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State v. Dow

Superior Court of New Jersey, Appellate Division

August 9, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
SUSAN M. DOW, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 12, 2012

On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 06-12-1640.

Joseph E. Krakora, Public Defender, attorney for appellant (Jack L. Weinberg, Designated Counsel, on the brief).

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Emily R. Anderson, Deputy Attorney General, of counsel and on the brief).

Before Judges Grall, Simonelli and Accurso.

PER CURIAM

A jury found defendant Susan M. Dow guilty of murder, N.J.S.A. 2C:11-3a(1)-(2), and possessing a firearm with purpose to use it unlawfully against the person or property of another, N.J.S.A. 2C:39-4a. After merging the convictions, the judge imposed the minimum sentence — a thirty-year term of imprisonment without possibility of parole. N.J.S.A. 2C:11-3b(1).[1]

Defendant appeals urging us to reverse her conviction on several grounds. She argues:

I. THE TRIAL COURT ERRED WHEN IT FAILED TO CHARGE THE LESSER INCLUDED OFFENSES OF AGGRAVATED MANSLAUGHTER, RECKLESS MANSLAUGHTER AND PASSION/PROVOCATION MANSLAUGHTER.
A. The doctrine of Invited Error does not apply.
B. There existed a rational basis in the record to charge the lesser included offenses of aggravated manslaughter, reckless manslaughter and passion/provocation manslaughter.
II. THE PROSECUTOR'S REMARKS DURING OPENING AND CLOSING ARGUMENTS CONSTITUTED PROSECUTORIAL MISCONDUCT DEPRIVING THE DEFENDANT OF A FAIR TRIAL. (Not raised below).
III.THE COURT ABUSED ITS DISCRETION WHEN IT GRANTED THE STATE'S MOTION TO ADMIT INTO EVIDENCE THE SUICIDE NOTE OF OCTOBER 27, 2006. EVEN IF PROPERLY ADMITTED, THE COURT FAILED TO CHARGE THE JURY ON THE PROPER USE OF THE SUICIDE NOTE. THE COURT FURTHER ABUSED ITS DISCRETION IN PERMITTING THE STATE TO INTRODUCE THE TWO ANONYMOUS LETTERS TO EASTERN LIFT TRUCK COMPANY. (Partially raised below).
A. The court erred in admitting the suicide note.
B. The court failed to instruct the jury on the proper use of this evidence concerning the suicide attempt.
C. Admission of the two anonymous letters to Eastern Lift Truck Company constituted reversible error.
IV. THE COURT SHOULD HAVE ISSUED SUA SPONTE AN ADVERSE INFERENCE CHARGE REGARDING THE STATE'S DISCOVERY VIOLATION OF DESTROYING THE DETECTIVE[']S HANDWRITTEN NOTES UPON COMPLETION OF THEIR TYPEWRITTEN REPORTS. (Not raised below).

The State's theory of the case was that defendant shot and killed her former lover, William Michael "Mike" Seidle, out of bitterness and malice over their break-up and then, with consciousness of her guilt, attempted to avoid prosecution and punishment. The theory of the defense was that the State failed to prove that she killed Seidle.

On October 26, 2007, Seidle was shot three times and died as a consequence. The shooting occurred in his home in Cinnaminson, which he shared with defendant until the week before he was killed. Based on the location of the entry and exit wounds left by the bullets, the medical examiner concluded that the last shot — one to his chest — was fired while he was lying on his back on the floor of his home. The medical examiner further concluded that Seidle expired sometime between 8:30 and 11:30 p.m. on October 26. No fingerprints matching defendant's were recovered from his home, and there was nothing in the house suggesting a struggle.

Defendant's car, apartment and rented storage unit were searched, but no evidence of defendant's possession of a gun or ammunition and no incriminating physical evidence was found in those locations. The murder weapon was never located.

On the evening Seidle was shot, he visited his son Justin at his home. But Deborah Waters was the last person to speak to Seidle. They spoke while Seidle traveled from Justin's house to his own, and their conversation continued for about fifteen or twenty minutes after he got home. It ended abruptly when Seidle said, "Holy, fuck, holy, fuck" and promised to call Waters back. He never called.

