STATE OF NEW JERSEY VS. SUI KAM TUNG (13-06-0793, BERGEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3692-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SUI KAM TUNG, a/k/a
TONY TUNG,
Defendant-Appellant.
_____________________________
Argued February 27, 2019 – Decided June 28, 2019
Before Judges Koblitz, Currier and Mayer.
On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Indictment No. 13-06-0793.
Daniel S. Rockoff, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Daniel S. Rockoff, of
counsel and on the briefs).
Ian C. Kennedy, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued the cause
for respondent (Dennis Calo, Acting Bergen County
Prosecutor, attorney; Ian C. Kennedy, of counsel and
on the brief).
The opinion of the court was delivered by
KOBLITZ, P.J.A.D.
After a jury trial, defendant Sui Kam Tung appeals from the March 31,
2016 convictions for murder of his estranged wife's lover and related charges.
Defendant argues that the trial court erred in allowing (1) evidence of his
invocation of the right to counsel, (2) references to his refusal to consent to a
search of his computer and car, and (3) testimony by the interrogating officer
that he knew defendant was lying. We agree that these three issues combine to
undermine the integrity of the verdict and reverse.
The jury found defendant guilty of first-degree murder, N.J.S.A. 2C:11-
3(a)(1) and (2); second-degree aggravated arson, N.J.S.A. 2C:17-1(a)(2);
second-degree possession of a weapon with unlawful purpose, N.J.S.A. 2C:39-
4(a); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b);
second-degree desecration of human remains, N.J.S.A. 2C:22-1(a)(2); third-
degree hindering by way of concealment or destruction of evidence, N.J.S.A.
2C:29-3(b)(1); fourth-degree tampering by destroying computer data, N.J.S.A.
2C:28-6(1); and fourth-degree stalking, N.J.S.A. 2C:12-10(b).1
1
The jury found defendant not guilty of second-degree burglary, N.J.S.A.
2C:18-2; first-degree felony murder during a burglary, N.J.S.A. 2C:11-3(a)(3);
and first-degree felony murder during an act of arson, N.J.S.A. 2C:11-3(a)(3).
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The court sentenced defendant for murder to a life term, subject to more
than sixty-three years of parole ineligibility under the No Early Release Act,
N.J.S.A. 2C:43-7.2. He received a consecutive ten-year term with a five-year
parole disqualifier for aggravated arson. The remaining convictions either
merged or the court sentenced defendant to concurrent terms.
I. The March 6, 2011 Murder and Prior Events
Robert Cantor was shot in the back of the head while in his home in
Teaneck, New Jersey. His body was placed on the bed in the basement bedroom,
doused with an accelerant, and set on fire. Defendant was the estranged husband
of Cantor's girlfriend, S.,2 and was the only suspect considered by the police.
S. and Cantor had sexual relations for the first time in February 2010, in
the basement bedroom of Cantor's home. Defendant acknowledged to the police
that he found out about the affair between Cantor and S. through their email
exchanges he downloaded from S.'s computer. A computer expert who searched
defendant's computer found 299 saved emails between Cantor and S. In early
2010, defendant, who owned a computer store, installed software on his wife's
laptop that enabled him to record her exact keystrokes. Defendant also created
an email address and sent anonymous emails to Cantor.
2
We use an initial to preserve the confidentiality of defendant's wife.
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On the night of February 16, 2010, S. told defendant she was aware that
he knew about her and Cantor. Defendant asked S. where she and Cantor had
slept together, and she told him it was in a basement bedroom of Cantor's house.
Defendant told her not to see Cantor.
On February 18, defendant told S. he was going to take $2000 from their
savings to buy a gun "to protect you and the kids and myself." Their bank
statement showed a cash withdrawal for $2000. Later that day, defendant
showed her a black handgun. Defendant told the police he showed S. a friend's
gun, a "small Beretta," during this time period. He said he gave it back to his
friend.
In March 2010, defendant's wife and daughters moved out of the marital
apartment. In the spring of 2010, defendant went to Cantor's home in Teaneck
three times. Defendant told the police that on the first occasion, they sat in the
living room and spoke for about three hours. Defendant told Cantor, "I want
you to stop seeing my wife." During this first meeting, defendant said he and
Cantor went "down in the basement . . . [b]ecause from the e-mails, I wanted to
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know where they actually have relationship."3 S. testified Cantor had told her
of this three-hour visit.
Defendant said the second time he went to Cantor's house was about a
month later and their conversation was brief. The third time defendant went to
speak to Cantor, Cantor was on his way to work and did not let defendant into
the house.
S. testified that defendant liked to go to shooting ranges. Defendant's
friend who lived in Texas testified that in early November 2010, defendant
called him and asked him "to possibly get him a magazine for a Walther PPX"
handgun. The friend did not supply the magazine and defendant said it was "no
big deal."
On March 3, 2011, S. served defendant with divorce papers. Defendant
told the police he intended to raise the grounds of adultery and put both Cantor
and S. "on the stand."
Defendant spent Sunday, March 6, the day of the murder, with his
youngest daughter. At about 8:00 p.m., defendant took her back to S.'s
apartment and spent about twenty minutes with all three of his daughters. The
3
Although an American citizen, defendant was born in China and English is
not his first language. We have not edited his statements, nor those of the police
officers.
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middle child told defendant she met "a guy named Robbie" who was "mommy's
friend" when she went to the museum with S. that day. Cantor had never before
met any of defendant's children. Defendant told the police he was not angry
because "[i]t was bound to happen."
At approximately 11:30 p.m. on March 6, neighbors saw a fire at Cantor's
home. His body was found in the basement. He had been shot in the back of
the head and died before the fire was started. The police found a 380-caliber
shell casing in the basement, under the bed. The 380-caliber gun for which
defendant had asked his friend to procure a magazine in November 2010 could
be loaded and fired without a magazine.
II. Defendant's Statement
On March 7, 2011, Bergen County Prosecutor's Office Detective James
Brazofsky and Teaneck Detective Mark Fisco interviewed defendant at a New
York City police station. Brazofsky used a small digital voice recorder because
"[t]he 23rd Precinct did not have audio and video recording capabilities ."
Defendant said that on March 6, after he dropped his daughter off with S.,
he returned to his apartment, had two or three beers, read emails, read books,
and washed dishes and "[t]hat took about an hour and a half, two hours." At
about 1:00 a.m., he went to a store and bought some beer. A store clerk later
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confirmed that defendant bought beer between 1:00 and 2:00 a.m. on March 7,
2011. He repeatedly denied going anywhere else that night and said he did not
leave Manhattan. Defendant acknowledged that he learned of the relationship
between S. and Cantor by placing software on her laptop. Fisco continued to
question defendant:
There was a situation that happened last night. Okay.
