, No. A-5438-07 (App. Div. June 18, 2012).
Defendant presents these issues on appeal:
I. THE TRIAL COURT'S RULING ADMITTING THE DEFENDANT'S STATEMENTS INTO EVIDENCE SHOULD BE REVERSED.
A. THE STATE FAILED TO PROVE THAT THE DEFENDANT'S WAIVER OF HIS MIRANDA RIGHTS WAS KNOWLING [sic], VOLUNTARY, AND INTELLIGENT.
B. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING DEFENDANT'S MOTION TO REOPEN THE MIRANDA HEARING BECAUSE THE COURT'S RULING WAS INCONSISTENT WITH ITS OBLIGATION TO APPLY A REASONED "TOTALITY OF THE CIRCUMSTANCES" ANALYSIS IN FINDING THAT THE DEFENDANT'S STATEMENTS WERE ADMISSIBLE BY "PROOF BEYOND A REASONABLE DOUBT."
II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR AND DEPRIVED THE DEFENDANT OF HIS RIGHT TO PRESENT A COMPLETE DEFENSE BY PRECLUDING TESTIMONY THAT THE DEFENDANT DID NOT HAVE THE COGNITIVE CAPACITY TO WAIVE HIS MIRANDA RIGHTS.
III. THE TRIAL COURT COMMITTED REVERSIBLE ERROR AND DEPRIVED THE DEFENDANT OF HIS RIGHT TO CONFRONTATION BY RESTRICTING TRIAL COUNSEL'S RECROSS-EXAMINATION.
IV. THE DEFENDANT'S CONVICTIONS SHOULD BE REVERSED BECAUSE TESTIMONY THAT THE DEFENDANT WAS PERFORMING
"COMMUNITY SERVICE" WAS ADMITTED FOR AN IMPROPER PURPOSE AND SHOULD HAVE BEEN EXCLUDED PURSUANT TO N.J.R.E. 403.
V. THE TRIAL COURT'S FAILURE TO GIVE THE JURY THE REQUESTED CAUTIONARY INSTRUCTION ON THE FAILURE BY THE POLICE TO RECORD THE DEFENDANT'S STATEMENTS WAS REVERSIBLE ERROR BECAUSE THE DEFENDANT HAD A CONSTITUTIONAL DUE PROCESS RIGHT TO THE INSTRUCTION.
VI. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE DEFENDANT'S MOTION FOR [A] MISTRIAL MADE PURSUANT TO STATE V. GILMORE.
VII. THE CUMULATIVE EFFECT OF THE ERRORS INVOLVING THE WRONGFUL ADMISSION OF A LETTER PURPORTEDLY SIGNED BY THE DEFENDANT, IMPROPRIETY DURING THE PROSECUTOR'S CROSS-EXAMINATION OF DR. LATIMER, THE ADMISSION OF IMPROPER REBUTTAL TESTIMONY, AND IMPROPER REFERENCES TO THE DEFENDANT'S FAILURE TO TESTIFY DEPRIVED THE DEFENDANT OF A FAIR TRIAL. (RAISED IN PART AND NOT RAISED IN PART BELOW).
A. THE TRIAL COURT ERRED IN ADMITTING THE LETTER INTO EVIDENCE BECAUSE DEFENDANT'S SIGNATURE WAS NOT PROPERLY AUTHENTICATED.
B. THE PROSECUTOR COMMITTED IMPROPRIETY DURING HIS CROSS-EXAMINATION OF DR. LATIMER.
C. THE TRIAL COURT MISAPPLIED THE CONCEPT OF REBUTTAL TESTIMONY.
D. THE DEFENDANT'S RIGHT TO REMAIN SILENT WAS IMPROPERLY MALIGNED BY DETECTIVE O'NEILL AND THE TRIAL COURT. (NOT RAISED BELOW).
VIII. THE 55 YEAR BASE CUSTODIAL TERM IMPOSED ON THE DEFENDANT'S CONVICTION FOR MURDER ON COUNT ONE WAS MANIFESTLY EXCESSIVE.
Ruth Walker was the victim of these crimes. When she was killed, she was fifty-two years old and residing alone in an apartment in the Chestnut Square apartment complex in Vineland. Defendant was twenty-three years old and lived in the first-floor apartment adjacent to Mrs. Walker with his mother, father and a friend, Damian Stratton.
On the day she was killed, July 30, 2002, Mrs. Walker got home at 8:22 p.m. Her arrival was captured on video by Chestnut Square's surveillance camera. She was planning to have dinner ready for her sons, their families, and her daughter and her boyfriend when they returned to Vineland from a day trip to Wildwood. Her daughter had called at 8:19 p.m. to let her know they were leaving Wildwood, but when she called at 9:30 p.m. to say they were in Vineland, Mrs. Walker did not answer.
Upon arriving at their mother's apartment, her children saw her car parked outside, but the lights in the apartment were off. Mrs. Walker did not come to the door when they knocked, and after several minutes one of her sons went to his home, got a knife and returned and picked the lock. When the family entered and turned on the lights in the apartment, her daughter's boyfriend found Mrs. Walker lying on her back on her bedroom floor.