Justin found his father's body the next morning. His visit was prompted by a call at about 8:30 a.m. from his father's co-worker and former girlfriend, Andrea Daniels. Seidle had not reported for work at 6:30 a.m., and Daniels, concerned that he had not appeared or called, asked Justin to check on him.

When Waters learned Seidle had been killed, she contacted the police and reported that a woman with a husky voice and an "English accent" left two phone messages for her. Defendant, who was born in England, has a British accent. Both messages instructed Waters to stay away from the caller's man. In the second message, which was left on October 19, the caller identified herself as "Susan Day" and Seidle's fiancee. Waters had saved that message, and played it for the police, who made a recording that the jury heard.

Defendant had dated Seidle and was living with him while he was seeing Waters. On October 23, Seidle told his landlord that defendant had moved out, and on October 24 defendant went to the landlord, said she had moved and inquired about whether she had any financial obligation under the lease, which she did not. From October 21 through the morning of October 26, there were ninety phone calls placed either from defendant's phone to Seidle's or Seidle's phone to hers.[2]

The couple's neighbors had not seen or heard anything suggestive of any discord or disagreement while they were living together. Neighbors reported them conversing quietly on the steps of their front porch and enjoying a bonfire in the backyard. By all accounts, they were peaceful and quiet neighbors. The woman who lived across the street saw defendant smoking in front of the house on several occasions, had joined her and found her to be friendly.

Several of the neighbors saw defendant outside Seidle's home after she moved. The woman who lived across the street saw defendant there between 9:00 a.m. and 11:00 a.m. on the morning defendant was killed. Although she did not mention it when she first spoke to the police, at trial she testified that she also saw defendant's car in the driveway on the evening of October 26.

Seidle's employer contacted the police after hearing about the homicide. He gave them two typed and anonymous letters disparaging Seidle, which he received between October 23 and October 26. In the first letter, in which Seidle was identified only as "Mike" and by the number on his company van, the author advised of his or her concern about Mike's drinking, sleeping and smoking something in a pipe in the van. Although Seidle's boss was shocked and doubted the veracity of the accusations, he had Seidle take a drug test, which indicated Seidle was positive for marijuana. The second letter commenced with a reference to the first — "I am again contacting you regarding Mike Sidel [sic]." It advised that Seidle had said he failed a drug test and bragged about getting away with it.

There was no evidence linking defendant to the first letter, but Mark Glenn, an employee of the printing store from which the second letter was faxed, recalled that the woman who sent it had asked him for help. Although Glenn did not remember the woman when first shown defendant's photograph, while the officer was interviewing his co-workers, Glenn said the photograph was of the woman he helped. According to Glenn's testimony at trial, the woman had a Ukrainian or Russian accent and "spiky" hair, which appeared to be "moussed" as defendant's hair was in the photo. The officer who interviewed Glenn said Glenn told him about the woman's accent but said she had shoulder-length hair.

Glenn testified that he thought he would recognize the woman's voice if he heard it again. And, at the State's request defendant stood before the jury and said, "Okay. Help me fax this." Upon hearing her utter those few words, Glenn said defendant's voice "sound[ed] like any other voice really."

At 4:25 a.m. on October 27, defendant left a phone message for her friend Susan Hershock. She said she was "going away" and going to "get out of this situation, " but went on to say that Mike was abusive, had been diagnosed as bipolar, was smoking pot and drinking and hit her every time she tried to leave. Reporting that she was black and blue, defendant mentioned that everything had gone downhill since she left her former boyfriend, Bill. Promising to call back and telling Hershock not to worry about her, defendant ended the message.

Seidle's death was reported in the newspaper on October 28, and on October 29 defendant attempted suicide. Officers who went to defendant's home to execute a search warrant that day found her lying unconscious on the floor, bottles of pills and a suicide note.