And I believe that you left, at some point you left New
York City and you traveled into New Jersey last night.
Okay. And I -- I want you to be honest with us.
[DETECTIVE] FISCO: It's very important that you be
honest with us here, Tony. All right? I think some
things you have been honest with us about, other things
you may have left out and not been so honest about.
Tell us about Jersey last night.
A: I was, uh (inaudible). I was --
Q: I -- I don't think you were home all night last night.
DETECTIVE FISCO: What time were you in Jersey
last night?
A: Why would I be in Jersey? What time was I in
Jersey? What are we talking about here?
Brazofsky repeated that he believed defendant "went over there" the night
before and that he was acting under the emotional stress of the divorce and
financial troubles, and he suggested that cell phone records, EZ Pass records, or
other electronic surveillance would show defendant had traveled to New Jersey.
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Brazofsky asked:
Q: Okay. Let me ask you this: Would you allow us,
um, to have a computer forensic examiner look at your
activity last night on the computer from, say, I don't
know, 5:00 p.m. to, I don't know, 7:00 a.m. this
morning? Just to look for activity, not to search
through your personal stuff or anything like that. Just
to look at the activity on the computer to see if --
A: I think I would speak to my lawyer about that first.
Q: Okay. That's fine. You could do that.
Brazofsky also asked for consent to search defendant's car, stating, "My
goal is, if you didn't do anything last night, then there shouldn't be any evidence
related to the incident last night in -- in your car, basically." Defendant
responded repeatedly that he wanted to consult his attorney first before agreeing
to either search.
Brazofsky suggested that cell phone records could show defendant went
to New Jersey and defendant acknowledged that "certain records don't lie" and
that "I can't argue against" that sort of evidence. Brazofsky then asked defendant
to admit he was in New Jersey, saying in part:
Can you be honest with me and tell me where you were
last night? Cause I'm telling you, I could see it in your
face, and I can see it in the way you're sitting there, I
can see that you're not -- you're not at home last night.
Something happened and you did something that you're
sorry about. I can see it in your eyes. Okay.
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Brazofsky suggested that defendant was "pushed . . . over the edge" when
he learned that Cantor had contact with his daughter. Brazofsky again told
defendant, "[Y]ou went there last night. Okay. I know you did. I believe you
did."
Brazofsky again asked to search defendant's computer:
Um, why before -- and you have every right to say no,
but I just wanna ask you for your reason why you said
no. Why would -- if you had nothing to hide, that you
weren't in New Jersey last night, why wouldn't you let
me look at your computer to say, oh, my gosh, look, he
was home? Why would -- why wouldn't you let me go
to your computer just for the period of time that this
incident took place to see if you were on the computer?
Brazofsky stated that "[i]t's only a matter of time" before "things come
together," and defendant commented, "You need to prove it." Brazofsky then
stated:
I'll be honest with you, Tony. You -- you don't -- you
don't have any of the reactions of a person who's telling
me the truth. All right? I been doing this for [fifteen]
years.
Brazofsky again stated:
Do I believe that you were over there? Yeah, I believe
you went over there, cause when I asked you a question
before, you answered them like a person who's not
being truthful. Cause I told you what my answer would
have been. Jim, did you leave your house last night
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after you put your kids to bed? No. I didn't go
anywhere. I know for a fact I didn't go anywhere.
A: Um.
Q: Okay. You can look at my computer. You can look
at my phone. You can talk to my kids. I -- you can talk
to my neighbors. I don't care, cause I know I wasn't
there. You didn't say that once. Not -- you still haven't
said that. Okay. That's why I don't believe you're being
truthful, okay?
The interview was terminated when defendant asked to call his lawyer.
III. The Investigation
The police collected video evidence contradicting defendant's claim that
he was home all night except for purchasing beer. Footage from cameras located
near defendant's apartment showed defendant parking his car at about 10:10
p.m., and walking in the direction of his apartment. About twenty minutes later,
the footage showed him leaving the apartment, and going out of view at about
10:40 p.m., not in the direction of his apartment.
On March 8, 2011, after obtaining a search warrant for defendant's
apartment, the police seized defendant's desktop computer. A computer expert
testified that, on March 6, 2011, all activity, whether generated by a user or the
operating system, stopped on the computer at 9:48 p.m. Computer activity
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began again on March 7 at 1:11 a.m. At 2:00 a.m., a user launched a program
that permanently deleted a large number of files from defendant's computer.
The police searched defendant's computer store. Among other items, they
found handwritten notes that included the name of Cantor's wife, her work
address and job title as well as Cantor's name, cell phone number, and two email
addresses. The police also seized email correspondence between S. and Cantor,
"a folder with assorted information on" S. and Cantor, and Google Map
directions from Cantor's home in Teaneck to the apartment S. moved into, with
a date of April 12, 2010. In addition, the police found S.'s cell phone bill dated
March 5, 2010, with calls to Cantor's cell phone highlighted.
The State presented no direct evidence that defendant left Manhattan on
the night of the murder.
IV. Use of Defendant's Statement at Trial
Defendant unsuccessfully moved pretrial to exclude his March 7, 2011,
statement on the grounds that his agreement to speak to Brazofsky and Fisco
without counsel present was not a knowing and voluntary waiver of his rights
under Miranda v. Arizona, 384 U.S. 436, 473-74 (1966). Defendant did not
thereafter seek to exclude any portion of his statement as inadmissible, and the
entire statement was transcribed for and played to the jury.
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In his opening statement, the prosecutor asked the jury to "pay very, very,
very careful attention to the statement of the defendant . . . ." He said, "Please,
pay very careful attention to not just what he says but how he says what he says
and why he says what he says. How he says it. Please."
At trial, Brazofsky testified at length about the statement and
acknowledged that defendant was the prime suspect at the time he was
questioned. Brazofsky testified that he had been assigned to "the polygraph
unit" as a polygraph examiner for the last ten years.
Brazofsky acknowledged that defendant had been interrogated as opposed
to interviewed, noting that standard practice was to Mirandize a person "[a]t any
point where you are questioning a suspect with the intention of obtaining a
confession."
Before the jury heard the audio playback, Brazofsky summarized the
entire interrogation, including a number of the answers defendant gave in his
statement and Brazofsky's interpretation of those responses. As detailed below,
defense counsel largely did not object to Brazofsky's commentary. On a few
occasions, the trial court sustained a defense objection to Brazofsky's testimony
as "opinion," but some rulings were less clear and no limiting instruction was
provided.
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Brazofsky testified:
I asked him if [S] had been dating anyone or had a
boyfriend. And his first response to me was, you'd have
to ask her. Based upon our -- my information base from
the beginning of this case, obviously he wasn't being
truthful when he answered that question.
