STATE OF NEW JERSEY V. MICHELLE LODZINSKI (14-08-0871, MIDDLESEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2118-16T2
STATE OF NEW JERSEY,
Plaintiff-Respondent, APPROVED FOR PUBLICATION
v. May 26, 2021
APPELLATE DIVISION
MICHELLE LODZINSKI,
Defendant-Appellant.
_________________________
Argued April 1, 2019 – Decided August 7, 2019
Before Judges Messano, Fasciale and Rose.
On appeal from the Superior Court of New Jersey,
Law Division, Middlesex County, Indictment No. 14-
08-0871.
Gerald Krovatin and David W. Fassett argued the
cause for appellant (Krovatin Klingeman, LLC and
Arseneault & Fassett, LLP, attorneys; Gerald
Krovatin, David W. Fassett, and Gregory D. Jones, on
the briefs).
Joie D. Piderit, Assistant Prosecutor, argued the cause
for respondent (Andrew C. Carey, Middlesex County
Prosecutor, attorney; Joie D. Piderit, of counsel and on
the brief).
The opinion of the court was delivered by
MESSANO, P.J.A.D.
On May 25, 1991, defendant Michelle Lodzinski reported that her son,
five-year-old Timothy (Timmy) Wiltsey, went missing while both were
attending a Memorial Day carnival in Sayreville. Search efforts began
immediately, they became widespread, and descriptions of Timmy, the
clothing and Teenage Mutant Ninja Turtles (TMNT) sneakers he was wearing,
and his continued disappearance received national media attention. In October
1991, a schoolteacher walking in the area of Olympic Drive, near the Raritan
Center industrial complex in Edison, found a child's TMNT sneaker; believing
it might be related to the case, he provided it to law enforcement authorities.
Defendant had worked for a company in Raritan Center for approximately six
months in the late 1980s.
Police were able to match the model number of the sneaker to a shoebox
defendant provided shortly after Timmy's disappearance. When first shown
the sneaker, defendant said it was not her son's, describing features that
distinguished it from the sneakers Timmy was wearing. In November 1991,
defendant returned to view the sneaker a second time and told authorit ies it
could be her son's. She did not disclose, however, that she had worked in
Raritan Center. Also in November 1991, police and an FBI agent assigned to
A-2118-16T2
2
the case searched the area on foot near where the sneaker was found, but they
discovered nothing of significance.
FBI agent Ron Butkiewicz and police officers returned to the same
general area on April 23, 1992, and the following day, April 24, and found a
matching sneaker and a pillowcase. Approximately 150 yards away, and
across Olympic Drive, they found Timmy's skeletal remains in the stagnant
water of Red Root Creek, a tributary of the Raritan River. They also
discovered remnants of his clothing, a shovel and a TMNT balloon, like
Timmy sometimes kept in his bedroom at home.
Approximately twenty-five feet above the remains, embedded in the soil
in the bank of the creek, Butkiewicz found a blue blanket with multi-colored,
metallic fibers. Although FBI testing on the blanket revealed nothing of
evidential value, years later, a New Jersey State Police forensic scientist
identified metallic fibers found on the pillowcase as being similar to those in
the blanket, although he never performed a full trace analysis. In 1992,
defendant and her parents could not identify the blanket, but, twenty-years
later, detectives showed the blanket to three women who babysat Timmy in the
late 1980s and early 1990s; they identified it as coming from defendant's
home. Police also showed the blanket to several other witnesses when the
investigation was reopened, but none of them could identify it.
A-2118-16T2
3
The medical examiner who examined the remains at the scene, but died
before trial, could not reach a conclusion about the cause of Timmy's death.
However, another medical examiner, Dr. Geetha Natajarian, who reviewed the
autopsy reports, photographs, and investigative and other forensic reports,
testified. She, too, could not determine a cause of death, but through a process
of elimination, opined that the manner of Timmy's death was a homicide. A
forensic anthropologist, Donna Fontana, opined that Timmy's body had
decomposed where it was found, at a "surface burial" site.
Although defendant was immediately a suspect in the investigation of
Timmy's disappearance, and remained so after the authorities found his
remains, she never admitted having a role in either his disappearance or his
death. Within the first two months after her son's disappearance, however,
defendant provided numerous statements that conflicted with the account she
first provided on the night of the carnival, i.e., that she went to purchase a soda
and Timmy simply disappeared.
On June 6, 1991, defendant told authorities that two men abducted
Timmy. The next day, she claimed that a woman she knew only as "Ellen"
was at the carnival and offered to watch Timmy as defendant purchased her
soda. Two men accompanied Ellen. Defendant described them, but did not
know who they were. Initially, defendant claimed the trio just disappeared
A-2118-16T2
4
with Timmy. In a later version, she said one of the men threatened her with a
knife and told her not to say anything or they would harm Timmy.
Twenty-three years after Timmy's disappearance, a Middlesex County
grand jury indicted defendant in a single count charging her with the first -
degree murder of her son. Trial proceeded between March and May 2016. At
the close of the State's case, defendant moved for a judgment of acquittal
pursuant to Rule 3:18-1, which the judge denied. The jury found defendant
guilty. After denying her motions for a judgment of acquittal notwiths tanding
the verdict (JNOV), Rule 3:18-2, or a new trial, Rule 3:20-1, the judge
sentenced defendant to a thirty-year term of imprisonment with a thirty-year
period of parole ineligibility.