Defendant addressed the suicide note to Hershock and another friend Rose. As she had in the phone message she left for Hershock, defendant disparaged Seidle and referred to Bill. The note states:

Dear Sue and Rose,
I love you both so very much, you are the best things that ever happened to me. I have gone away to get away from Mike. He is a drunk and beats me every time I try to leave, I am so ashamed. My life has turned out to be a big mess. I should have never kicked Bill out. I don't love him anymore but I am sorry we ended up the way we did. He came over on Tuesday and he is furious with Mike. I am black from head to toe from beatings but Bill is going to have someone fix him, he knows a lot of devious people from the hood. If anything happens to me I give Susan Hershock the authority to handle my assets. My checkbook is in my bag, use it to bury me. . . . No funeral, just a white casket. Please promise not to burn me. My headstone is white or pale and should read Susan Margaret[, ] mother of Lauren. At peace at last. No last name please[, ] I hate it. Bury me in Cherry Hill, Rt 70 [and] Cooper Landing Rd if you can. . . . Mike's Dr Hickey in Medford diagnosed him last week as Bi-poler [sic] (accute) [sic] and sent him to a PSC Dr[, ] he was also getting councelling [sic], AA [and] pills to stop smoking pot. But he drank again and came round and dragged me around the parking lot crying. He is a very sick person [and] I don't want to be a victim. I am so sorry and very ashamed of what I have become.
Love always Susan

Bill testified for the State at defendant's trial. He denied any involvement in Seidle's murder and said he had seen but never even met Seidle. When Hershock visited defendant in the hospital following her suicide attempt, defendant told her she attempted to kill herself because it was the anniversary of her daughter's death.

Those who saw defendant after her attempted suicide noted a mark on her nose but they described the mark differently — an abrasion, a large abrasion, a rug burn, a scab, a wound, a lesion, a cut, a "herpetic growth" or possibly "an infection." A checklist completed to describe defendant's physical condition on admission to the hospital noted no hematoma, injury, laceration, unexplained abrasions or open wound. It indicated that defendant had "dry skin" and an "ulcer."

The police obtained a slightly blurred picture of defendant's face captured by a video camera in a convenience store the day before Seidle was shot. It showed no imperfection on the skin of defendant's nose.

The State used the condition of defendant's nose and a stain on the front of Seidle's shirt that included a mixture of three people's DNA to submit that she was standing over defendant at the time the last shot was fired. Lynn Crutchley, a forensic scientist qualified as an expert in DNA testing, analyzed stains on the shirt and T-shirt Seidle was wearing when he was shot and compared the DNA found in those stains to that collected from Seidle and defendant.

Crutchley explained that by comparing a person's DNA with DNA extracted from evidence, a scientist can determine that: the person is excluded, meaning they are not the source of the DNA found in the evidence; determine that the person is included; determine that the person is the source of the DNA; or conclude that the evidence is inadequate to permit any conclusion.

"Within a reasonable degree of scientific certainty, " Crutchley concluded that Seidle was "the source of the DNA profile obtained from" specimens taken from stains on his shirt and T-shirt, respectively specimen 3-2 and 7-2.[3] Crutchley determined that a second stain on Seidle's outer shirt, specimen 3-1, had "a mixture" of three people's DNA. Comparing those three strains against defendant's and Seidle's respective samples, Crutchley determined that neither of them could be excluded as contributors to that mixed stain. She explained that defendant was one of every 1450 African Americans, one of every 1420 Caucasians and one of every 1530 Hispanics that could not be excluded as contributing to this stain. Crutchley knew that one of the contributors, but she could not say which one, left DNA in the form of blood. The other DNA could have been from the contributors' saliva, semen or skin cells left on the fabric by one who handled the shirt, even while washing or folding it.

Crutchley clarified that a mixture of DNA did not mean that all of the DNA detected in the mixture was left at the same time. She further explained that she could not say with a reasonable degree of medical certainty that any substance in the mixed DNA stain came from defendant.

I

We turn to consider defendant's challenge to the portions of the State's opening and closing statements addressing the DNA evidence. "'[T]o justify reversal, the prosecutor's conduct must have been clearly and unmistakably improper, and must have substantially prejudiced the defendant's fundamental right to have a jury fairly evaluate the merits of his or her defense.' State v. Harris, 181 N.J. 391, 495 (2004) (citation, internal quotation marks and editing marks omitted)." State v. Ingram, 196 N.J. 23, 43 (2008).

