January 19, 2017
appeal from Superior Court of New Jersey, Law Division,
Bergen County, Indictment No. 09-06-1113.
J. Neary argued the cause for appellant (Law Offices of Brian
J. Neary, attorneys; Brian J. Neary, of counsel and on the
briefs; Jane M. Personette, on the briefs).
Kennedy, Assistant Prosecutor, argued the cause for
respondent (Gurbir S. Grewal, Bergen County Prosecutor,
attorney; Deepa S.Y. Jacobs, Assistant Prosecutor, of counsel
and on the brief).
Judges Fuentes, Simonelli and Gooden Brown.
J.T. was indicted by a Bergen County Grand Jury and charged
with the murder of her husband, M.T., N.J.S.A.
2C:11-3(a)(1)-(2) (count one); first degree attempted murder
of her minor daughter, K.T. (Karen), N.J.S.A. 2C:5-1 and
N.J.S.A. 2C:11- 3(a)(1)-(2) (count two); second degree
endangering the welfare of Karen, N.J.S.A. 2C:24-4 (count
three); second degree endangering the welfare of her minor
son, A.T. (Angel), N.J.S.A. 2C:24-4 (count four); and
third-degree terroristic threats against Karen and Angel,
N.J.S.A. 2C:12-3(b) (count five). These charges arise from
events that occurred on March 29, 2009. The indictment also
charged defendant with two crimes that allegedly occurred on
an unspecified date between November 12, 2008 and March 1,
2009: first degree attempted murder of Karen, N.J.S.A. 2C:5-1
and N.J.S.A. 2C:11-3 (count six); and second degree
endangering the welfare of Karen, N.J.S.A. 2C:24-4 (count
December 28, 2011, the jury acquitted defendant of murder,
but found her guilty of the lesser included offense of
aggravated manslaughter, N.J.S.A. 2C:11-4(a). The jury also
found defendant guilty of all of the remaining counts in the
indictment. On February 29, 2012, the trial judge sentenced
defendant to a term of thirty years, with an eighty-five
percent period of parole ineligibility and five years of
parole supervision, as mandated by the No Early Release Act
(NERA), N.J.S.A. 2C:43-7.2; a term of ten years on count two,
attempted murder of Karen, subject to NERA; and five-year
terms on counts three and four, endangering the welfare of
Karen and Angel. The judge ordered all of the sentences
imposed on these offenses to run consecutive, resulting in an
aggregate term of fifty years, subject to the parole
restrictions of NERA.
remaining counts, the judge imposed concurrent terms of
imprisonment as follows: a five-year term on the conviction
of third degree terroristic threats; a ten-year term on the
conviction of first degree attempted murder of Karen prior to
March 29, 2009; and a five-year term on the conviction for
second degree endangering the welfare of Karen prior to March
central issue in this appeal does not concern whether
defendant actually engaged in the conduct that led to this
criminal prosecution. Defendant admitted she suffocated her
husband and then attempted to suffocate her children. The
question before the jury was whether defendant was legally
insane at the time she engaged in this conduct. The jury
found defendant was legally sane and therefore criminally
appeal, defendant raises the following arguments:
IRREGULARITIES INVOLVING THE JURY REQUIRE
DEFENDANT'S CONVICTION BE REVERSED AND THE MATTER
REMANDED FOR A NEW TRIAL.
a. The method of jury selection was neither random nor
conducted in a manner consistent with fN.J.S.A.1
b. [Defendant's] due process rights were violated when
the [c]ourt addressed the jury pool in her absence.
c. The misconduct of two jurors, and the [c]ourt's
thoroughly inadequate ex parte voir dire of them, prejudiced
[d]efendant, resulting in a denial of due process and require
d. The [c]ourt below erred in failing to declare a
ERRORS REGARDING THE TESTIMONY OF DR. STEVEN SIMRING REQUIRE
a. Dr. Simring impermissibly opined on the ultimate issue of
guilt, thus requiring that [d]efendant's conviction be
reversed. ([N]ot raised below).
b. The violation of the sequestration order by the
State's expert requires reversal of [d]efendant's
ERRORS REGARDING THE TESTIMONY OF STATE WITNESS, [DEFENDANT],
PREJUDICED DEFENDANT, THUS REQUIRING HER CONVICTION TO BE
VACATED AND THE MATTER REMANDED FOR A NEW TRIAL.
a. Summary of [defendant's] trial testimony.
b. Multiple errors regarding the video and transcript of
[defendant's] statement of March 29, 2009 require
[d]efendant's conviction to be vacated and the matter
remanded for a new trial.
c. The procedure employed by the [c]ourt below violated
[defendant's] Sixth Amendment right to confrontation.
d. Prosecutorial misconduct requires that [defendant's]
conviction be vacated and a new trial [o]rdered.