Before us, defendant raises the following points:
POINT I
[DEFENDANT'S] CONVICTION SHOULD BE
REVERSED, AND JUDGMENT OF ACQUITTAL
SHOULD BE ENTERED, BECAUSE NO
EVIDENCE SUGGESTED, MUCH LESS PROVED,
THAT [DEFENDANT] CAUSED TIMOTHY'S
DEATH.1
POINT II
[DEFENDANT'S] CONVICTION SHOULD BE
VACATED AND A JUDGMENT OF ACQUITTAL
1
We have omitted the sub-points of defendant's arguments.
A-2118-16T2
5
ENTERED BECAUSE THE STATE VIOLATED
HER RIGHT TO DUE PROCESS OF LAW BY
WAITING [TWENTY-THREE] YEARS TO SEEK
HER INDICTMENT AND BRING HER TO TRIAL.
POINT III
THE TRIAL COURT COMMITTED ONE OR MORE
REVERSIBLE ERRORS BY UNNECESSARILY
AND IMPROPERLY INVOKING RULE 1:8-2(d)(1)
TO REMOVE AND REPLACE A DEFENSE-
LEANING JUROR WHO WAS ABLE TO
CONTINUE DELIBERATING, WHEN
DELIBERATIONS HAD ALREADY PROGRESSED
TO AN ADVANCED STATE AND WITHOUT
FINDING THAT THE RECONSTITUTED JURY
WOULD BE IN A POSITION TO CONDUCT OPEN-
MINDED AND FAIR DELIBERATIONS, THEREBY
VIOLATING [DEFENDANT'S] RIGHT TO A FAIR
TRIAL BY AN IMPARTIAL JURY.
POINT IV
ALTERNATIVELY, THE TRIAL COURT
COMMITTED REVERSIBLE ERROR BY FAILING
TO DECLARE A MISTRIAL UPON LEARNING
THAT THE JURY HAD BEEN TAINTED BY
OUTSIDE INFORMATION THAT HAD THE
CAPACITY TO INFLUENCE THE RESULT.
We have considered these arguments in light of the record and applicable legal
standards. We affirm.
I
A-2118-16T2
6
Whether made before a verdict is returned, see Rule 3:18-1, or after, see
Rule 3:18-2, the standard for deciding a motion for acquittal is the same. State
v. Tindell, 417 N.J. Super. 530, 548-49 (App. Div. 2011).
[T]he governing test is: whether the evidence viewed
in its entirety, and giving the State the benefit of all of
its favorable testimony and all of the favorable
inferences which can reasonably be drawn therefrom,
is such that a jury could properly find beyond a
reasonable doubt that the defendant was guilty of the
crime charged.
[State v. D.A., 191 N.J. 158, 163 (2007) (citing State
v. Reyes, 50 N.J. 454, 458-59 (1967)).]
"The trial judge must consider only the existence of such evidence, not its
'worth, nature, or extent.'" State v. Brooks, 366 N.J. Super. 447, 453 (App.
Div. 2004) (quoting State v. Kluber, 130 N.J. Super. 336, 342 (App. Div.
1974)).
"It is generally stated that whether the motion to acquit is made at the
end of the State's case or after the end of the entire case the standard is the
same, i.e., only the State's proofs will be considered." State v. Sugar, 240 N.J.
Super. 148, 152-53 (App. Div. 1990) (emphasis added) (citing Kluber, 130
N.J. Super. at 341-42). An exception to this general rule applies when "a
defendant has had the benefit of the submission to the jury of a lesser[ -
]included offense based upon proofs adduced on his own case," and is
convicted of that lesser-included offense. Id. at 153. In those circumstances,
A-2118-16T2
7
"the sufficiency of the evidence should be tested upon a consideration of the
entire record and not merely a limited application of the Reyes criteria to the
State's proofs." Ibid.2
"The approach is the same though the testimony is circumstantial rather
than direct; indeed in many situations circumstantial evidence may be 'more
forceful and more persuasive than direct evidence.'" State v. Mayberry, 52
N.J. 413, 437 (1968) (quoting State v. Corby, 28 N.J. 106, 119 (1958)); accord
Tindell, 417 N.J. Super. at 549. Even though the evidence must be sufficient
to support a finding of guilt beyond a reasonable doubt, "[i]nferences need not
be established beyond a reasonable doubt." Tindell, 417 N.J. Super. at 549
(citing State v. Taccetta, 301 N.J. Super. 227, 240 (App. Div. 1997)). As the
Court has said:
[A] jury may draw an inference from a fact whenever
it is more probable than not that the inference is true;
the veracity of each inference need not be established
beyond a reasonable doubt in order for the jury to
draw the inference. Nevertheless, the State's right to
the benefit of reasonable inferences should not be used
to shift or lighten the burden of proof, or become a
bootstrap to reduce the State's burden of establishing
2
Sugar is distinguishable, because although the jury in this case received
instructions on the lesser-included offenses of aggravated manslaughter and
reckless manslaughter, the evidence adduced on defendant's case amounted to
a general denial of any involvement in Timmy's death, and defendant was
convicted of murder and not either of the lesser-included offenses.
A-2118-16T2
8
the essential elements of the offense charged beyond a
reasonable doubt.
[State v. Brown, 80 N.J. 587, 592 (1979) (citations
omitted).]