This standard is a "'fair trial' test." State v. Timmendequas, 161 N.J. 515, 575 (1999), cert. denied, 534 U.S. 858, 122 S.Ct. 136, 151 L.Ed.2d 89 (2001). Where there is no objection to the prosecutor's statements at trial, defendant cannot prevail without showing plain error — error clearly capable of prejudicing defendant's right to a fair trial. Id. at 576-77. A failure to object is relevant to the fair trial standard in two ways. It "indicates that defense counsel did not believe the remarks were prejudicial at the time, " and it "deprives the court of the opportunity" to address and cure the error injected by the prosecutor's deviation from his or her duty "'to ensure that justice is achieved, '" which exists whether or not defense counsel objects. Id. at 576 (quoting State v. Long, 119 N.J. 439, 483 (1990)).

Defendant submits that the prosecutor crossed the boundaries separating permissible and impermissible advocacy. Opening statements should be limited to what the prosecutor intends to prove, and closing statements should be limited to argument on the evidence introduced and the reasonable inferences available from it. State v. Echols, 199 N.J. 344, 360 (2009) (opening); State v. Frisby, 174 N.J. 583, 593-94 (2002) (closing).

During the State's opening, the prosecutor stated:
The evidence will show in this case that on October 26, 2006, an injured Susan Dow stood over William Mike Seidle and fired the last of three shots into his chest and killed him. . . . The evidence will show that the last thing he saw as he left this earth was the face of an injured Susan Dow.
Unfortunately for [defendant] she knew what you will learn over the course of this trial. What that is, is that as fate would have it, she left part of herself at that crime scene. When . . . the police went to [defendant's] residence . . . in addition to her suicide note, they also found a horrible gash on her nose . . . .
They took a swab from [the victim]'s work shirt. . . . [T]hey took a swab from that to see if they could get anything that would link [defendant] to the murder scene. Low [sic] and behold [defendant]'s DNA profile is mixed within the blood on the shirt of [the victim]. This is the evidence that you'll hear.

[(Emphasis added).]

The prosecutor's characterization of the DNA evidence misstates what the DNA evidence showed, which was not that defendant's DNA was mixed with the blood, but that she could not be excluded as a contributor to the DNA stain based on her DNA profile. Similarly, there was no evidence even suggesting that defendant had a "horrible gash" on her nose. Thus, the prosecutor's exaggerated description was inappropriate.

The prosecutor's closing argument is more concerning. We refer to the portion of his summation addressing the DNA evidence and defendant's "injured" nose. He argued:

The DNA evidence is also in and of itself is a so what? It is a science of inclusion and exclusion. It's the nature of the science. If you remember the scientist said Mr. Seidle who's lying presumably in his own blood, the language of the science was he cannot be excluded as a contributor to the blood. That's what she said. Why is that? Because that's the nature of the science. It's inclusion and exclusion. You never say that's his blood. That's not the way it works. [Defendant] was not excluded. Her DNA profile was not excluded. Now that in and of itself does not mean anything because as was a fact, it was 1 in 1400 which means 10 million other people could have been the contributor. However, however, it doesn't become relevant until she is injured, until there's some indication of how it got there because it could have got there by casual contact. It could have got there by touching, could have gotten in any number of benign ways but when you look at all the evidence, it's there in Mr. Seidle's blood stain. Okay?
If you're still with the so what, lets talk about what [the medical examiner] said . . . . [He] tells you he's shot from the front. Common sense tells you he's shot from the front. . . . He says the first shot would have caused him to turn, the second shot would have put him down and then the third shot would have finished him off.
Now what is the significance of that? . . . [H]e was on the ground, okay? . . .
And what's the significance of that? . . . [A]s Mr. Seidle's lying on the ground someone's standing over him shooting him . . . . And that's a so what, okay? That's a so what.
Except for the fact that [defendant] did leave something of herself there. Now whether it's a gash or a cut or a herpetic growth, she didn't have that injury the day before. It corroborates why her DNA profile was there. Remember, Mr. Seidle wasn't excluded and he wasn't included. He wasn't said to be the person who was bleeding. It's the nature of the science. Her DNA profile is there and the injury explains why it is there. That's why it's there.
[(Emphasis added).]

This argument is improper because its implication is that the prosecutor has special knowledge about the science and about what the experts will and will not say. He advised the jurors, that the scientists "never say that's his blood."