TRIAL ERRORS IN THE CONTEXT OF THE PROCEEDINGS BELOW DEPRIVED
DEFENDANT OF A FAIR TRIAL AND WARRANT REVERSAL.
SENTENCE IMPOSED BY THE COURT BELOW IS EXCESSIVE.
a. The [c]ourt below failed to credit [defendant] with all
applicable mitigating factors.
b. Concurrent sentences should have been imposed.
c. The [c]ourt below erred in failing to sentence [d]efendant
as if convicted of offenses one degree lower.
light of the record developed at trial, we reverse
defendant's conviction and remand this matter for a new
trial. The record shows the prosecutor asked the expert
witness to define "legal insanity." This question
required the State's expert to improperly opine on
defendant's state of mind, stating that defendant had
"the specific intent" to kill her husband. This
opinion testimony usurped the jury's exclusive role to
decide this critical factual issue, rendering any verdict
tainted by it unsustainable. State v. Cain, 224 N.J.
410, 424 (2016). Although this issue is before us as a matter
of plain error under Rule 2:10-2, we are satisfied
that this testimonial evidence is "of such a nature as
to have been clearly capable of producing an unjust
result." R. 2:10-2.
not outcome determinative, this opinion also includes a
detailed description and analysis of the trial judge's ex
parte interactions with a pool of prospective jurors. We have
taken the time to do this because there are no reported
decisions by any court in this State addressing this
worked as a computer programmer at the New Jersey Institute
of Technology (NJIT); her husband M.T. was primarily
responsible for the rearing of their children as a
stay-at-home father. The couple's two children, Karen and
Angel, were fifteen and ten years old respectively at the
time of their father's death.
early November 2008, M.T. suffered a stroke that caused
severe physical and cognitive impairments and left him unable
to care for himself. Witnesses familiar with the family
uniformly testified that before M.T.'s stroke, the couple
appeared to have a good relationship, and the family was
close and enjoyed spending time together. The children's
testimony corroborated these impressions of familial harmony.
Karen described her father as humble, "very kind and
modest, " and defendant as caring, strong and "very
hardworking." Both children described defendant as a
"good mom" who rarely yelled and never resorted to
November 21, 2008, M.T. was discharged from the hospital and
transferred to the Kessler Rehabilitation Center (Kessler),
where he remained until January 6, 2009, when he was
thereafter transferred to Maple Glen Care Center (Maple
Glen). Soon after, defendant's insurance company issued a
"cut letter, " advising that it would not cover
M.T.'s stay at Maple Glen beyond February 11,
accounts, defendant soon became overwhelmed by the
responsibilities of being her husband's sole caretaker,
the family's sole wage earner, and the de facto
single-parent of two children. She was especially distressed
after she learned that M.T. was not eligible to receive
social security benefits. This required her to "spend
down" the family's assets by $81, 000 before M.T.
could receive Medicaid. Witnesses who knew defendant testified
that she worried incessantly about her husband's medical
expenses and feared that they would consume all of the
family's resources, leaving nothing left to cover the
cost of the children's college education.
work supervisor, David Ullman, referred her to the Employee
Assistance Program (EAP) for counseling because he believed
she was "at the end of [her] rope." Ullman
testified that defendant would talk to him about dying and
seemed like she was "giving up." Karen and Angel
testified that their mother changed from being a "very
strong" person to being "really depressed, and not
really herself." Karen testified that she saw her
mother's mental state deteriorate over time; she acted
"mad" and "crazy."
provided the following description of her observations of her
mother's melancholic disconnection:
There was a time when -- it's like later in the time
period before the incident, she -she was talking -- not
saying the word, but she was talking about being suicidal.
There was a time when she just . . . wanted to die. She
wished that she was dead. She wished -she just wished that
everything would be over, because this felt like such a huge
boulder on her shoulders. It was a huge burden.
Q. [D]o you remember exactly what she said?
A. There was one [time] when she said that she had threatened
- - she almost was in the parking lot, and she wanted to jump
off, because it was like a certain floor, and it was high up
from the ground.
Q. And she told [you] that?
corroborated his older sister's description of
defendant's lugubrious mood and frustration over his
father's condition, and how her emotional state
deteriorated over time. However, in response to defense
counsel's questions on cross-examination, Angel made
clear defendant never engaged in physical violence:
Q. [W]ould you say that your mom was getting more and more
Q. Now, you said to the Prosecutor that she talked about that
she was mad. She . . . never hit you; is that right?
Q. Okay. Never hit [Karen]; right?
Q. Never hit your dad either; right?
also testified that he and his sister's mutual concerns
over the situation prompted Karen to write a letter to
defendant on February 21, 2 009, approximately one month
before her father's death. The letter provides, in relevant
part, as follows:
I know [these] past couple of months have been tough on us .
