NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued telephonically April 26, 2013
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 05-05-00592.
Bruce G. Cassidy argued the cause for appellant (Bruce G. Cassidy & Associates, attorneys; Mr. Cassidy and Michael W. Landis, of counsel and on the brief).
Alexis R. Agre, Assistant Prosecutor, argued the case for respondent (Robert D. Bernardi, Burlington County Prosecutor, attorney; Ms. Agre, of counsel and on the brief).
Before Judges Fisher, Waugh, and Leone.
Defendant Philip J. Castagna appeals from his convictions for conspiracy to murder his wife Joyce and contempt for violating a domestic violence restraining order. He raises numerous challenges to his convictions and sentence. We affirm his convictions, but remand for resentencing.
The State's evidence can be summarized as follows. Defendant was the Chief of Police of Bordentown City. He also bought and sold used cars. At a body shop in early 2002, he met his co-conspirator, Gary Hall. By 2003 they became friends, visiting and telephoning frequently. In February 2003, defendant invited Hall to attend the Burlington County Chiefs of Police Installation Dinner, and "set up" Hall by arranging for him to escort Joyce's friend Joan, who subsequently dated Hall.
Defendant also helped Hall with his criminal problems. Defendant told Joyce he thought Hall was being railroaded by the Burlington City Police Department. Defendant paid Hall's fines for a theft, and introduced Hall to a lawyer to represent him on an aggravated assault charge. Defendant also helped Hall find a location to open his own body shop where he could repair defendant's used cars. Defendant introduced Hall as his cousin when trying to rent the location, helped Hall with the fire inspector and insurance agent, and loaned Hall money to get started.
Defendant visited Hall's shop almost every day. During these visits, defendant talked about his relationship with Joyce, which had become tumultuous.
After defendant had "a domestic" dispute with his wife on June 8, 2003, he left the marital home, drove to Hall's shop, and said he and Joyce had separated. Defendant told Hall that he would lose his gun, job, and pension if Joyce pursued the matter with the police, because Burlington County had "zero tolerance" for domestic violence. Defendant said that Joyce "would end up in the trunk of a car" if she "kept f*cking with his pension."
On June 15, Joyce obtained a temporary restraining order (TRO) against defendant. The TRO prohibited any contact, and forbade defendant from possessing any weapons. Defendant told Hall that, as a result, police had seized his guns and his job and pension were in jeopardy.
After the TRO, defendant and Hall would get information from Joan about Joyce's activities. Joan revealed this to Joyce. Hall warned Joan that by talking to Joyce she would ruin defendant. Hall said Joan had to stop, and she agreed. Later, defendant played Hall a phone message which showed that Joan was still talking to Joyce. Hall then threatened to break Joan's neck. Hall was arrested for threatening Joan.
On July 1, 2003, defendant went to see Joyce's uncle, Santo Celia. Defendant, very upset, told Celia that Joyce got him arrested and obtained a TRO. Defendant begged for Celia's help with Joyce "[b]ecause if she keeps f*cking . . . with my pension and my career you're going to see me on the front page of the Trentonian, " a local newspaper. Defendant said "they've taken my guns, they've taken my weapon but I can get another." Celia and his wife told Joyce about defendant's discussion with Celia. On July 11, Joyce filed a complaint with the police that defendant had violated the TRO. Charges were filed against defendant.
With both of their relationships over, defendant and Hall talked almost every day, and met in bars and strip clubs. They angrily discussed what "those b*tches" had done to them. They blamed Joan for causing Hall to lose his shop (because Hall had made her the license-holder for the shop because he was a felon who could not hold a license). Defendant blamed Joyce for his situation, and told Hall that he was going to slice Joyce up in pieces and "cut her p*ssy out."
In October 2003, Hall pled guilty to terroristic threats against Joan. At Hall's March 4, 2004 sentencing, defendant spoke on Hall's behalf, and Joyce attended the sentencing to support Joan. Defendant told the court that Hall was a "good guy" who "has had a hard life." Defendant then launched into a diatribe to the court against Joyce, calling her a "f*cking b*tch, " saying that she was the one who should be sentenced, and that this was a conspiracy against him. Defendant and Hall began taunting and threatening the women until a sheriff's officer intervened. Defendant was charged with threatening Joyce.