The prosecutor's description of the science is improper for another reason. It is at odds with Crutchley's testimony. The expert testified that scientists can determine that a person is the source of the DNA, and Crutchley concluded that Seidle's DNA was in two other stains she compared with his DNA. Thus, she did say, within a reasonable degree of certainty, that the blood in those stains was Seidle's blood. Contrary to the last three sentences of this portion of the argument addressing the stain that had DNA from three contributors, Crutchley's conclusions about defendant's and Seidle's DNA were the same. The prosecutor plainly suggested that Crutchley's conclusions differed: Seidle "wasn't excluded and he wasn't included"; defendant's "DNA profile is there and the injury explains why it is there."

Prosecutors may respond to defense counsel's closing argument. See State v. Smith, 212 N.J. 365, 404-08 (2012), cert. denied, ___U.S. ___, 133 S.Ct. 1504, 185 L.Ed.2d 558 (2013). In this case, defense counsel stressed, accurately, that the State's DNA expert had not said that defendant left DNA but had said that defendant "could not be excluded." Although he went on to add that the DNA evidence was "useless, " that statement did not give the prosecutor license to suggest he knew, contrary to the expert's testimony of the science, what scientists "never say" or to contradict the expert's explanation of her findings. A prosecutor's legal or factual assertions must be "accurate" and "confined to the evidence revealed during the trial and reasonable inferences to be drawn from that evidence." State v. Smith, 167 N.J. 158, 182 (2001); see also State v. Ferro, 128 N.J.Super. 353, 362 (App. Div.) (finding improper an argument that included the prosecutor's opinion on the weight of the evidence in a case before the jury relative to the weight of the evidence he had seen in other cases), certif. denied, 65 N.J. 566 (1974).

The prosecutor's explanation was misleading for another reason. It suggests a link between defendant's injury and the DNA that was not supported by the evidence. There was no evidence that the irregularity on the skin of defendant's nose, whatever it may have been, supported an inference that it was oozing or bleeding so as to allow defendant's DNA to drip from it and onto Seidle's shirt while she stood above him in the position of the person who fired the shot.

The misstatements were significant to a critical issue in the case. The State had evidence of motive and opportunity, and there was no evidence raising a genuine question about the shooter's intent to kill. The critical question was whether defendant was the one who fired that shot and the prosecutor's argument misstated evidence pertinent to that issue.

Where a prosecutor's improper argument goes to a critical issue and "interfer[es] with the jury's right to make the" critical determination, it is egregious and has the clear capacity to yield "an unjust verdict." State v. Frost, 158 N.J. 76, 88-89 (1999). "The impact of violating a defendant's right to a fair trial cannot be measured by, or weighed against, the quantum of evidence bearing upon his or her guilt." Id. at 87.

In this case, due to the absence of an objection, the jurors were given nothing beyond the general instruction on the significance of summations. While a general instruction directing the jurors "to disregard the attorneys' comments on the evidence during summation if those comments conflicted with their recollection of the evidence" is sometimes deemed adequate to "ameliorate potential prejudice caused by remarks that are only slightly improper, " id. at 86-87, this line of argument was not of that ilk. The prosecutor's repetitive assertions about defendant leaving something of herself at the crime scene supported with argument that distorted and conflicted with the expert testimony and the condition of the skin on her nose was critical and warrants reversal. It was improperly offered to support what the prosecutor said he would prove in his opening statement — that the last thing Seidle "saw as he left this earth was the face of an injured Susan Dow."

II

Our decision that defendant's convictions must be reversed does not rest on the prosecutor's argument alone. Defendant argues that the suicide note was admitted without adequate evaluation of the evidence suggesting reasons for attempted suicide other than consciousness of guilt or an effort to avoid prosecution or punishment, as required by State v. Mann, 132 N.J. 410 (1993). She further contends that the judge erred by failing to give the jurors instruction on consideration of the attempted suicide as mandated by Mann. We agree.

As previously noted, defendant told Hershock that this attempt was related to the anniversary of her daughter's death. It was not her first suicide attempt. By stipulation, records of her hospitalization following a drug overdose in the first week of December 2005 were admitted into evidence. Those records report a history of "major depressive disorder." In July 2006, defendant wrote a suicide note addressed to Hershock and Rose in which she asked that her headstone read "Susan Margaret[, ] mother of Lauren. At peace at last." In that note, she said that her former boyfriend "Bill" had pushed her over the edge, would not leave her alone and was stalking her. The July 2006 suicide note was introduced at the pre-trial hearing on the admissibility of the note at issue here. It was not admitted into evidence at trial.

