NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 5, 2013.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 09-02-0348.
Joseph E. Krakora, Public Defender, attorney for appellant (Jacqueline E. Turner, Assistant Deputy Public Defender, of counsel and on the brief).
Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
Before Judges Messano, Lihotz and Ostrer.
Defendant Raymond E. Troxell was indicted by the Middlesex County grand jury for the first-degree murder for hire of his business partner, Vincent Russo, N.J.S.A. 2C:11-3(a)(1) or (2), -3(b)(4) and -3(b)(4)(e). Co-defendant, Frank Marsh, was charged in the same indictment with the first-degree purposeful or knowing murder of Russo, N.J.S.A. 2C:11-3(a)(1) or (2), -3(b)(4) and -3(b)(4)(d); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); and second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). Defendant was tried separately from Marsh and found guilty by the jury. The jury also answered two specific interrogatories in the affirmative, compelling a mandatory sentence of life without parole, pursuant to N.J.S.A. 2C:11-3(b)(4). Defendant raises the following arguments on appeal:
THE DEFENDANT'S VIDEOTAPED STATEMENT WAS THE PRODUCT OF PSYCHOLOGICALLY COERCIVE INTERROGATION. U.S. Const. Amends. V, XIV; N.J.R.E. 503.
THE JUDGE ERRED IN ADMITTING EVIDENCE OF THE CO-DEFENDANT'S OWNERSHIP OF A NUMBER OF LEGAL GUNS, AS PROOF OF THIS OWNERSHIP WAS IRRELEVANT AND WAS AN IMPROPER COMMENT ON THE EXERCISE OF A CONSTITUTIONAL RIGHT[.] U.S. Const. Amends. II, VI, XIV; N.J. Const. Art. I, para. 10. (Not Raised Below)
THE TRIAL JUDGE ERRED IN FAILING TO TELL THE JURY THAT A FINDING ON THE TRIGGERING FACTOR, MURDER FOR HIRE, MUST BE UNANIMOUS AND, IF NOT, A VALID VERDICT WOULD STAND. (Not Raised Below)
In a pro se supplemental brief, defendant raises the following points:
DEFENDANT'S STATEMENT TO POLICE SHOULD HAVE BEEN SUPPRESSED AS HE DID NOT KNOWINGLY OR VOLUNTARILY WAIVE HIS RIGHT TO REMAIN SILENT . . . .
DEFENDANT'S STATEMENT MUST BE SUPPRESSED AS THE POLICE FAILED TO SCRUPULOUSLY HONOR HIS RIGHT TO REMAIN SILENT . . . .
THE ADMISSION OF EVIDENCE OF FRANK MARSH'S INVOLVEMENT IN THE INSTANT TRIAL IMPERMISSIBLY LOWERED THE STATE'S BURDEN OF PROOF ON THE MATERIAL ELEMENTS OF THE CRIME CHARGED AND RESULTED IN A FLAWED JURY INSTRUCTION[, ] THEREBY DENYING DEFENDANT HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL . . . .
THE ADMISSION OF EVIDENCE OF FRANK MARSH'S INVOLVEMENT IN THE INSTANT TRIAL IMPERMISSIBLY CREATED A CONFLICT OF INTEREST BY FORCING DEFENDANT'S COUNSEL TO ALSO HAVE TO DEFEND HIS CLIENT'S CO-DEFENDANT DESPITE SEVERED TRIALS; THEREBY DENYING DEFENDANT HIS DUE PROCESS RIGHTS TO A FAIR TRIAL, AND EFFECTIVE ASSISTANCE OF COUNSEL . . . .
Having considered these arguments in light of the record and applicable legal standards, we affirm.
In summer 2008, defendant and Russo opened an Italian deli, Mezzaluna, in North Brunswick. Paul Scala, who owned a bakery next door, was instrumental in introducing the two men to each other. Russo, who lived on Staten Island, was "like a brother to [Scala], " and defendant was his "good friend." Soon after the business opened, however, defendant began complaining to Scala that, despite the fledgling business's financial problems, Russo was compensating himself and not contributing to the workload.
The complaints worsened as the months passed, and, on one occasion, defendant told Scala that "if he (Russo) takes another . . . dime[, ] my friend . . . will go in there and shoot him in the back of the store in the head." On another occasion, defendant told Scala he had some "crazy friend . . . from Edison" who would "do the job." On a third occasion, defendant told Scala, "I'll kill that mother f ------, I got a guy for [$]3000 [who] is going to shoot him[.]" Scala told Russo, who brushed off the threats, saying Scala was "paranoid" and defendant "talk[ed] too much."
Other witnesses called by the State testified to the animosity between defendant and Russo over the operation of the business. Mezzaluna's cook, Anthony Agostino, identified notes left by defendant for Russo, threatening legal action and complaining about Russo talking money from the business.
At approximately 6:30 a.m. on December 16, 2008, North Brunswick Township police officer Robert Frangella was dispatched to Mezzaluna. All the doors were locked, but Frangella noted a Jeep with New York license plates parked in the rear. Shortly thereafter, Agostino arrived and opened the front door. Frangella found Russo's lifeless body near the back office door, on its knees and slumped over a box. It was "ice cold" and exhibited "lividity." No spent bullet casings were found at the scene, and a bottle containing Oxycontin was found on a table near the body.
It was estimated that Russo had been dead for approximately twelve hours. Although not initially clear what caused Russo's death, the medical examiner determined at autopsy that Russo died from a single gunshot wound to the head fired from a distance of four to six inches. The medical examiner opined it was most likely that Russo was shot while sitting in the chair in his office. Russo may have survived the shooting for a short period of time, during which he would still have had limited movement.
John Kissel testified that defendant was "one of [his] best friends, " the two having both grown up together in Edison. They both knew co-defendant Marsh, who was also from Edison. Kissel owned Alpha Cab Company (Alpha Cab), and both defendant and Marsh worked at Alpha Cab at the time of the murder. Defendant complained about Russo and offered Kissel $3000 to kill Russo; Kissel refused. Kissel testified that defendant talked about killing Russo in Marsh's presence, but Kissel did not know whether the two discussed the issue outside his presence.
Kissel testified that on December 15, 2008, at approximately 7:00 p.m., Marsh came to his office at Alpha Cab. Following a brief conversation, the substance of which was not admitted before the jury, Kissel went to Mezzaluna and saw Russo's Jeep parked in the back. Kissel called defendant and met him in the parking lot of a Walmart in North Brunswick. Kissel "told [defendant] that [Russo] was dead." Defendant was "[s]tunned a little bit." Kissel and defendant then went to defendant's house, and, at some point, Kissel saw defendant "holding a wad" of cash. Marsh arrived at defendant's house and stayed "[m]aybe [fifteen] minutes" before leaving. Kissel did not see defendant give the money to Marsh.
Kissel and defendant went to a bar around 11:00 p.m., and Marsh arrived a short time later. Angela Cusamano, a barmaid, testified that the three men were there, and videotapes from surveillance cameras at the bar corroborated the meeting. Cell phone records also revealed that defendant and Marsh spoke to each other numerous times on December 15. Defendant also called Marsh shortly after leaving the bar, at approximately 12:47 a.m. on December 16. Marsh called defendant later that afternoon, but, the call went directly to defendant's voice mail. At the time, defendant was being interviewed by ...