[DEFENSE COUNSEL]: Objection, your Honor.
That's an opinion of the officer.
THE COURT: I'll sustain the characterization. You
can rephrase it.
[PROSECUTOR]: No disagreement with counsel.
Shortly thereafter, Brazofsky testified:
When I asked him about whether or not he left
Manhattan at any point, his response -- he paused,
looked at me, didn't answer right away, and said, no. In
that fashion. I thought the answer was odd. It wasn't a
--
[DEFENSE COUNSEL]: Objection, your Honor.
Again, opinion.
THE COURT: All right.
[PROSECUTOR]: I think he can at least give the jury
his reaction. He can be cross-examined.
[DEFENSE COUNSEL]: It's still an opinion.
THE COURT: He answered it. Next question.
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Brazofsky explained that after a break in the interview, "we were more,
not confrontational, but more direct in our questions." Brazofsky said he told
defendant he "did not believe what he was telling us," but he believed defendant
went to Teaneck to confront Cantor. Brazofsky elaborated:
And I asked him at certain points during this period of
the interview if I would see him on any of these checks,
whether it be a traffic camera showing his, you know,
face walking by, or his cell phone not being in
Manhattan, or his, you know, his likeness being on a
surveillance camera. His responses were not denials.
They were very vague. Things like, I believe he said,
"I hope not," "shouldn't be," things like that. Never
once did he say, no, absolutely not, I was home all
night, you won't see me on any camera or anywhere
else.
Brazofsky testified that defendant refused consent to search his computer,
saying "words to the effect of, I think I'd talk to my lawyer first." He told the
jury, "I just reinforced that, you know, you understand if you are home on the
computer when this incident happened, that . . . would clear you as a suspect in
this case. And he still declined to allow us to look at the computer." Brazofsky
also testified that he asked for defendant's consent to search his vehicle, but
defendant again said he would want to speak to a lawyer first. After another
break in the interview, Brazofsky "again confronted [defendant] with the fact
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that I did not believe he was being truthful. That I believe he went to New
Jersey."
Brazofsky repeatedly explained to the jury that he "continued to confront
him with the fact that I didn't believe he was home all night. I felt he went to
Mr. Cantor's house. I felt there was an argument . . . . that somehow got out of
control." When he told defendant the police would be looking for surveillance
camera footage and things like that, defendant "continued to be evasive with his
answers and say things like, 'I hope not,' 'shouldn't be.' Things of that nature."
Brazofsky said, "I believe at this point I asked him again if he was going
to be truthful and tell us about going to New Jersey." Brazofsky again asked to
search defendant's computer. "I informed him that, you know, activity on the
computer would eliminate him as a suspect, and his response was, he did not
want me to -- he was not giving me permission to look at the computer, 'so that's
not another nail in my coffin.' was his response."
Later, the following exchange occurred:
Q. I think you were at this point in your testimony
where you stated that you, again, began to confront Mr.
Tung; that you told Mr. Tung that you did not feel he
was being truthful and that you believed he was in New
Jersey that Sunday evening. Correct?
A. That's correct.
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Q. All right. At this time does he make any request of
you?
A. He does. Just so I can explain, as we start to
confront him and we start to explain to him that
evidence is starting to come in and pile up and that he
needs to be truthful with us so that we can understand
what his intentions were, whether he went over there to
hurt someone or just went over there to have a
conversation with Rob Cantor and then a fight
happened, where it was an unplanned, you know,
spontaneous incident.
I speak, and at this point you'll hear it in the audio for
a good period of time where he doesn't respond. He
doesn't really say anything. He just sits there and
listens to me. And I tell him that I don't believe he's a
bad guy. I believe he's trying to protect his children.
....
What I'm trying to do is get him to admit he did go over
there, because he went over there just to speak to
Robbie, just like he did the other times. That he didn't
go over there with intentions to hurt him. It gives a
person who's not being truthful a more palatable or less
serious explanation of why they went to a house and
why this happened.
So during this portion, I'm speaking a lot, and Tony
Tung is just sitting there staring at me.
....
All of a sudden, he looks up and says, I need to use the
bathroom. And the question just prior to that was, tell
us about going to New Jersey or tell us about last night,
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why you went to New Jersey. And he realizes at that
point that he can't answer that question.
[DEFENSE COUNSEL]: Objection, your Honor.
That's --
THE COURT: All right, I'll sustain as to --
Q. Does he say he can't answer that question?
A. I believe he does. Right after that.
Q. Did you write it in your report?
A. Yes.
[DEFENSE COUNSEL]: That's fine, Judge, but not
opinion. The statement is fine.
[PROSECUTOR]: Agreed.
A. He actually says, "I would like to go to the
bathroom." And it was either myself or Detective Fisco
said, "Can you just answer that one question, that last
question?" And his words were, "No, I can't answer
that now."
After defendant used the bathroom, Brazofsky "continued to confront him.
That he's not being truthful with us." Brazofsky said that, after a few more
minutes, defendant asked to call a lawyer and the interview stopped.
At that point in the trial, each juror received a copy of the transcript of the
statement to follow along. The prosecutor, without objection, instructed
Brazofsky:
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Now, Detective, I'm going to ask you to begin playing
the subject recording, if you would. And during the
course of the recitation of this particular recording, if
there are points at which you need to stop the recording
to explain a particular piece of testimony as it is
received, please feel free to do so. And we will stop the
recording at that point, have your comments, and then
continue with the recording.
During the playback of the statement, Brazofsky periodically offered
comments, some of which addressed defendant's demeanor during questioning,
but others addressed the quality of defendant's answers or his refusal to consent
to searches. Without prompting or a question from the prosecutor, Brazofsky
added that defendant has visited Cantor's home four times, which would include
the night of the murder:
A. Where I ask Mr. Tung, "Is she dating anybody?" At
this point he doesn't answer. He obviously knows. He's
been to Mr. Cantor's house at least three times at this
point. Four times. And he -- he's very vague with his
answer. When I follow up with that, he again says, "I'm
assuming," and still doesn't give me the information.
It's almost as though he's --
[DEFENSE COUNSEL]: Judge, it's opinion again.
THE COURT: All right.
[DEFENSE COUNSEL]: The words speak for
themselves.
[PROSECUTOR]: The context is also important.
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THE COURT: But let's not give opinions on it, because
they are hearing the tape.
After the part of defendant's statement where he said he went to Cantor's
house because he "found out something," the playback paused and Brazofsky
stated, again without being prompted by a question from the prosecutor:
When I asked him this question, he answers, "Well, I
know where he was working. I found out something."