We apply the same legal standard as the trial judge and review the denial of a
motion for acquittal de novo. State v. Fuqua, 234 N.J. 583, 590 (2018) (citing
Sugar, 240 N.J. Super. at 153).
These principles, therefore, generally alleviate the necessity of
describing in detail evidence defendant adduced at trial, which in this case was
substantial and in many ways directly rebutted the State's proofs. For
example, defendant produced several witnesses who claimed to have seen a
young boy generally fitting Timmy's description at the carnival that night,
thereby refuting the State's major contention that Timmy was never at the
carnival with defendant, he was likely already dead at that point, and defendant
concocted a story to escape detection. Defendant produced expert testimony
that challenged the State's theory that defendant buried Timmy in a shallow
grave where his remains were found, and criticized the handling of critical
evidence, most notably the blanket. In addition, defendant produced witnesses
that supported the defense of third-party guilt, i.e., that one or more persons
abducted Timmy from the carnival.
A-2118-16T2
9
In addition, we are not called upon to address the admissibility of the
State's evidence, because none of the points on appeal raises such a challenge.
Succinctly stated, the State contended that defendant killed Timmy, a child she
bore out of wedlock at a very young age, because she was struggling
financially and emotionally. It introduced evidence of Timmy's frequent
absences and tardiness at school, that defendant sometimes brought him to her
job sites because she could not find a babysitter and she moved from job to
job, staying only a short period of time before leaving to find another. The
State proved that defendant sometimes did not return from a night out, leaving
the babysitter to fend for herself. It also introduced evidence of defendant's
romantic involvement with a married man shortly after Timmy's disappearance
and other "cavalier" conduct, including her behavior during various interviews
with law enforcement and at Timmy's funeral.
Defendant objected to some of this evidence, and the trial judge astutely
noted his concern on occasion regarding its admissibility. He noted, as do we,
that the evidence frequently cut both ways. It suffices to say, whether a
strategic decision or not, much of this evidence, which the State argued
demonstrated motive, was admitted without objection and, in most instances
was not subjected to analysis under the strictures of N.J.R.E. 404(b), and State
v. Cofield, 127 N.J. 328, 338 (1992). See State v. Foglia, 415 N.J. Super. 106,
A-2118-16T2
10
122-23 (App. Div. 2010) (noting that non-criminal "bad conduct evidence" still
must undergo evaluation under the Rule and Cofield). Our comments are not
intended as a criticism, but rather only to make clear that we address the
argument raised in Point I on the record that exists, applying the standards
already enunciated.
Due process requires that to convict any defendant, the State must prove
all elements of a criminal charge beyond a reasonable doubt. State v.
Kiriakakis, 235 N.J. 420, 431 (2018) (citing United States v. Booker, 543 U.S.
220, 230 (2005)). N.J.S.A. 2C:1-13(a) codifies this constitutional requirement
and provides: "No person may be convicted of an offense unless each element
of such offense is proved beyond a reasonable doubt. In the absence of such
proof, the innocence of the defendant is assumed." To convict defendant of
murder under N.J.S.A. 2C:11-3(a)(1) and (2), the State was required to prove
beyond a reasonable doubt that she purposely or knowingly caused Timmy's
death, or serious bodily injury that resulted in his death.
Our Criminal Code defines "purposely" and "knowingly" as follows:
(1) Purposely. A person acts purposely with respect to
the nature of his conduct or a result thereof if it is his
conscious object to engage in conduct of that nature or
to cause such a result.
(2) Knowingly. A person acts knowingly with respect
to the nature of his conduct or the attendant
circumstances if he is aware that his conduct is of that
A-2118-16T2
11
nature, or that such circumstances exist, or he is aware
of a high probability of their existence. A person acts
knowingly with respect to a result of his conduct if he
is aware that it is practically certain that his conduct
will cause such a result. "Knowing," "with
knowledge" or equivalent terms have the same
meaning.
[N.J.S.A. 2C:2-2(b)(1) and (2) (emphases added).]
As can be seen, the requisite mental states supporting a conviction for murder
require conduct by the actor and legal causation.
The Criminal Code also defines the relationship between conduct and
causation:
a. Conduct is the cause of a result when:
(1) It is an antecedent but for which the
result in question would not have
occurred; and
....
b. When the offense requires that the defendant
purposely or knowingly cause a particular result, the
actual result must be within the design or
contemplation, . . . of the actor, or, if not, the actual
result must involve the same kind of injury or harm as
that designed or contemplated and not be too remote,
accidental in its occurrence, or dependent on another's
volitional act to have a just bearing on the actor's
liability or on the gravity of his offense.
[N.J.S.A. 2C:2-3(a)(1) and (b).]
A-2118-16T2
12
The Code "provides for a two-step analysis for determining the requisite causal
connection. First, the finder of fact must determine whether the State has
proven 'but-for' causation under subsection a. Second, it must consider the
more specific requirement of . . . subsection[] b . . . ." Cannel, N.J. Criminal
Code Annotated, cmt. 2 on N.J.S.A. 2C:2-3 (2019). The State establishes
"but-for" causation "by demonstrating that the event[,]" here, Timmy's death,
"would not have occurred absent . . . defendant's conduct." State v. Buckley,
216 N.J. 249, 263 (2013) (citing N.J.S.A. 2C:2-3(a)). 3
Defendant's essential argument is that the State failed to prove she
engaged in any conduct that caused Timmy's death. The State's arguments in
response largely miss the mark.