The room was in disarray: clothes were thrown everywhere; the bed was "messed up"; the closet door was on the floor; and one of the legs supporting a night table was broken off, and there was a lot of blood. Except to check for a pulse, the family did not move Mrs. Walker. Her daughter ran outside and screamed for help and a son called 911.
Dr. Elliott Gross, the medical examiner for Cumberland County, performed an autopsy. Mrs. Walker had cuts on each hand and bruising on the shoulder. In addition, she had six stab wounds. While most of the stabs were superficial, one had severed her jugular vein. The severance of the jugular vein allowed air from the exterior of her body to rush into her vascular system and reach her heart. This "air embolism . . . getting into the heart and blocking circulation" would have caused death quickly. Because blood from her stab wounds flowed downward and between her breasts, Dr. Gross concluded that Mrs. Walker was standing when stabbed.
Dr. Gross found evidence of a second potential cause of death - strangulation accomplished by a person standing behind her. Mrs. Walker's hyoid bone was fractured, and there were petechial hemorrhages in her eyes. In addition, there were abrasions on the front and side but not the back of her neck; those abrasions were in the pattern of the necklaces she was wearing. The location of the pattern led Dr. Gross to conclude Mrs. Walker was strangled from behind.
In Dr. Gross's opinion, the strangulation and severance of the jugular vein were two "competing" and "virtually simultaneous" causes of Mrs. Walker's death, that would require action by "more than one individual." According to Dr. Gross, it would have been "virtually impossible" for one person to strangle and stab Mrs. Walker from behind, because she was five-feet and six-inches tall, weighed 225 pounds and had defensive wounds on her hands indicative of struggling. Thus, in his opinion, she was stabbed by a person standing in front of her and strangled from behind.
A forensic pathologist retained as a defense expert agreed that Mrs. Walker was strangled and stabbed. He concluded, however, that the medical evidence made it impossible to determine whether the cause of death was strangulation or the air embolism resulting from the severance of the jugular vein, which would have caused death within seconds. In his opinion, the medical evidence did not permit a determination as to whether more than one person killed her.
Both Dr. Gross and the defense expert considered whether the stabbing could have been done with a knife that Mrs. Walker's daughter identified as exactly like one her mother kept in her kitchen. While Dr. Gross could not be certain that this was the knife used, in his opinion that knife was consistent with Mrs. Walker's stab wounds. Defendant's expert fully agreed with those conclusions.
The police officers who gathered evidence from the crime scene found a cut in the screen of Mrs. Walker's kitchen window, which was located in the rear of her apartment, an area not monitored by surveillance cameras. The cut was in a spot that allowed access to the window's handle. They also found a ripped, bloody T-shirt on Mrs. Walker's bed and a palm print on her dresser.
The palm print was later identified as that of co-defendant Nevius, and Nevius's DNA was recovered from the bloody T-shirt left on Mrs. Walker's bed. The State's theory was that the T-shirt was used to strangle her. No physical evidence linking defendant or any person other than Nevius was found at the scene of the crime.
The knife identified by Mrs. Walker's daughter, however, was linked to defendant. It was given to the police on August 8, 2002, and found the day before by Jose Lopez, the maintenance manager of the Park Town apartment complex located adjacent to the Chestnut Square complex. Lopez found the knife in apartment 37A, which was vacant at the time of the murder and undergoing renovations. On July 30, Lopez cleared the kitchen cabinets inside and out and sprayed powdery boric acid on them to address a roach infestation. A week later, he found the knife, which was clean, on top of a cabinet in the kitchen. According to Lopez, vacant apartments were kept locked when he was not working in them and the keys were secured when not in use.
Defendant did community service in apartment 37A on the day Mrs. Walker was killed and on the day after her death. Gina Mave, Park Town's rental manager, kept records of defendant's hours and assignments to send to the courthouse. They reflected that defendant worked from 1:15 p.m. to 4:30 p.m. on July 30, cleaning and scraping paint in apartment 37A, and on July 31, sweeping floors and cleaning kitchen cabinets in that apartment. The knife was discovered after the police had charged defendant with the crime.
On the night Mrs. Walker was killed, officers interviewed her neighbors to gather any information they had. Defendant was on the porch leading to his apartment at the time, and Detective Louis Negron and Lieutenant Steve Cleveland both had conversations with him. Defendant told Detective Negron that:
he and his friend Tom were on the porch when Mrs. Walker got home; he thanked her for giving his mother mangos; Tom left; and defendant then went to his apartment and "hung out" with his stepfather and Damian Stratton on the patio in the rear. Defendant did not tell Detective Negron Tom's surname; he said Tom had not done anything wrong.
Defendant spoke to Lieutenant Cleveland later that night, and told him he knew Mrs. Walker. He agreed to speak to Lieutenant Cleveland at the police station and did at about 1:00 a.m. There, Lieutenant Cleveland asked him when he last saw Mrs. Walker. Defendant asked, "Do you mean the last time I saw her alive?" Defendant said he had seen Mrs. Walker between two and three o'clock in the afternoon and thanked her for the mangos. He did not answer when Lieutenant Cleveland asked if he saw Mrs. ...