He pauses and doesn't -- he never says at this point how
he found it out or where he found it out. He still hasn't
disclosed the use of the [software] on the laptop . . . that
he got his identity and his e-mail from the e-mail
account used by [S]. But you can tell he's thinking
about -- when he pauses, he's not answering --
At that point, the trial judge sustained the defense objection to Brazofsky
testifying as to what defendant was thinking.
Towards the end of the day, Brazofsky stopped the playback, and said,
again unprompted by any question from the prosecutor:
I go over the part with him about the computer. And,
as I'm detailing how we would search or what we would
look at on the computer, he starts -- Tony Tung starts
getting nervous. He's looking at me. He's clearly upset
by this line of questioning. And when I explained to
him how it could be beneficial if someone was on the
computer at a certain time when an incident happened
[fifteen] miles away at that exact moment, that that
could be important evidence, he again declined to allow
any search of his computer. And he --
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[DEFENSE COUNSEL]: Objection, your Honor.
That's his right to object to it.
[PROSECUTOR]: That's fine. But that's the statement.
That's what Mr. Tung chose to do.
THE COURT: I'll allow it.
A. And then I went on a little bit further and, you know,
I explained to him that there were other people being
interviewed. And he mentions that he's the prime
suspect. And I explained to him that, you know, if he
were to do my job, who would he -- you know, who
would he interview? Who would he put in the list of
suspects? And the only person he answered was "Me."
He didn't say anybody else.
When trial resumed two days later, Brazofsky was asked to explain a
portion of the statement. Brazofsky responded:
We are at the point where I've begun to confront Mr.
Tung on the fact that he's not being truthful about his
whereabouts. This is the point where his demeanor has
changed. He's starting to chain smoke and shift around
in his seat.
Brazofsky was asked to describe what happened when Detective Fisco
asked defendant: "Did you go home first or did you go right after you dropped
your daughter off into Teaneck?" Brazofsky stated:
This was another point where Mr. Tung, his demeanor
completely changed. He just basically sat there, stared
at the floor. And he would look up, would look at
Detective Fisco and I, and just was completely
unresponsive. Never answered the question. I believe
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he was asked two or three times, tell us about last night
in Teaneck. And then there's just silence. Detective
Fisco asks again, did you -- you left after you dropped
your daughter off? And he just sits there and stares at
us and, again, looks at the ground. He starts to just --
kind of slouches forward in his chair.
And then the last point in time where Detective Fisco
says, "Did you go home first or did you go right after
you dropped off your daughter," I think it's like over ten
seconds of just complete silence, where he can't answer,
doesn't answer the question.
And then he asks to use the bathroom so that he cannot
answer that question and stop --
[DEFENSE COUNSEL]: Objection, you Honor.
THE COURT: I'll sustain it.
The prosecutor, in his closing, asked the jury to "[r]emember the vague
answers that [defendant] gives." The prosecutor also made several references
to defendant's "lie[s]" to the police in the statement. After reviewing the video
footage near defendant's apartment, the prosecutor said that "we now know that"
defendant's statement that he stayed home all night "is a lie" because "[h]e is out
and about and off the grid" at 10:40 p.m.
The prosecutor said Brazofsky told defendant that if it were Brazofsky
being questioned, his responses would have been clear and unequivocal. The
prosecutor remarked, "That's what truth sounds like," and he contrasted it with
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defendant's responses, which he likened to "a cat-and-mouse game" that "hardly
. . . sounds like someone who is innocent and who has stated the truth, which we
know he did not . . . ."
Near the end of closing, the prosecutor summarized: "Ladies and
gentlemen, this case is about motive, motive, motive. Where that body was
found and the circumstances under which it was found. He lied in his statement
to the police. If he lied, then he must be guilty."
At its request, the jury heard the full audio statement again in open court
the following day, using the transcript as an aid.
Defendant raises the following issues on appeal:
POINT I: BECAUSE INTERROGATORS FAILED
TO SCRUPULOUSLY HONOR MR. TUNG'S
UNAMBIGUOUS ASSERTION THAT HE WAS
"NOT WAIVING THE RIGHT" TO COUNSEL
DURING QUESTIONING, THE LOWER COURT
ERRED BY FINDING HIS SUBSEQUENT
STATEMENT ADMISSIBLE. U.S. CONST.
AMENDS. V, XIV.
POINT II: THE COURT ERRED BY PERMITTING
THE STATE, OVER THE DEFENDANT'S
OBJECTION, TO SHARE WITH THE JURY MR.
TUNG'S ASSERTIONS OF HIS FOURTH
AMENDMENT RIGHT TO BE FREE OF
UNREASONABLE SEARCHES, AND HIS FIFTH
AMENDMENT RIGHT TO COUNSEL. U.S. CONST.
AMENDS. IV, V, XIV; N.J. CONST. ART. I, ¶¶ 1, 7,
9, 10.
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POINT III: THE COURT ERRED BY PERMITTING
THE STATE, OVER THE DEFENDANT'S
OBJECTION, TO ELICIT FROM MR. TUNG'S
INTERROGATOR IRRELEVANT AND
PREJUDICIAL EXPRESSIONS OF LAY BELIEF IN
MR. TUNG'S GUILT. U.S. CONST., AMENDS. V,
XIV; N.J. CONST. ART. I, ¶¶ 1, 9, 10.
POINT IV: THE COURT UNDERCUT MR. TUNG'S
DEFENSE BY FAILING TO INSTRUCT THE JURY,
CONSISTENT WITH THE MODEL CHARGES, (1)
THAT THE IDENTITY OF THE PERSON WHO
COMMITTED THE CRIME IS AN ELEMENT OF
THE OFFENSE WHICH THE STATE HAS THE
BURDEN OF PROVING BEYOND A REASONABLE
DOUBT, AND (2) THAT THE DEFENDANT'S
PRESENCE AT THE SCENE OF THE CRIME IS AN
ELEMENT OF OFFENSE WHICH THE STATE HAS
THE BURDEN OF PROVING BEYOND A
REASONABLE DOUBT. U.S. CONST. AMENDS.
IV, V, XIV; N.J. CONST. ART. I ¶¶ 1, 9, 10. (NOT
RAISED BELOW).
POINT V: BECAUSE THE STATE FAILED TO
MEET ITS BURDEN OF PROVING BEYOND A
REASONABLE DOUBT THAT MR. TUNG WAS
THE PERPETRATOR, THIS COURT SHOULD
REVERSE THE DENIAL OF DEFENDANT'S
MOTION FOR A JUDGEMENT OF ACQUITTAL.
ALTERNATIVELY, BECAUSE OF INDIVIDUAL
AND CUMULATIVE ERROR, THIS COURT
SHOULD REMAND FOR A NEW TRIAL.
A-3692-15T1
23
V. Miranda Issue
Defendant argues that the court erred by failing to suppress his statement
because the police did not "scrupulously honor" his "assertion of his right to
counsel during questioning."