For example, it is undisputed that in New Jersey, the State need not
produce the victim's body, much less prove a specific cause of death. As we
said in State v. Zarinsky, "[t]he failure to produce the victim's body does not
preclude a finding that she is dead." 143 N.J. Super. 35, 54 (App. Div. 1976)
(citing Commonwealth v. Burns, 187 A.2d 552, 558-59 (Pa. 1963)), aff'd, 75
3
In this sense, the Code incorporates elements of the common law concept of
corpus delicti. See State v. Hill, 47 N.J. 490, 496 (1966) ("It is clear that the
corpus delicti is proved where the State . . . has produced facts and
circumstances from which the jury can infer that a loss has occurred and that
that loss was caused by or was a result of a criminal act.") (citing State v.
Lucas, 30 N.J. 37, 53 (1959)).
A-2118-16T2
13
N.J. 101 (1977). "[T]he successful concealment or destruction of the victim's
body should not preclude prosecution of his or her killer where proof of guilt
can be established beyond a reasonable doubt." Id. at 55 (citing Campbell v.
People, 42 N.E. 123, 127 (Ill. 1895)). That the prosecution need not produce
the victim's body or, because of destruction or decomposition of the victim's
remains, establish a cause of death, is widely accepted. See, e.g., People v.
Towler, 641 P.2d 1253, 1257-61 (Cal. 1982); Commonwealth v. Nadworny,
486 N.E.2d 675, 682-83 (Mass. 1985); Burns, 187 A.2d at 558-59; State v.
Rebeterano, 681 P.2d 1265, 1267-68 (Utah 1984); Edwards v. Commonwealth,
808 S.E.2d 211, 216-20 (Va. Ct. App. 2017).
However, even though the victim's body was never found in Zarinsky,
the State produced extensive direct and circumstantial evidence that showed
the defendant engaged in some conduct that caused the victim's death.
Witnesses identified the victim riding in the defendant's car shortly before she
went missing; he was identified as the person who tried to lure two other
young girls into his car two days earlier, and two others two weeks earlier;
police found ammunition, as well as panties and hairclips similar to those worn
by the victim, in the defendant's car, and blood on its rear bumper and taillight;
and the defendant made incriminating admissions to jailmates. 143 N.J. Super.
A-2118-16T2
14
at 41-47. The contrast between such evidence of the defendant's conduct in
Zarinsky, and what the State adduced here, requires no further comment.
Nor is it meaningful for the State to argue that a jury may convict a
defendant solely on circumstantial evidence. That proposition is beyond
peradventure. See, e.g., State v. Rogers, 19 N.J. 218, 231-35 (1955); State v.
Donohue, 2 N.J. 381, 389-92 (1949); State v. Carroll, 256 N.J. Super. 575, 603
(App. Div. 1992).
Rather, the issue here is whether the State proved, admittedly by
circumstantial evidence, that defendant did "something to produce the
prohibited . . . result[,]" Cannel, N.J. Criminal Code Annotated, cmt. 2 on
N.J.S.A. 2C:2-3 (citing State v. V.R., 387 N.J. Super. 342 (App. Div. 2006)),
and "the actual result[,]" the death of her son, was "within [her] design or
contemplation . . . or . . . involve[d] the same kind of injury or harm as that
[she] designed or contemplated." N.J.S.A. 2C:2-3(b).
We agree with the State that there was available proof for the jury to
conclude beyond a reasonable doubt that Timmy's death was neither suicide
nor an accident, but rather he was the victim of a homicide. The jury was free
to accept Dr. Natajarian's opinion in that regard. It also could accept other
circumstantial proof that the killing was not accidental. Fontana's expert
A-2118-16T2
15
opinion permitted an inference that whoever killed Timmy dug a shallow grave
in a remote area to dispose of his body ostensibly to avoid detection.
There was also available evidence beyond a reasonable doubt that
defendant placed Timmy's body in the shallow grave. She was the last person
seen with him; defendant's landlady testified that she heard defendant and
Timmy in the apartment on the morning of the carnival. Items recovered from
the area where police found his remains, most significantly the blanket and the
TMNT balloon, relate back directly to defendant's home. Defendant's
conflicting, ever-changing statements made to law enforcement and others
during the time Timmy was missing demonstrate an attempt to not only deflect
suspicion from her, but to hinder the investigation.
After police found Timmy's sneaker and then his remains, defendant
continued to obfuscate, first telling police the sneaker was not his, only to
return later and tell police it could be. She said the blanket did not come from
her home. Defendant failed to tell police that she had worked in the Raritan
Center complex, and the jury was entitled to infer that her conduct after
confirmation of Timmy's death was inconsistent with innocence and more
consistent with a consciousness of her own guilt.
Nevertheless, defendant contends, without conceding, that despite proof
she had the opportunity to commit the homicide and was present at and
A-2118-16T2
16
participated in the burial of Timmy's remains, the State failed to adduce
sufficient evidence that she engaged in conduct that caused his death, much
less that she did so purposely or knowingly. Although this presents a close
question, we disagree.
"Case law and treatises have recognized the special role of motive
evidence and its unique capacity to provide a jury with an overarching
narrative, permitting inferences for why a defendant might have engaged in the
alleged criminal conduct." State v. Calleia, 206 N.J. 274, 293 (2011); see also
Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, cmt. 9 on
N.J.R.E. 404 (2019) ("[M]otive evidence is that which discloses why the
defendant committed a criminal offense.") (citing State v. Hasher, 246 N.J.