At defendant's May 2004 trial for his alleged July 2003 TRO violation, defendant was found guilty of harassment and contempt. The trial court sentenced defendant to probation for one year, declared that his position as chief of police was forfeited, barred him from future public employment, imposed $1, 000 in fines, and continued the restraints.
While Hall was incarcerated, defendant called, wrote, and visited Hall, sent Hall money, and told Hall of his conviction and sentencing. After Hall was released from custody in June 2004, defendant angrily complained that he had lost his job and pension because of Joyce almost every time he got together with Hall.
The situation escalated in August 2004, when a judgment of divorce between Joyce and defendant was issued. At one of his meetings with Hall in August, defendant showed a .38 caliber revolver to Hall.
Later in August, defendant invited Hall to the beach. There, defendant told Hall that he was going to kill Joyce. Defendant said, "that b*tch ruined my life, you know, she ruined your life too, it's all her fault." Defendant blamed Joyce for causing the loss of his home, his money, his pension, and Hall's shop. Defendant proposed that he would kill Joan if Hall killed Joyce. Defendant said he could kill Joyce in a drive-by shooting on a motorcycle, and wanted to get speed-loaders for his revolver. Alternatively, defendant proposed he and Hall kidnap Joyce using a van, torture her by "cutting her p*ssy out, " and kill her. Finally, defendant suggested that Hall kill Joyce himself, and discussed how Hall could evade the parking-lot cameras at her work.
Believing defendant was serious about killing Joyce, and fearing defendant was setting him up, Hall called the Burlington County Prosecutor's Office on August 25, 2004. Detective Ed Zubrzycki interviewed Hall, who told him what defendant had said at the beach. Hall agreed to cooperate in the investigation in return for immunity regarding anything revealed in the investigation.
On August 30, the detective monitored a recorded conversation between Hall and defendant that confirmed their relationship, as well as defendant's hatred of Joyce and his desire for retaliation. Officials from the prosecutor's office then provided Hall with consensual intercept equipment to record future conversations.
On September 23, officials had Hall invite defendant to meet in a motel room in which they had installed microphones and a video camera. The officials lent Hall an inoperable semiautomatic pistol. When defendant entered the room, Hall said "look what I got, " took the pistol out of a drawer, and said he would use it to kill "those b*tches." Hall proclaimed that the women were "dead" and "I'm going to kill them both." Hall said "we talked about it at the beach, " and "we talked about killing Joyce and Joanie together but I have changed my mind and will do it alone." Hall said he had plenty of ammunition in the trunk of his car and would kill Joan first and then "the main culprit, " Joyce. Defendant told Hall where Joyce worked, gave Hall directions off the Interstate, and revealed that Joyce drove a gold Sebring car. Hall wrote the information down on a card.
In a telephone conversation on September 24, Hall asked whether defendant wanted Hall to break Joyce's legs or put a bullet in her head. Defendant replied, "you know what to do, just do it right." Defendant said Hall would be a hero after killing "that b*tch." They again discussed how to evade being caught on camera. Hall attempted to record this conversation but the equipment malfunctioned.
On October 1, in a recorded conversation, Hall asked defendant if he still wanted Hall to kill Joyce, because Hall was "at that point." Defendant replied that she was a "f*cking b*tch" and a "piece of sh*t, " and that "you know what you should do." Defendant asked, "Do you want your orders?" and Hall replied, "I want my orders." Defendant responded, "Carry out, accomplish the mission." Hall said he would, and defendant replied, "yeah, well, why don't you do your job?" Hall testified that he and defendant, who had both been in the Army, used army lingo and code phrases such as "Code Alpha" and "Alpha Bravo" to describe killing Joyce.
The next day, in a recorded conversation, Hall told defendant that he would go on "a mission real soon." Hall said, "it's f*ckin' Alpha Bravo, " and defendant replied "ok." Hall said that Joyce and Joan "ruined my life and yours and there is no reason they are going to get away with it, " and defendant responded, "take care of it."
On October 4, in a recorded conversation monitored by detectives, Hall told defendant, "It's code alpha, brother. Do you want me to do it?" Defendant answered "yep." Hall said Joyce would not make it through the weekend and defendant should get his alibi ready.