Brazofsky read defendant his Miranda rights and went over the form with
him. Brazofsky explained that, in New Jersey, any time a person's name comes
up in an investigation and they are questioned, that person is advised of his
rights. Brazofsky stated, "You're not under arrest. You could leave any time
you want. We hope that you'll cooperate with us, because the sooner we can
determine whether you are or not involved in this incident . . . the quicker we
get you out of here." To the question "[w]ould you be willing to sit down with
us for a little while and talk with us?" defendant answered, "Yeah. If I find out
what's going on, yeah."
The following exchange occurred regarding defendant's right to counsel:
Q: Do you understand that? It basically means right
now we wanna know if you would talk to us. You have
the right to say no at any time. You could tell me no
now. You could tell me no in ten minutes. Okay? Um,
do you understand what these rights are that I read to
you?
A: I read the above statement of my rights, also been
read aloud to me. I understand what my rights are. I
A-3692-15T1
24
am now willing to answer questions without the
presence of an attorney.
Q: Of an attorney.
A: That's like -- that's like giving up the right?
Q: Right.
A: I am not waiving the right.
Q: Well, what we wanna do is we wanna talk to you.
A: Okay.
Q: But if you want an attorney, we can't talk to you.
A: Well, I don't know what you guys wanna talk about,
so, you know . . . .
Q: Well, I'll explain it to you.
A: Okay.
Q: Basically, what this is, if you change your mind in
30 seconds, you don't wanna talk to me anymore and
you wanna get an attorney -
A: It didn't say that.
Q: - you can do it at any time.
A: It didn't say that here, though.
Q: No, it does.
A: Oh.
A-3692-15T1
25
Q: It says, right now, I am now willing to answer
questions without the presence of any attorney, but it
says right here, you may stop answering questions or
request an attorney at any time.
A: Oh, okay.
Q: And we will respect that. Okay?
A: Okay.
Q: Um, would you be willing to talk to us, just help us
(inaudible).
A: Yes, yes. Yeah, sure.
The trial judge denied defendant's motion to suppress the statement,
noting, "I think it was prudent and proper to give the Miranda warnings, which
were done." The judge held that defendant "knowingly and intelligently
waived" his rights. The judge found: "[Defendant] gave a statement willingly.
There was no coercion of any type. He was given food, he was given drink, he
was treated well."
On appeal, defendant argues that when he stated "I am not waiving the
right," the police were obliged to immediately cease questioning until he had an
opportunity to consult with counsel or, at the least, ask him to clarify what could
be considered "an equivocal request for an attorney."
A-3692-15T1
26
Our Supreme Court has held that even "an equivocal request for an
attorney" cannot be disregarded. State v. Chew, 150 N.J. 30, 63 (1997). In
Chew, the Court held that the defendant's request to his mother to phone his
attorney, while police were escorting him out of his home, was an ambiguous
invocation of the right to counsel that the police should have clarified before
proceeding with the morning interrogation. Id. at 58-59, 63. The Court noted,
however, that the defendant later "requested and was granted permission to call
his attorney" during the interrogation at the police station. Id. at 46. A
subsequent statement made that evening was admissible because the defendant
had initiated the conversation and given a valid waiver of his rights. Id. at 58-
59, 66.
In State v. Messino, 378 N.J. Super. 559, 573, 577-78 (App. Div. 2005),
we rejected the defendant's argument that asking a police officer, "Do you think
I need a lawyer?" during a break in interrogation was an ambiguous request for
counsel. The officer told the defendant that he had the right to counsel and that
it "was his call" whether to invoke that right. Id. at 573. We explained:
In our view, defendant's statement to [the officer] was
not a request for an attorney. Defendant merely asked
the officer whether he thought defendant needed a
lawyer, an inquiry that readily may be distinguished
from other statements considered to be requests for
counsel.
A-3692-15T1
27
[Id. at 578.]
The circumstances in this case are akin to those in Messino. The exchange
between Brazofsky and defendant was an additional explanation that defendant
could stop the interrogation and seek counsel at any time, and it provided
Brazofsky with another opportunity to assure defendant that the choice was his.
Defendant's statement "I am not waiving the right" was squarely within the
context of a discussion with Brazofsky of the nature and scope of defendant 's
rights, not an expression of a present desire for counsel. Brazofsky informed
defendant that he could stop answering questions at any point he chose and seek
counsel, that the Miranda form confirmed this, and that the questioning officers
would respect his request. After receiving that explanation, defendant
proceeded to sign the form and voluntarily answer questions. When, hours later,
defendant said he wanted to "see what my attorney says" before answering any
more questions, the interrogation ceased.
We affirm the trial judge's determination that defendant's choice to speak
to the police without counsel present was knowing, intelligent, and voluntary.
VI. Defendant's Invocation of Rights
Defendant contends that his conviction must be reversed because of
repeated references at trial to his statements that he wished to consult with
A-3692-15T1
28
counsel and refused to consent to a search of his computer or car. He argues
that the admission of such references improperly encouraged the jury to make
negative inferences against him because of the "invocation of his Fourth and
Fifth Amendment rights." We agree.
A. Invocation of Right to Counsel
Defendant notes that the prosecutor "played the unabridged recording" of
defendant's statement, which included, at the very end, his request for counsel,
and elicited additional live testimony from Brazofsky that the interview stopped
when defendant stated that he would like to call his attorney. Because defendant
did not object, we analyze this issue under the plain error standard. R. 2:10-2.
Plain error is an error or omission that is "clearly capable of producing an
unjust result . . . ." R. 2:10-2. The possibility of an unjust result must be
"sufficient to raise a reasonable doubt as to whether the error led the jury to a
result it otherwise might not have reached." State v. Melvin, 65 N.J. 1, 18-19
(1974); see also State v. Macon, 57 N.J. 325, 335 (1971) ("No matter how a test
may be stated, the question whether an error is reason for reversal depends
finally upon some degree of possibility that it led to an unjust verdict.").
Under State v. Feaster, 156 N.J. 1, 75-86 (1998), the trial court should
either have excised these references or provided the jury with a clear limiting
A-3692-15T1
29
instruction. In Feaster, our Supreme Court held that "trial courts should
endeavor to excise any reference to a criminal defendant's invocation of his right
to counsel." Id. at 75. When "testimony explaining why an interview or
interrogation was terminated" is essential, "a cautionary instruction should be
provided that explains to the jury that people decline to speak with police for
many reasons, emphasizing that a defendant's invocation of his right to counsel
or right to remain silent may not in any way be used to infer guilt." Id. at 76.