Super. 495, 500 (Law Div. 1991)). "[C]ourts have admitted motive evidence
even when it did no more than raise an inference of why a defendant may have
engaged in criminal conduct . . . ." Calleia, 206 N.J. at 294.
The Court also has recognized that one purpose of motive evidence "is to
aid the jury, particularly in a case resting upon circumstantial evidence, in
determining who the person was who committed the crime." State v. Carter,
91 N.J. 86, 102 (1982) (emphasis added). "[M]otive evidence can 'establish
the identity of the defendant as the person who committed the offense' and . . .
'is often of great importance, particularly in a case based largely on
A-2118-16T2
17
circumstantial evidence.'" Calleia, 206 N.J. at 293 (emphasis added) (quoting
1 Wharton on Criminal Evidence § 4:45, at 479 (15th ed. 1997)). Here, the
jury could accept the State's contention that defendant had sufficient motive to
kill her son, who, despite evidence she introduced to the contrary, the State
claimed was a burden to her.
Additionally, "a defendant's post-crime conduct evidencing a guilty
conscience provide[s] a sound basis from which a jury logically could infer
that a defendant was acting consistent with an admission of guilt or that the
conduct was illuminating on a defendant's earlier state of mind." State v.
Williams, 190 N.J. 114, 126 (2007) (citing State v. Rechtschaffer, 70 N.J. 395,
413-15 (1976)). Here, the State introduced evidence of defendant's conduct
when she first reported Timmy was missing, and argued her false report of the
events at the carnival, her ever-changing story of how Timmy disappeared, her
omission of information that might have incriminated her, i.e., her prior
employment at Raritan Center, and her unusual lack of emotion even after
Timmy's remains were found, demonstrated her participation in criminal
conduct that caused his death. See, e.g., State v. Tucker, 190 N.J. 183, 190
(2007) (noting the State's ability "to impeach the validity of [a de fendant's]
statements" through "asserted inconsistencies . . . between two or more
A-2118-16T2
18
statements"); State v. Cerce, 22 N.J. 236, 245-46 (1956) (evidence admitted as
to the defendant's indifference when informed that his wife had been killed).
Additionally, to support a conviction for murder, the State was required
to prove defendant's purposeful or knowing conduct. Evidence of only
reckless conduct, underlying and supporting a conviction for aggravated
manslaughter or reckless manslaughter, was insufficient. See N.J.S.A. 2C:11-
4(a)(1) and (b)(1) (defining aggravated and reckless manslaughter); see also
N.J.S.A. 2C:2-2(b)(3) ("A person acts recklessly . . . when he consciously
disregards a substantial and unjustifiable risk that [a] material element[,]" in
this case, death, "will result from his conduct."). The State, therefore, was
entitled to disprove any reasonable doubt that defendant acted without the
requisite intent. See N.J.R.E. 401 (evidence is relevant if it has "a tendency in
reason to prove or disprove any fact of consequence") (emphasis added). "The
burden of establishing this connection is not onerous: 'if the evidence makes a
desired inference more probable than it would be if the evidence were not
admitted, then the required logical connection has been satisfied.'" State v.
Garrison, 228 N.J. 182, 195 (2017) (quoting Williams, 190 N.J. at 123).
Circumstantial proof of intent, through defendant's words and conduct
both before and after the crime, is well-recognized in our jurisprudence, and
proof of intent is a specific exception to the general prohibition in N.J.R.E.
A-2118-16T2
19
404(b) regarding evidence of other bad acts. See N.J.R.E. 404(b) (prohibiting
admission of evidence of "[o]ther crimes, wrongs, or acts[,]" generally, but
allowing its admission "for other purposes, such as proof of . . . intent").
"Such evidence may be admissible . . . if it discloses the mental intention or
purpose of a defendant in committing a criminal offense or to negate the
existence of innocent intent." Biunno, Weissbard & Zegas, Current N.J. Rules
of Evidence, cmt. 10 on N.J.R.E. 404 (emphasis added) (citing State v.
Mulero, 51 N.J. 224, 228 (1968)).
Although "intent should not be 'confused' with motive[,]" there is a
logical relationship between the two. State v. Apprendi, 304 N.J. Super. 147,
157 (App. Div. 1997) (quoting Morss v. Forbes, 24 N.J. 341, 359 (1957)),
aff'd, 159 N.J. 7 (1999), rev'd on other grounds sub nom. Apprendi v. New
Jersey, 530 U.S. 466 (2000). "In criminal law motive may be defined as . . .
the moving power which impels to action for a definite result. . . . [I]ntent . . .
is the purpose to use a particular means to effect a certain result." Id. at 157-
58 (quoting 21 Am. Jur. 2d Criminal Law § 173 (1981)). Our courts have
historically recognized a "wider range of evidence is permitted" to show both.
Rogers, 19 N.J. at 228.
Otherwise there would often be no means to reach and
disclose the secret design or purpose of the act
charged in which the very gist of the offense may
consist. . . . All evidentiary circumstances which are
A-2118-16T2
20
relevant to or tend to shed light on the motive or intent
of the defendant or which tend fairly to explain his
actions are admissible in evidence against him . . . .
[Ibid. (emphasis added) (citations omitted).]
See also State v. J.M., Jr., 438 N.J. Super. 215, 223 (App. Div. 2014) ("When
offered as a means of proving intent, other-crimes evidence is often
indistinguishable from motive."), aff'd as modified, 225 N.J. 146 (2016).