"Evidence of conduct of an accused subsequent to the offense charged is admissible only if probative of guilt." Mann, supra, 132 N.J. at 418. "Like evidence of flight, evidence of a defendant's suicide attempt that follows the alleged commission of an offense generally is admitted." Id. at 421. A suicide attempt is admissible if it shows an intent to avoid prosecution and punishment or "consciousness of guilt." Ibid.

In Mann, however, the Court recognized that factors other than consciousness of guilt and desire to avoid punishment "may motivate or contribute to an accused's decision to attempt suicide." Id. at 410. Given "[t]he possible ambiguity of an accused's suicide attempt, " the Court held that its admission "requires a careful consideration of [its] probative value" and the "defendant's psychological, social or financial situation" that might underlie the attempt. Id. at 423. The Court further held that such evidence should be admitted only to the extent that the attempt has that probative value under the circumstances and after consideration of the potential prejudice inherent where there are other explanations for the attempt, such as a prior history of suicidal acts or difficult social or financial circumstances that may explain the action. Id. at 423-24. As a safeguard against erroneous admission, the Court required a hearing "to ensure a proper balancing of the" probative and prejudicial value of the evidence. Ibid.; see also N.J.R.E. 104; N.J.R.E. 401; N.J.R.E. 403.

In this case the judge conducted the required hearing and found this suicide attempt probative because of its temporal proximity to the crime. The judge, however, provided no factual findings pertinent to the probative value of the attempt given defendant's history of a prior attempt and suicide note, which followed the ending of another romantic relationship and included a reference to her deceased daughter. The judge's decision addressing the critical balance or probative and prejudicial value was conclusory given the evidence. She stated:

Taking into consideration the fact that defendant may have attempted suicide on separate occasions, that there were prior hospitalizations and prior treatments for depression, this current suicide attempt as evidenced by the letter found near the defendant was so closely related in time to the victim's murder that the note may in fact be proof of consciousness of guilt although there certainly are other inferences that one can draw from it and, therefore, I am satisfied that the suicide note is relevant.
. . . . [(discussion of whether the note was hearsay is omitted).]
Having reviewed the facts and the relevant law and having made what I believe to be the appropriate analysis and balancing test in this case, I am satisfied that if the State chooses to use this note it is admissible.

Because the issue may arise again on remand, we note that this explanation is inadequate to permit us to determine whether the judge abused her discretion in analyzing the admissibility of this suicide note in conformity with N.J.R.E. 401, N.J.R.E. 403 and Mann. See State v. Lykes, 192 N.J. 519, 534 (2007) (discussing review of evidentiary rulings).

It is, however, clear that the judge erred by neglecting to give the jurors an instruction guiding their consideration of the suicide note. Mann also directs that when evidence of a suicide attempt is admitted such instruction is required:

If evidence of a defendant's suicide attempt is admitted, the trial court should charge the jury on its proper use. The jury should be instructed that it first must find that an actual suicide attempt had occurred. It should then consider whether that attempt was made to avoid the burdens of prosecution and punishment. The jury should also determine whether defendant's attempted suicide demonstrated consciousness of guilt. The trial court should instruct the jury that if it credits any alternative explanation offered by the defendant, it may not infer consciousness of guilt from the evidence of a suicide attempt.
[132 N.J. at 424.]

Thus, the instruction needed was one advising that they could not consider the note unless they found that this was an actual suicide attempt. If they did, they further needed directions to consider whether the attempt demonstrated 1) an effort to avoid the burdens of prosecution and punishment; and 2) consciousness of guilt. Most important, because there were alternative explanations in this case, the jurors had to be told that they could not infer consciousness of guilt from the attempt if they credited any of the alternative explanations offered. Ibid.

We recognize that no instruction on the proper use of the suicide note was requested and, consequently, our review is for plain error — "'[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" State v. Jordan, 147 N.J. 409, 422 (1997) (quoting State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S.Ct. 2254, 26 L.Ed.2d 797 (1970)).