However, a trial court's failure to follow the Feaster stricture of excision
or a cautionary instruction does not necessarily equate to reversible or plain
error. The Feaster Court found the error of failing to excise the reference or
provide a cautionary instruction was harmless due to "the fleeting nature of the
reference" in testimony, the fact that the prosecutor "did not comment on the
matter during summation," and the trial judge's "emphatic instruction" that
defendant's failure to testify could not be held against him, which "impart[ed] to
the jury the respect to be accorded defendant's decision to remain silent." Id. at
77; see also State v. Tilghman, 345 N.J. Super. 571, 576-77 (App. Div. 2001)
(finding that "inviting the jury to infer guilt from the request for an attorney"
was "egregious and inexcusable" and one of several "foul blows" by the
prosecutor that, considered together, required reversal).
A-3692-15T1
30
Here, the trial court neither excised the two references in the record to
defendant invoking his right to counsel to end the interrogation, nor provided a
cautionary instruction following a determination that inclusion of the references
was necessary to avoid juror confusion. Given the longstanding standard of
Feaster and the constitutional dimension of defendant's right to counsel, the trial
court should have addressed this issue regardless of whether defense counsel
objected. Standing alone, these references without a cautionary instruction
might not constitute plain error. Combined with other errors, however, they had
the clear capacity to undermine the verdict.
B. Refusal of Consent to Search
Defendant's audio statement included (1) defendant's response to
Brazofsky that he would like to speak to his lawyer before allowing a computer
search; (2) Brazofsky's subsequent entreaties to allow a computer search to
prove defendant was home; (3) police comments to defendant that an innocent
man would gladly consent to a search of his computer and (4) defendant's refusal
to allow a car search without consulting his lawyer. The jury heard these
exchanges twice, during trial and then again during deliberations. The jury also
heard Brazofsky's testimony with repeated references to his unsuccessful
attempts to obtain defendant's consent to the searches.
A-3692-15T1
31
Defense counsel did not object to the playback, but did object to one of
Brazofsky's live comments, noting that defendant had the right to object to a
search of his computer. The State contends that this "single belated objection"
should not be deemed an objection to all references to defendant's refusal of
consent to search. Even reviewed under the plain error standard, however,
Brazofsky's repeated references to defendant's refusal were improper.
No published case in New Jersey has addressed whether evidence
regarding a defendant's refusal to consent to a search may be properly admitted
at trial. However, federal and state courts have uniformly held that, because
suspects have a constitutional right to refuse consent to a search, it is improper
to allow a refusal to consent to be used at trial as evidence suggesting guilt or
guilty knowledge. See United States v. Thame, 846 F.2d 200, 206-07 (3d Cir.
1988) (concluding that it was error for the prosecutor to argue in summation that
the defendant's refusal to consent to a full search of his luggage at a train station
was evidence of his guilt, but reversal was not required where there was
considerable other evidence of his guilt); see also United States v. Prescott, 581
F.2d 1343, 1351 (9th Cir. 1978) (reversing the defendant's conviction where the
trial court erroneously allowed evidence from the forcible entry and warrantless
search of her apartment and holding that her refusal to consent to a warrantless
A-3692-15T1
32
search was "privileged conduct which [could not] be considered as evidence of
criminal wrongdoing").
Federal "circuit courts that have directly addressed this question have
unanimously held that a defendant's refusal to consent to a warrantless search
may not be presented as evidence of guilt." United States v. Runyan, 290 F.3d
223, 249 (5th Cir. 2002); accord United States v. Dozal, 173 F.3d 787, 794 (10th
Cir. 1999) (noting that "asking a jury to draw adverse inferences from such a
refusal may be impermissible if the testimony is not admitted as a fair response
to a claim by the defendant or for some other proper purpose"); United States v.
McNatt, 931 F.2d 251, 257-58 (4th Cir. 1991) (holding that evidence of the
defendant's refusal to consent to search was admissible to respond to the
defendant's claim that police planted evidence, not as an inference of guilt).
Likewise, various state courts have consistently held that evidence of a
defendant's refusal to consent to a search is inadmissible at trial. In a sexual
assault case, the defendant, on the advice of counsel, refused to voluntarily
provide a DNA sample, which was ultimately obtained pursuant to a warrant.
State v. Gauthier, 298 P.3d 126, 129-30 (Wash. Ct. App. 2013) (finding
"manifest constitutional error" where the prosecutor argued in her closing that
the defendant refused to provide a DNA sample because he was guilty). The
A-3692-15T1
33
Gauthier court held that "[t]he jury should not be allowed to infer guilt" from a
defendant's refusal to consent to a warrantless search. Id. at 131.
The Gauthier court also rejected the argument, advanced by the State here,
that "the Fourth and Fifth Amendment rights function differently," so the
concerns in cases regarding the right to silence are inapplicable to a consent to
search analysis. Id. at 131-32 (noting that "exercising a constitutional right is
not admissible as evidence of guilt"); see also Thame, 846 F.2d at 206-07(finding "little, if any, valid distinction between the privilege against self-
incrimination and the privilege against unreasonable searches and seizures
which is relevant to the propriety of the prosecutor's argument" that defendant's
refusal to consent to a full search was evidence of guilt).
The analysis of this refusal-to-consent issue by other state courts is not as
in-depth as in Gauthier, but typically the courts view the use of non-consent
evidence as an impermissible burden on rights protected by the Fourth
Amendment of the U.S. Constitution. See Padgett v. State, 590 P.2d 432, 434-
35 (Alaska 1979) (noting that the Fourth Amendment right to refuse consent to
a search "would be effectively destroyed if, when exercised, it could be used as
evidence of guilt"); see also Longshore v. State, 924 A.2d 1129, 1159 (Md.
2007) ("An unfair and impermissible burden would be placed upon the assertion
A-3692-15T1
34
of a constitutional right if the State could use a refusal to a warrantless search
against an individual."); Sampson v. State, 122 P.3d 1255, 1260-61 (Nev. 2005)
(holding that it was "constitutional error for a prosecutor to elicit testimony or
comment on a defendant's refusal to consent to a warrantless search to support
an inference of guilt"); Commonwealth v. Tillery, 611 A.2d 1245, 1249 (Pa.
Super. Ct. 1992) (noting that the assertion of a constitutional right cannot be
used to infer the presence of a guilty conscience); Simmons v. State, 419 S.E.2d
225, 226-27 (S.C. 1992) ("[T]he law is clearly established that the state cannot,
through evidence or argument, comment upon an accused's exercise of a
constitutional right.").
Some state courts have reasoned that the same principles disallowing any
inference of guilt from a defendant's exercise of the right to remain silent under
the Fifth Amendment apply when analyzing a refusal to consent under the Fourth
Amendment. See State v. Palenkas, 933 P.2d 1269, 1279-80 (Ariz. Ct. App.