Post-crime consciousness of guilt evidence is relevant "to state of mind
disputes" even when the crime charged requires reckless conduct. Williams,
190 N.J. at 129. Here, in addition to the evidence we have already discussed,
the jury could conclude that defendant's contradictory statements about
Timmy's disappearance were circumstantial evidence of a guilty state of mind
regarding the cause of his death.
In State v. Bzura, the defendant, an attorney, was charged with theft of
his client's money and false swearing based on subsequent inconsistent
statements to the grand jury. 261 N.J. Super. 602, 606-07 (App. Div. 1993).
In rejecting his argument that the charges should have been severed before
trial, we held that the evidence of his false swearing would have been
admissible even if the defendant were tried separately for theft. Id. at 616.
"[T]he fact that [the] defendant made inconsistent statements . . . would tend to
A-2118-16T2
21
show that [the] defendant acted with guilty intent when he obtained his client's
money." Ibid. (citation omitted).
In sum, giving the State the benefit of all favorable testimony and
reasonable inferences that could be drawn from that testimony, we conclude
there was sufficient evidence to prove beyond a reasonable doubt that
defendant purposefully or knowingly caused Timmy's death.
II
In her second point, defendant argues the judge erred in denying her
motion to dismiss the indictment because of the twenty-three-year delay
between the finding of Timmy's remains and the grand jury's action. She
contends there was no reasonable explanation for failing to show Timmy's
babysitters the blanket during the initial investigation, and the delay prejudiced
her defense. She notes that although two defense witnesses who saw Timmy at
the carnival testified at trial, one was unable to travel due to advanced age,
testified by Skype and during her video testimony changed her account. A
second had no recollection of the events, causing defendant to read the
witness's contemporaneous statement to police for the jury.
"Statutes of limitations protect defendants from oppressive pre-
indictment delay[,]" but New Jersey has no statute of limitations for
prosecuting the crime of murder. State v. Townsend, 186 N.J. 473, 487 (2006)
A-2118-16T2
22
(citing N.J.S.A. 2C:1-6(a)). Nevertheless, a due process violation may occur
because of a delayed indictment if: (1) the State deliberately delayed
indictment in order to gain a tactical advantage over the defendant; and (2) the
delay caused the defendant actual prejudice in presenting his or her defense.
Id. at 488-89 (citing United States v. Gouveia, 467 U.S. 180, 192 (1984)).
We agree with the trial judge that the record does not support a
conclusion that the State deliberately delayed indictment in order to gain a
tactical advantage over defendant. At most, the State's failure to show the
blanket to more people in 1992, when investigators showed it only to
defendant and her parents, evidences negligence. When the investigation was
reopened in 2011, the State showed the blanket to a larger number o f people,
including not only Timmy's former babysitters, who identified it as belonging
to defendant, but also to others who did not identify the blanket as defendant's.
The jury heard the evidence on both sides, so we also discern no prejudice to
defendant on this issue.
We further agree with the judge that defendant failed to demonstrate
other prejudice occasioned by the delay. In addition to the two witnesses
cited, defendant produced four other witnesses who identified a young boy of
Timmy's general description who attended the carnival the night of May 25,
1991. Moreover, the delay allowed defendant to present a fuller third -party
A-2118-16T2
23
defense, because a critical witness she produced at trial did not surface until
2015.
For these reasons, we reject the argument that pre-indictment delay
violated defendant's due process rights.
III
We provide necessary context for defendant's remaining contentions.
The jury began deliberations at approximately noon, Thursday, May 12, 2016.
Late that afternoon, it requested playback of some testimony. The judge
dismissed the jury for the day at 3:45 p.m., advising that playback would occur
the following morning, which it did, lasting until 12:20 p.m. After lunch and
further deliberations, the jury requested additional playback, which began at
2:52 p.m., but was not completed. The judge dismissed the jury at 3:56 p.m.
Playback continued on Monday morning, May 16, for approximately one
hour, after which the jury returned to deliberate and requested more playback
at 1:42 p.m. After some discussion with the attorneys, the judge told the jury
to return to the jury room and clarify the request. Within minutes, at 1:53
p.m., the judge received a note: "Research was done by the foreman as to the
FBI's protocol back in the 1990s."
In this regard, Agent Butkiewicz had testified that when he found the
blanket near Timmy's remains in 1992, he never photographed it in situ, nor
A-2118-16T2
24
did he measure its precise location from the skeletal remains or other
landmarks at the scene. Butkiewicz claimed it was not FBI protocol at the
time to do so. However, defense counsel vigorously cross-examined
Butkiewicz about this and established through him and other State's witnesses
that the lack of any procedure to document the exact location of the evidence
was contrary to protocols established within New Jersey's law enforcement
community.
Recognizing that a juror conducting independent research violated his
repeated admonitions, the judge conferred with the attorneys and decided
without objection to interview the juror. During questioning, the foreperson
admitted that immediately before beginning deliberations he performed
internet research on FBI protocols on his personal laptop computer at home.
The juror said his research did not tell him "anything important" or "relevant"
to the case, but he admitted speaking about his research with a few of the other
jurors.
The judge then questioned the other deliberating jurors individually, and
all stated they were aware of the foreperson's research. However, they each
said the research and any conversations about it would not affect their
consideration of the evidence. The judge dismissed the jury for the day.