On October 7, in a recorded call monitored by detectives, Hall told defendant, "I'm taking care of that tonight, man. Joyce is my problem now." Defendant agreed. Hall said "let me handle that, " and defendant replied, "please do." Hall told defendant that after the killing he would drive to Florida via the "South of the Border" rest stop.
The next day, in a recorded conversation monitored by officers, Hall called defendant, saying he had just stopped at the rest stop. Hall stated that Joyce was "gone, " "done, " and "rotting in the trunk of her car right now." Hall identified the truck stop where the defendant could find Joyce's car with the body in it if he wanted to take a look. Defendant hung up and then called back three minutes later, saying that he had called from another phone so no one could overhear him. Hall repeated that Joyce was "done, " that he "put five bullets in her and blew her f*cking head right off." Hall again told defendant where he could find the body.
That night, in a recorded conversation, defendant called Hall. In the presence of a detective, Hall repeated that he "blew her f*cking head right off, " and that her body was at the truck stop. Hall said that defendant better keep his mouth shut. Defendant agreed.
Later that night, police arrested defendant for conspiracy to commit murder. Defendant responded, "conspiracy, another chapter in my life." When asked what happened to Joyce, defendant replied, "I have no idea what may have happened to Joyce."
On May 10, 2005, a grand jury indicted defendant for first-degree conspiracy between August 12 and October 8, 2004, to commit first-degree murder, N.J.S.A. 2C:5-2a(1), and fourth-degree contempt in violation of a domestic violence restraining order during that period, N.J.S.A. 2C:29-9b. It also indicted him for second-degree aggravated arson, N.J.S.A. 2C:17-1a(2), and fourth-degree contempt in violation of a domestic restraining violence order, N.J.S.A. 2C:29-9b, based on a fire set at Joyce's house on July 4-5, 2003.
On August 21, 2006, we reversed defendant's May 2004 conviction for harassment and contempt, finding insufficient evidence that he intended Celia to communicate a harassing message to Joyce. State v. Castagna, 387 N.J.Super. 598 (App. Div.) (Castagna I), certif. denied, 188 N.J. 577 (2006).
On February 8, 2007, the State's motion in limine seeking to admit evidence was denied. The State appealed. On May 12, 2008, we affirmed exclusion of evidence of the FRO and the acts of domestic violence that led to it, but held admissible evidence of the TRO, defendant's conversation with Celia, the criminal charges filed by Joyce, and defendant's 2004 conviction and sentence. State v. Castagna, 400 N.J.Super. 164 (App. Div. 2008) (Castagna II).
The first trial commenced on February 18, 2009. On March 19, the jury acquitted defendant of aggravated arson and the related contempt. The jury could not agree on the charge of conspiracy to commit murder and the related charge of contempt, and a mistrial was declared.
The second trial commenced on October 5, 2010, before another judge (the trial judge). The jury convicted defendant on the charges of conspiracy to commit murder and the related contempt.
On the conspiracy offense, the judge sentenced defendant to seventeen years in prison, required him to serve 85% of that sentence prior to parole eligibility, and imposed a mandatory five-year period of parole supervision. The judge sentenced him to a concurrent fifteen months in prison on the contempt offense.
Defendant filed this appeal, raising the arguments:
A. Defendant's Multiple Requests to Dismiss the Indictment Should Have Been Granted Because The Prosecutor's Presentation Of This Matter Before The Grand Jury Was Based On Egregious Prosecutorial Misconduct To Improperly Influence The Grand Jury's Decision to Indict Defendant.
B. The Trial Court Committed Reversible Error When It Denied Defendant's Motion For Change Of Venue From Burlington County Since Pre-Trial Publicity During Both Trials Prevented The Empaneling Of An Impartial Jury In Burlington County.
C. The Trial Court Committed Reversible Error When It Denied Defendant's Motion For The Court To Order A Psychological Evaluation Of Gary Hall To Determine If He Was Competent And Whether He Understood The Obligation Of A Witness To Tell The Truth Under Oath.
1.Gary Hall's Mental Instability and Failed Participation In the Witness ...