. . . BUT, PLEASE! LISTEN TO ME! You seriously have gone
insane! Your emotions are slowly destroying your
decision-making skills! All I see from you every single
miserable day [is] despair, depression, insanity [and]
psychotic craziness . . . .
[Angel] and I try to make you smile a little [but] you just
fall into a deeper depression[.]
We need you back! We think you are beautiful [and] loving
deep down inside hiding from [the] madness you show now.
behavior also alarmed employees at Maple Glen, the
rehabilitation center that treated M.T. after he was
transferred from Kessler. They testified that defendant
obsessed about M.T.'s care and the cost of his treatment.
Kay Giacelone, an admissions director at Maple Glen whose
responsibilities included patient intake and working with
Medicaid, testified that defendant repeatedly asked
variations of the same two questions on a near-daily basis,
namely: (1) whether M.T. could qualify for Medicaid; and (2)
whether he would ever regain the ability to walk
Hudley, an assistant director at Maple Glen, testified about
a conversation she had with defendant on February 26, 2009:
She had come in to see . . . how he was doing, have I heard
anything . . . . I guess she wanted to know how his rehab was
doing. And I basically tried to let her know she had to talk
to [the treatment staff]. But, when I saw him, he was walking
with Jackie [ (the Occupational Therapist)]; he was okay . .
. [Defendant asked if] I had seen him that day, and I said,
"Yeah, I'd seen him, " . . . probably earlier
that day . . . in the dining[-]room area . . . with other
patients . . . .
[S]he asked me if he cannot, . . . she stated he couldn't
live like . . . that. And I said, "What are you talking
about?" As best as I remember, she said, "He
cannot live like that. Do we do an injection?" So I
asked her, "What are you talking about?" She
asked me, "Do we let people die . . ."
the witness paused, the trial judge decided to call a recess
of the morning session. When the trial resumed in the
afternoon, Hudley testified that immediately after this
encounter with defendant, she sent an email to her
Supervisor, to the center's Administrator, and to the
Director of Nursing, documenting what defendant had told her
concerning her husband's wishes to end his life if there
was no realistic prospect of improvement of his physical
also mentioned in her email that defendant was
"worr[ied] about money for her kids' education and
can't keep spending down . . . ." Although defendant
had signed a "DNR" (Do Not Resuscitate) directive
for her husband, she insisted "this was not good enough
and she wanted to get the doctor . . . to give him an
injection so he can die in peace." Hudley characterized
defendant's state of mind as "off her rocker"
and "nuts." In the email, she cautioned her
colleagues: "we better all watch this lady . . . ."
In her response to Hudley's email, Giacelone stated that
she would ask the "psych doctor to see and evaluate
[defendant stat.]" The staff at Maple Glen concluded
that defendant did not seem to understand or accept the
nature of her husband's brain injury.
weeks after Hudley's encounter with defendant, M.T. had a
home visit to determine if he could return home permanently.
The visit was brief and "stressful" for the entire
family. The level of intensive care M.T. required,
particularly around mealtimes, revealed the futility of any
attempt to have him home without a permanent healthcare aide.
On March 28, 2009, M.T. was sent home a second time; he died
the next morning.
addition to M.T.'s difficulties at mealtimes, Angel and
Karen highlighted two incidents that occurred before
M.T.'s death. Early in the evening, M.T. accidentally
ripped the bathroom sink off the wall when he leaned on it
for support. According to Angel, defendant became
"really, really mad." At some point after ten
o'clock that evening, Angel heard defendant yelling at
M.T. for urinating on the bed. Angel testified that he fell
asleep sometime thereafter. He was later awakened by the loud
sound of his father "gasping for air." When asked
to describe the volume of the sound, Angel responded:
"Pretty loud." The child testified that the sound
lasted for approximately "five seconds." Although
he shared a bedroom with his sister, Angel stated Karen
remained asleep at this time. The following exchange captured
what occurred next from Angel's perspective:
Q. And was [Karen] in the bed at this point?
Q. And did you try to wake [Karen] up at all?
Q. Did you say anything?
Q. But you were scared?
Q. Okay. What's the next thing you remember after that?
A. I saw my mom come into the room, maybe like a minute after
this, after the gasping, and she came in with a plastic bag.
And then, she was about to put the bag on [Karen's] head,
and [Karen] knocked it out of the way.
A. And that's when they started arguing.
Q. Did [defendant] say anything when she came into the
Q. How did that make you feel? A. More scared.
Q. What did you think was going to happen?
A. That she was going to suffocate me and [Karen].
Q. And if you could, show us how close you saw that bag come
to your sister's head?
A. Maybe a foot.
Q. And what did [Karen] do?
A. She like grabbed the bag and pushed it away.
Q. And what happened after that?
A. Then my sister and mom got into an ...