A-2118-16T2
25
On Tuesday, May 17, neither the State nor defendant moved for a
mistrial. Defendant urged the judge not to remove the foreperson from the
jury, and the State argued otherwise. The judge ruled that the foreperson
should be removed pursuant to Rule 1:8-2(d), because he had proven himself
unable and unwilling to follow the court's instructions. At this point,
defendant claimed that deliberations had advanced to a point where
substitution was improper, and defense counsel moved for a mistrial. Noting
the jury had only deliberated for approximately five hours, the judge denied
the motion.
The court selected an alternate juror, designated a new foreperson, and
properly instructed the reconstituted jury to begin deliberations anew. After
approximately an additional thirty minutes of the previously requested
playback, the judge dismissed the jury for lunch. Some additional playback
occurred upon its return, and the judge dismissed the jury after approximately
ninety minutes of deliberations. The jury deliberated upon its return
Wednesday morning, and, at 11:04 a.m., returned its verdict.
In a written supplemental opinion filed after the verdict but before
consideration of defendant's formal post-verdict motions, the judge reasoned
that dismissal of the foreperson was appropriate, because he was unable to
follow the court's express, repeated instructions not to conduct independent
A-2118-16T2
26
research and demonstrated a lack of candor in responding to the judge's
questions. The judge determined that a mistrial was unwarranted because
these issues were "personal" to the dismissed juror and did not affect the
remaining jurors' ability to deliberate fairly. 4
The judge entertained oral argument on defendant's post-verdict motions,
and, in his written decision that accompanied the order denying JNOV or a
new trial, the judge reiterated his prior reasoning. He concluded dismissal of
the foreperson was proper under Rule 1:8-2(d)(1) and deliberations had not
progressed so far that a mistrial was warranted.
In her third point, defendant argues that the judge erred by replacing the
deliberating foreperson, and, in her fourth point, she alternatively contends
that the judge should have declared a mistrial rather than replace the juror.
The judge justified removing the deliberating foreperson pursuant to Rule 1:8-
2(d)(1), which "provides that, after the jury begins its deliberations, an
alternate juror may not be substituted unless 'a juror dies or is discharged by
the court because of illness or other inability to continue.'" State v. Musa, 222
4
Defendant refers to the foreperson as a "defense-leaning" juror in her brief,
but the juror's leanings are not apparent from the transcripts of the individual
voir dire, as the judge carefully did not inquire about deliberations to that
point. However, in his written supplemental decision, the judge
parenthetically cited a post-verdict news article in which the substituted juror
claimed to have been told by other jurors that the dismissed foreperson
believed defendant was not guilty.
A-2118-16T2
27
N.J. 554, 565 (2015) (quoting R. 1:8-2(d)(1)). The rule "is intended to strike a
balance between a defendant's right to a fair trial decided by an impartial jury
and judicial economy." Ibid. (citing State v. Jenkins, 182 N.J. 112, 124
(2004)).
The Court has construed the "'inability to continue' provision of th[e]
rule[,] . . . restrictively . . . 'to protect a defendant's right to a fair jury trial.'"
State v. Terrell, 231 N.J. 170, 171 (2017) (Albin, J., dissenting) (quoting
Jenkins, 182 N.J. at 124). "[O]ur courts distinguish between reasons that are
personal to the juror, which may permit a substitution under Rule 1:8-2(d)(1),
and issues derived from 'the juror's interaction with the other jurors or with the
case itself,' which may not." State v. Ross, 218 N.J. 130, 147 (2014) (quoting
State v. Williams, 171 N.J. 151, 163 (2002)). "Our review of a trial court's
decision to remove and substitute a deliberating juror because of an 'inability
to continue' pursuant to Rule 1:8-2(d)(1), is deferential. We will not reverse a
conviction unless the court has abused its discretion." Musa, 222 N.J. at 564-
65 (citing Williams, 171 N.J. at 168, 170; State v Valenzuela, 136 N.J. 458,
473 (1994)).
Nevertheless, "there are times when jury deliberations have proceeded
too far to permit replacement of a deliberating juror with an alternate."
Jenkins, 182 N.J. at 131. While there is no set time after which substitution is
A-2118-16T2
28
inappropriate, Ross, 218 N.J. at 151, "[t]hat critical threshold is passed when
'it is strongly inferable that the [remaining jurors have] made actual fact -
findings or reached determinations of guilt or innocence [and] there is a
concern that the new juror will not play a meaningful role in deliberations.'"
Musa, 222 N.J. at 568 (second and third alterations in original) (quoting
Jenkins, 182 N.J. at 132). 5 "Thus, a court must assess whether 'in light of the
timing of the juror's dismissal and other relevant considerations . . . a
reconstituted jury will be in a position to conduct open-minded and fair
deliberations.'" Ibid. (quoting Ross, 218 N.J. at 147).
"The court must be prepared to declare a mistrial if a substitution would
imperil the integrity of the jury's process." Ross, 218 N.J. at 147 (citing State
v. Hightower, 146 N.J. 239, 253-54 (1996)). Our "review of 'a trial court's
denial of a mistrial motion' is also governed by the abuse-of-discretion
standard." Musa, 222 N.J. at 565 (quoting State v. Yough, 208 N.J. 385, 397
(2011)).
