NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.
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).
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.
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 ...