1996); see also Mackey v. State, 507 S.E.2d 482, 484 (Ga. Ct. App. 1998). Other
courts have held that the admission of evidence of refusal to consent is improper
because its prejudicial impact is far greater than its probative value. See People
v. Eghan, 799 N.E.2d 1026, 1034-36 (Ill. 2003); see also State v. Thomas, 766
N.W.2d 263, 271 (Iowa Ct. App. 2009).
A-3692-15T1
35
Here, the State contends that "the evidence of defendant not giving
consent was admissible," citing to Dozal and McNatt as establishing that
evidence of refusal to consent "is admissible where admitted for a proper
purpose." However, the evidence in Dozal was used "not to impute guilty
knowledge to [the defendant], but for the proper purpose of establishing
dominion and control over the premises where a large part of the cocaine was
found." Dozal, 173 F.3d at 794. Similarly, the evidence in McNatt was
admissible because it plainly undercut the defense argument that the police had
planted evidence. McNatt, 931 F.2d at 256.
No such probative value attaches here to evidence of defendant's refusal
to consent. Not only did Brazofsky plainly suggest during the interrogation that
an innocent man would have been glad to agree to a search and that he could not
understand why defendant would want to consult an attorney before agreeing,
but his live testimony suffered from the same problems. Before the statement
playback began, Brazofsky told the jury he "just reinforced" that a consent
search could "clear [defendant] as a suspect," but that defendant "still declined
to allow us to look at the computer." As part of his commentary during pauses
of the playback, Brazofsky improperly opined that defendant refused a consent
A-3692-15T1
36
search of his computer even though, if he was innocent, it "could be beneficial"
to him.
The question, then, is whether references to defendant's refusal to consent
to a search was plain error. As part of this determination, a reviewing court may
consider whether, absent the evidence admitted in error, there was
overwhelming evidence of the defendant's guilt. See, e.g., State v. Camacho,
218 N.J. 533, 554-55 (2014) (holding that failure to give a no-adverse inference
charge was harmless error because the jury was instructed that the defendant had
no obligation to testify, and the State presented "overwhelming evidence" of
guilt); State v. Sterling, 215 N.J. 65, 105-06 (2013) (holding erroneous joinder
of cases was harmless as to the defendants against whom there was
overwhelming evidence of guilt, but not as to the defendant against whom the
evidence was weaker).
Here, lacking any direct evidence of defendant's presence in New Jersey
on the night of the murder, the State relied on circumstantial evidence of a strong
motive, a false claim of being home all night except for a trip to buy beer, as
well as the timing of defendant's massive computer wipe. In these
circumstances, the repeated suggestion that defendant refused consent because
he knew he was guilty and had something to hide was prejudicial. The sheer
A-3692-15T1
37
number of references to defendant's refusal, both in the statement and in
Brazofsky's live testimony, prevents a finding that the references were fleeting
or isolated.
Moreover, the court did not give a limiting instruction to the jury that it
could not consider defendant's refusal to consent as evidence of guilt. The trial
judge instructed the jury:
The [S]tate introduced evidence of an audio recorded
statement . . . . Neither the comments made by the
detectives nor opinions expressed by the detectives
constitute evidence and may not be considered by you
as evidence. It is solely Sui Kam Tung's statement and
responses to the questions that may be considered.
This instruction directed the jury to disregard the police comments within
the audio recording, but not to disregard Brazofsky's similar comments during
trial. Further, the instruction that the jury should consider defendant's responses
opened the door to consideration of defendant's repeated refusals to consent as
evidence that defendant had something to hide. The repeated references to
defendant's refusal to consent to both a search of his car and his computer were
"clearly capable of producing an unjust result." R. 2:10-2.
VII. Witness Opinion of Defendant's Dishonesty
Defendant argues that the prosecutor elicited inadmissible testimony from
Brazofsky regarding his belief in defendant's guilt. Brazofsky's testimony
A-3692-15T1
38
conveyed to the jury that Brazofsky could tell defendant was a guilty liar, and
the prosecutor reinforced this impression in closing.
Defense counsel objected that it was "an opinion of the officer" when
Brazofsky testified that defendant "obviously . . . wasn't being truthful" when
he answered the question as to whether S. had a boyfriend, and the trial court
sustained the objection to that "characterization." On three other occasions, the
trial court sustained objections to Brazofsky's comments about what defendant
was thinking or "realiz[ing]" at the time. The only occasion where the trial court
failed to sustain a defense objection to Brazofsky's characterization of
defendant's answers occurred when Brazofsky gave an opinion that defendant's
answer was "odd." Defense counsel did not object to any other statements by
Brazofsky touching on defendant's guilt or veracity. Although partially raised,
we review this issue under the plain error standard as well. R. 2:10-2.
Defendant contends that Brazofsky's testimony regarding defendant's
demeanor, emotional state, and veracity should all have been excluded. As to a
defendant's demeanor, fact witnesses are permitted to testify regarding what they
"perceived through one or more of the senses." State v. McLean, 205 N.J. 438,
460 (2011). For police officers, such testimony routinely consists of "a
description of what the officer did and saw." Ibid. "Testimony of that type
A-3692-15T1
39
includes no opinion, lay or expert, and does not convey information about what
the officer 'believed,' 'thought' or 'suspected,' but instead is an ordinary fact-
based recitation by a witness with first-hand knowledge." Ibid. Brazofsky's
descriptions of defendant's slumping forward, slouching, freezing, and staring
at some points while avoiding eye contact at others fall into the category of
permissible first-hand observations.
A witness may offer lay opinion testimony on an individual's emotional
state if it "(a) is rationally based on the perception of the witness and (b) will
assist in understanding the witness' testimony or in determining a fact in issue."
N.J.R.E. 701. Brazofsky's observations that defendant appeared aggravated at
one point and was "clearly upset" at another were his opinions based on first-
hand perception of defendant's appearance, demeanor, and reactions, which fall
within the lay opinion rule.
Brazofsky's opinions as to defendant's truthfulness and guilt, however,
were not admissible as either demeanor evidence or lay opinion. In McLean,
205 N.J. at 459, for example, the Court held that, while it was appropriate for a
police officer to testify regarding the actions he observed, it was improper to
allow the officer to opine that those actions were indicative of a narcotics
transaction. Instead, "a jury's determination of criminal guilt or innocence is its
A-3692-15T1
40
exclusive responsibility." State v. Odom, 116 N.J. 65, 77 (1989). It is "wholly
improper" for a witness to opine that the defendant is guilty of the crime charged.
Ibid.; see also, e.g., McLean, 205 N.J. at 461 (noting that witnesses may not
"intrude on the province of the jury by offering, in the guise of opinions, views
on the meaning of facts that the jury is fully able to sort out" or "express a view
on the ultimate question of guilt or innocence").