Defendant contends substitution was inappropriate because the
circumstances justifying removal were "not exclusively personal to [the
5
In Ross, the Court concluded the substitution of an alternate for an ill
deliberating juror was permissible even though the jury had already
"deliberated for a significant period" and indicated it was deadlocked. 218
N.J. at 152.
A-2118-16T2
29
foreperson] and . . . affected the entire jury." She contends the Court's
decision in Hightower "is directly on point and controls this case." We again
disagree.
In Hightower, during deliberations in the penalty phase of a capital case,
a juror performed outside research, learned that the victim had three children,
and shared that information with other jurors. 146 N.J. at 248-50. While
questioning the jurors on this issue, the court also inadvertently learned the
jurors' positions on the merits of the case, and that the jury was at an advanced
stage of deliberations having made tentative determinations with respect to the
existence of all aggravating and mitigating factors. Id. at 249-50. The court
chose to substitute the juror rather than declare a mistrial. Id. at 250-51. The
reconstituted jury deliberated and returned a verdict of death. Id. at 251.
The Court reversed, finding error in the juror substitution because it
occurred for reasons that were not exclusively personal to the juror. Id. at 255.
The juror's "misconduct was related to the case and to his interactions with the
other jurors." Ibid.Nevertheless, the Court acknowledged "there might be some
circumstances in which juror misconduct during jury deliberations might
permit substitution of the offending juror." Ibid. In this regard, the Court
distinguished our holding in State v. Holloway, 288 N.J. Super. 390 (App. Div.
A-2118-16T2
30
1996), noting that in Holloway, although the juror substitution occurred due to
juror misconduct and after extensive deliberations, there was no objection to
the substitution, and the trial court found that the misconduct had not tainted
the remaining jurors. Hightower, 146 N.J. at 256. Under the different facts
presented, in Hightower, the Court concluded "the only option available" was
declaring a mistrial. Id. at 255-56.
In Holloway, the jury reported reaching a verdict. 288 N.J. Super. at
397. When polled, however, one juror expressed disagreement with the
verdict, so the judge ordered the jury to continue deliberations. Ibid.Thereafter, the objecting juror asked to speak with the court and told the judge
she had dinner the night before with a relative, who talked about a case
involving the defendant's brother, and indicated that he came from a good
family. The juror said this conversation helped her make a decision, although
she denied the conversation changed her mind. Id. at 397-98, 400-01. She had
mentioned the conversation to the other jurors but had not discussed the
substance of the conversation with them. Id. at 398, 401-02. When questioned
by the court, the other jurors confirmed that they did not know the substance of
the juror's conversation regarding the defendant's family. Id. at 402.
The prosecutor asked the judge to halt deliberations and remove the
offending juror. Id. at 398-99, 401. The judge found the juror had been
A-2118-16T2
31
tainted by outside information she received from her relative, id. at 401,
substituted an alternate juror, and instructed the jury to begin deliberations
anew. Id. at 399, 401-02. It returned a guilty verdict thereafter. Id. at 402.
We concluded the trial judge reasonably exercised his discretion in
dismissing the juror, because the "conversation with her relative, together with
her difficulty in the deliberative process, made her 'unable to continue' within
the context of Rule 1:8-2(d)." Id. at 404. In language particularly relevant
here, we said: "A juror who has once disregarded the court's unambiguous
admonitions is just as likely do so in deciding the merits of the case as well."
Ibid.We also concluded that the juror's problem did not "stem[] from any
interaction in the jury room." Ibid. Rather, it "was personal and based on
improper outside influences, and the record amply demonstrate[d] that [the
juror] was unable to properly deliberate and fulfill her function as a juror. "
Ibid. (citing State v. Valenzuela, 136 N.J. 458, 472-73 (1994)). In this regard,
we said, "[r]emoval is appropriate where the record clearly indicates that any
taint ha[d] not infected the remaining jurors and no real or presumed harm
ha[d] been done." Id. at 404-05.6
6
In Jenkins, 182 N.J. at 133 n.2, the Court disapproved of that part of our
holding in Holloway that permitted substitution after the jury had announced
A-2118-16T2
32
This case has factual similarities and differences to both Hightower and
Holloway. Like Hightower, the foreperson here disclosed his outside research
to the other jurors, whereas in Holloway, the offending juror never disclosed
the substance of her conversations with her relative. But, unlike Hightower,
where the "[j]uror misconduct . . . cause[d] a substantial likelihood that one or
more jurors were impermissibly influenced" so as "to undermine the integrity
of a death penalty trial[,]" 146 N.J. at 265, the judge here found, and the record
supports his conclusion, that the foreperson's research produced no taint. The
judge's voir dire of the other jurors confirms this.
Furthermore, while in both Hightower and Holloway, the jury's
deliberations were advanced, here, the jury had been deliberating for only a
short period of time. Also, unlike both of those cases, the jury here was still
considering the evidence, as demonstrated by the playback of testimony that
continued after the jury was reconstituted. See, e.g., Williams, 171 N.J. at
169-70 (finding no error in substitution after three hours of deliberations and
while jury was requesting read-backs of testimony).
Under these particular circumstances, we cannot find the judge
mistakenly exercised his discretion by removing the foreperson because of his
___________________
its verdict. The Court found that substitution at that late juncture would not
permit the reconstituted jury to truly deliberate anew.
A-2118-16T2
33
inability to continue with deliberations in light of his forbidden internet
research. We therefore also conclude that the judge did not err in denying
defendant's mistrial motion.
Affirmed.
A-2118-16T2
34