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NOT FOR PUBLICATION WITHOUT THE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,
APPROVED FOR PUBLICATION
AS REDACTED
v. June 28, 2019
SUI KAM TUNG, a/k/a APPELLATE DIVISION
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
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to 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
middle child told defendant she met "a guy named Robbie" who was
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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"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 confirmed that defendant bought beer between 1:00 and 2:00 a.m.
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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.
Brazofsky asked:
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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 after you put your kids to bed? No. I
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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
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.
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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 pho ne 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.
In his opening statement, the prosecutor asked the jury to "pay very,
very, very careful attention to the statement of the defendant . . . ." He said,
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"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.
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
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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.
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:
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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 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
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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.
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.
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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, 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.
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[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:
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,
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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.
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 -
-
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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 --
[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:
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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
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
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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
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
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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.
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
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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.
[At the direction of the court, the published version
of this opinion omits Part V, addressing
defendant's argument that his statement to police
should have been suppressed due to a violation of
his Miranda rights, and Part VIII, addressing
defendant's argument that the trial court erred by
failing to sua sponte charge the jury on
identification and alibi, and his claim that the court
should have granted his motion for a judgment of
acquittal. See R. 1:36-3.]
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
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.
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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
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
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24
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).
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.
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25
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.
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
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26
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 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
A-3692-15T1
27
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
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
A-3692-15T1
28
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 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.").
A-3692-15T1
29
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).
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
A-3692-15T1
30
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 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).
A-3692-15T1
31
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
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
A-3692-15T1
32
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 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 cou rt
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.
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33
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
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.
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34
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 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
A-3692-15T1
35
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
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").
A-3692-15T1
36
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)
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."
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37
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
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
A-3692-15T1
38
errors, this deprived defendant of a fair trial. See State v. Jenewicz, 193 N.J.
440, 473-74 (2008).
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.
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39