Our Supreme Court has noted:
We go to extraordinary lengths in ordinary criminal
cases to preserve the integrity and neutrality of jury
deliberations, to avoid inadvertently encouraging a jury
prematurely to think of a defendant as guilty, to assure
the complete opportunity of the jury alone to determine
guilt, to prevent the court or the State from expressing
an opinion of defendant's guilt, and to require the jury
to determine under proper charges no matter how
obvious guilt may be. A failure to abide by and honor
these strictures fatally weakens the role of the jury,
depriving a defendant of the right to trial by jury.
[State v. Frisby, 174 N.J. 583, 594 (2002) (quoting
State v. Hightower, 120 N.J. 378, 427-28 (1990)
(Handler, J., concurring in part, and dissenting in part)
(citations omitted)).]
Neither should a witness offer an opinion that a defendant's statement is a
lie. Ibid. (noting that "the mere assessment of another witness's credibility is
prohibited"). "[C]redibility is an issue which is peculiarly within the jury's ken
and with respect to which ordinarily jurors require no expert assistance." State
A-3692-15T1
41
v. J.Q., 252 N.J. Super. 11, 39 (App. Div. 1991); see also State v. Pasterick, 285
N.J. Super. 607, 620 (App. Div. 1995) (finding plain error where the trial court
allowed testimony of an expert rebuttal witness regarding defendant's
truthfulness, concluding "[t]here is no provision in our legal system for a 'truth-
teller' who is authorized to advise the jury on the basis of ex parte investigations
what the facts are and that the defendant's story is a lie").
Police testimony concerning a defendant's guilt or veracity is particularly
prejudicial because "[a] jury may be inclined to accord special respect to such a
witness," and where that witness's testimony goes "to the heart of the case,"
deference by the jury could lead it to "ascribe[] almost determinative
significance to [the officer's] opinion." Neno v. Clinton 167 N.J. 573, 586-87
(2001); see also Frisby, 174 N.J. at 595 (noting that "[t]he effect of the police
testimony essentially vouching for" the version of events contrary to defendant
"cannot be overstated").
Here, Brazofsky's improper testimony covered three areas: (1) an
unsolicited remark that, by the time he was questioning defendant on March 7,
2011, defendant had been to Cantor's home "[f]our times," meaning the three
visits substantiated by other witnesses and a fourth visit to murder Cantor; (2)
A-3692-15T1
42
testimony regarding defendant's silences; and (3) opinion that defendant's
answers were untruthful, "evasive," "vague" and "odd."
The jury charge, which included a general instruction to disregard the
officers' "comments" during defendant's interrogation, was inadequate to
address the multiplicity of times during the playback when the officers expressly
stated they knew defendant was lying and firmly believed in his guilt. While
the judge sustained an objection to Brazofsky's characterization that "obviously
[defendant] wasn't being truthful," he allowed the admission of other testimony
regarding Brazofsky's personal belief that defendant was a liar.
Most troubling is that Brazofsky frequently made comments on the
manner in which defendant gave responses, suggesting that Brazofsky's own
experience and specialized training enabled him to determine that defendant was
lying. Brazofsky told the jury: "I'm also assigned to the polygraph unit since
2005. I'm one of three polygraph examiners for the office. We conduct
criminal-specific polygraph examinations for local towns, the county
prosecutor's office and state and other agencies."
The jury heard Brazofsky repeatedly tell defendant that he had truth-
telling skills. During his live testimony, Brazofsky stressed to the jury that,
when asked if evidence would surface showing that defendant went to New
A-3692-15T1
43
Jersey, defendant's responses were "vague" but "not denials," while an honest
person would have answered "no, absolutely not, I was home all night, you won't
see me on any camera or anywhere else."
The overall message from this evidence was that Brazofsky could tell that
defendant was lying about not leaving Manhattan on the night of the murder.
The absence of a video recording of the interrogation exacerbated the problem
presented by Brazofsky's opinion of defendant's veracity. The jury had no other
source to learn how defendant was acting during the interview, causing greater
danger that the jury placed reliance on Brazofsky's truth-telling expertise, rather
than making its own credibility determinations.
Further, the prosecutor's statements during closing that Brazofsky's
testimony established "what truth sounds like," and defendant "must be guilty"
because he "lied" to the police invited the jury to give weight to Brazofsky's
veracity opinion. Independent video evidence showed that defendant was not
truthful about only leaving his apartment once to buy beer. But the jury's
evaluation of whether his denial of guilt was credible was tainted by Brazofsky's
clearly and repeatedly stated opinion. When combined with other errors, this
deprived defendant of a fair trial. See State v. Jenewicz, 193 N.J. 440, 473-74
(2008).
A-3692-15T1
44
VIII. Jury Charge
Because we reverse and remand for further proceedings on other grounds,
we need not discuss the jury charge at length. Defendant argues that the trial
court's failure to include, sua sponte, the model jury charges on identification
and alibi was plain error. We reject this argument.
The model jury charge on identification that defendant references was not
approved until October 26, 2015, over a month after trial had begun. In addition,
eyewitness identification was not at issue in this case, so many of the concerns
raised in the cases and addressed in the model jury charges do not apply. See
State v. Henderson, 208 N.J. 208, 245 (2011).
Defendant did not raise an alibi defense. Moreover, in arguing that he was
entitled to an alibi charge, defendant ignores our longstanding Supreme Court
precedent establishing that, while charging the jury as to alibi might be useful,
it is hardly necessary in every case where the defendant claims to have been
elsewhere at the time of the crime. State v. Garvin, 44 N.J. 268, 271-75 (1965);
see also State v. Peetros, 45 N.J. 540, 543-45 (1965) (finding an alibi charge
unnecessary when "[t]he court's charge correctly described the State's burden to
prove guilt beyond a reasonable doubt, requiring an acquittal if a reasonable
doubt remained after a consideration of 'all the evidence' in the case").
A-3692-15T1
45
The charge given correctly advised the jury that the State was obliged to
prove beyond a reasonable doubt that defendant was the perpetrator, includ ing
proving that defendant was in Cantor's home in Teaneck on the night of the
murder.
Defendant's argument that the court should have granted his motion for a
judgment of acquittal at the conclusion of the State's case is without sufficient
merit to require discussion here. R. 2:11-3(e)(2).
The admission of evidence concerning defendant's exercise of his right to
counsel and his right to refuse a search was error. The testimony of a detective,
who the jury knew had administered lie detector tests for ten years, that
defendant was not truthful was improper. The cumulative error deprived
defendant of a fair trial.
We reverse and remand for further proceedings. We do not retain
jurisdiction.
A-3692-15T1
46