Nevertheless, omission of an instruction on a matter pertaining to proof of guilt or innocence is generally not deemed harmless. State v. Harmon, 104 N.J. 189, 213 (1986). Given that the State used not only the suicide attempt but also the statements defendant made in the suicide note as evidence of consciousness of guilt and to demonstrate that she made false accusations to avoid prosecution and punishment, there is no reason to deviate from the general rule. We have serious doubts that the jurors' verdict would have been the same if this evidence was excluded or admitted with instruction on its proper use consistent with Mann.

III

At trial, defendant opposed the State's request for the trial court to instruct the jury on the lesser-included offenses of aggravated, reckless and passion-provocation manslaughter. N.J.S.A. 2C:1-8d; State v. Robinson, 136 N.J. 476, 482, 486 (1994). After considering the evidence, the judge concluded that the record did not provide a rational basis for the jurors to acquit defendant of murder and convict her of any form of manslaughter. Accordingly, the invited error doctrine does not apply, State v. Jenkins, 178 N.J. 347, 359-60 (2004), but defendant must show that the omission of the instruction was legal error "prejudicially affecting [her] substantial rights" having "a clear capacity to bring about an unjust result." Jordan, supra, 147 N.J. at 422 (quoting Hock, supra, 54 N.J. at 538).

Defense counsel argues that the question for this court is whether there was a rational basis for a verdict acquitting defendant of murder and convicting her of a lesser-included offense. The State indicates, without supporting argument, that the decisional law suggests the question is whether one or more of the lesser-included offenses were "clearly indicated" by the evidence — a more difficult showing from defendant's perspective. See Jenkins, supra, 178 N.J. at 361. Because the State argues that defendant cannot prevail under the more favorable rational basis standard, there is no reason to address this question.

The focus of this case was on whether defendant was the person who killed Seidle by shooting him three times in the torso and firing the last shot into his chest while he was lying on the floor. The question with respect to the lesser-included offenses is whether the shooter intended anything other than causing his death or shot him while impassioned by adequate provocation.

The mental states required for murder and aggravated and reckless manslaughter distinguish those crimes. A defendant is guilty of murder if he or she "intended to kill or was practically certain that his or her actions would cause or would be likely to cause death, " State v. Reddish, 181 N.J. 553, 627 (2004) (quoting State v. Rhett, 127 N.J. 3, 7 (1992)); acted with purpose "'to cause serious bodily injury'" but "'kn[owing] that the injury . . . was highly probable'" to result in death, Jenkins, supra, 178 N.J. at 362 (quoting State v. Cruz, 163 N.J. 403, 417-18 (2000)); or acted with "'aware[ness] that it was practically certain that his conduct would cause serious bodily injury'" and that it was "'highly probable that death would result.'" Id. at 362-63 (quoting Cruz, supra, 163 N.J. at 418). In contrast, a defendant who is aware of and consciously disregards a "probability, " rather than a practical certainty or high probability of death, is guilty of aggravated manslaughter, id. at 363, [4] and a defendant who is aware of and "disregard[s] only a 'possibility' of death, " is guilty of reckless manslaughter. Ibid.

In this case, there was no evidence of a struggle or of shots fired that missed Seidle, the obvious mark. Thus, there was no rational basis for concluding that the shooter was not acting purposely or knowingly or for determining that the shooter was anything less than "practically certain" that death would result when he or she fired the third shot while he was prone on the floor. We further note, the medical records indicating defendant suffered from depression include nothing that would permit a jury to infer that her condition deprived her of the capacity to know that firing a gun into another's chest was practically certain to kill.

The evidence also failed to provide a rational basis for the jurors to convict defendant of passion-provocation manslaughter. That crime applies when a murder is committed under a "'reasonable and adequate provocation'"; when there has not been sufficient time to cool off "'between the provocation and the slaying'"; when the defendant "'actually was impassioned by the provocation'"; and the defendant had not cooled off. State v. Galicia, 210 N.J. 364, 379 (2012) (quoting State v. Josephs, 174 N.J. 44, 103 (2002)).

Even if one were to assume that the evidence indicating that Seidle slept with another woman while living with defendant and abused and harassed her when she left him as she reported to her friends, the time that lapsed between those events and the shooting was more than a reasonable person would require to cool off. Accordingly, the court did not err in denying the State's request to charge this crime as a lesser-included offense of murder.

IV

After considering the remaining issues in light of the record and defendant's arguments, we have concluded that they have insufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).

Reversed and remanded for further proceedings.


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