Date: 04-22-2016

Case Style: STATE OF NEW JERSEY VS. TINA LUNNEY

Case Number: A-0774-13T1

Judge: JOSEPH L. YANNOTTI

Court: SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION

Plaintiff's Attorney: Carolyn A. Murray, Andrew R. Burroughs

Defendant's Attorney: Joseph E. Krakora, Lauren S. Michaels

Description: The record reveals the following facts and procedural
history.
A. Suppression Hearing
According to Detective Robert Prachar of the Homicide
Squad, Essex County Prosecutor's Office (prosecutor's office),
he initially met defendant on July 23, 2009, at her home in
Fairfield, where Zoppi had been found dead that morning. Later
that day, defendant and her husband, Christopher Lunney
(Christopher),1 gave videotaped statements at police
headquarters. Also at headquarters, defendant signed the
reverse side of a suicide note left at the scene that was
allegedly written by Zoppi. Prachar recalled the note stating,
"tell the kids I love them, you don't need me." No suspects
were identified at that time.
On July 24, Christopher filed a missing person's report for
his wife. Detective Sergeant Louis Cammarata of the Fairfield
Police Department (FPD) stated that, just before 5:00 a.m. on
July 27, 2009, Deputy Chief Steven Gucken informed him that one
of defendant's neighbors had seen her "walking down the street"
near her home. Officer Frank Tracy was dispatched and
transported defendant to police headquarters.
Shortly thereafter, Detective Charles Zampino of the FPD
arrived at headquarters. He and Cammarata drove defendant, who
was not handcuffed, to the prosecutor's office between 5:20 a.m.
and 5:30 a.m. Defendant asked Cammarata whether he had seen her
children, to which he replied that he had not. Upon their
arrival at around 6:00 a.m., Lieutenant Michael DeMaio and
Prachar directed them to a conference room. According to
Prachar, defendant was not a suspect at that time. She was
wanted for questioning because she had been reported as a
missing person and the autopsy of Zoppi revealed that Zoppi had
been murdered. Cammarata had assumed that defendant was brought
in for questioning "because of the fact that she was a missing
person." Prachar sought to question defendant about the
circumstances surrounding her mother's death, specifically
whether Zoppi had been "taken, threatened, [or] held against her
will."
Defendant sat at a conference table along with Cammarata,
DeMaio, Prachar, and Zampino. The room did not contain video
recording equipment. Defendant was not handcuffed, nor had she
been advised of her Miranda2 rights. Cammarata recalled that
2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)
A-0774-13T1
5
Prachar asked defendant whether she wanted food or beverage.
Prachar said defendant did not appear drowsy, and both he and
Cammarata testified that they did not believe she was under the
influence of alcohol or drugs.
Prachar began by asking defendant about her previous
whereabouts. According to Cammarata, defendant responded by
stating, "[y]ou want me to tell you what happened to my mother."
Prachar heard defendant say, "I wanna tell you what happened to
my mother." Prachar immediately stopped the questioning.
DeMaio left the conference room and entered the nearby media
room to prepare for the video-recording of defendant's
statement. Prachar left the conference room and returned with a
pre-printed Miranda form in which he had completed the top
portion.
At 6:10 a.m., while sitting at the conference table in the
presence of Cammarata and Zampino, Prachar advised defendant
that he was going to ask questions concerning the death of Zoppi
and then proceeded to read defendant her Miranda rights. He
asked whether she understood her rights and also whether she had
any questions. She responded in the affirmative to the first
question and in the negative to the second question. Prachar
did not ask her to independently read the form. He requested
that defendant sign the bottom of the form, and she complied
A-0774-13T1
6
without hesitation. Prachar did not believe it necessary for
defendant to initial each of the rights because he had
previously interviewed her on July 23, 2009, and learned that
she was educated and employed. Prachar was convinced that she
had waived her rights knowingly and voluntarily.
Prachar and Zampino then walked defendant approximately
thirty feet to the interview room, and she began giving her
video statement at 6:16 a.m. At the Miranda hearing, the
videotaped statement was played for the motion judge and he was
provided with a transcript.
In her forty-four-minute statement, defendant said she
awoke on July 22, 2009, around 7:00 a.m. or 7:30 a.m., and got
her children ready for summer camp. Zoppi came upstairs from
her connected dwelling to defendant's kitchen and made coffee.
Just before defendant left for work, Zoppi asked her to apply
cream to her neck. While applying the cream, defendant saw a
jacket and a necktie near the refrigerator. She proceeded to
demonstrate to the police how she "strangled [her] poor mother"
in the family room. Defendant also demonstrated, with a piece
of paper, how Zoppi struggled and eventually fell to her knees.
Defendant dragged Zoppi to her room by her feet and left her in
front of the couch. She sat on the couch, caught her breath,
took a piece of her mother's stationary, and eventually went
A-0774-13T1
7
back upstairs to her residence after locking Zoppi's door.
At approximately 8:45 a.m., defendant called her supervisor
to alert him that she would be late for work. She arrived at
work around 10:40 a.m., and at 1:15 p.m., went home for lunch.
Before leaving for lunch, she told her co-workers that she
needed to check on her mother, who was not feeling well.
The following morning, defendant wrote a note on her
mother's stationary, suggesting that her mother committed
suicide. Defendant told Christopher and her children that Zoppi
was with defendant's brother Joseph Zoppi.3 Later that morning,
defendant climbed through one of Zoppi's windows because she did
not have a key to her mother's dwelling and placed the note on
the couch. She then cried, released the necktie from her
mother's neck, and placed a blanket over the body. Next,
defendant called her husband and told him to come home from
work. When he arrived, she told him that her mother had "passed
away." Defendant showed Christopher the note purportedly left
by her mother. He called 9-1-1.
On Friday, July 24, 2009, defendant initially planned to
walk to a local convenience store to buy cigarettes. Instead,
she went to Dunkin' Donuts and Target. She then hitchhiked and
3 To avoid confusion, we will refer to Joseph by his first name.
A-0774-13T1
8
took a bus to the Bloomfield Shopping Center and later to
Atlantic City, two places that she used to visit with her
mother.
With respect to whether the murder was financially
motivated, defendant detailed some of her financial issues,
including late mortgage payments, credit card debt, bounced
checks, and the shutting off of her electricity for failure to
pay the bill. She also did not have enough money to pay for an
upcoming family vacation. Defendant, however, denied any
altercation with Zoppi or that her financial issues motivated
the murder of her mother.
During the final few minutes of her statement, Prachar
questioned defendant about whether she previously had an extra
marital affair. She asked Prachar whether her husband knew
about the affair, how he became aware of it, and the reason for
the question. Defendant also inquired whether "this is between
us?" She acknowledged that she had slept with a police officer
"[t]wice a year."
Towards the end of her statement, Prachar asked defendant
whether she wanted another cup of coffee, to which she responded
affirmatively. She then asked whether she could go home. Just
before Prachar and Zampino left the interview room, defendant
asked whether "what [she had] just said to [Prachar], will that
A-0774-13T1
9
stay in this room?"
After her statement, defendant was arrested. An inventory
of her purse revealed prescription bottles and "goodbye" notes
to her children and husband. She was not tested for drugs at
that time. Prachar wrote a letter to the Essex County jail,
which stated:
This is with regard to our conversation about inmate Tina Lunney. Ms. Lunney made no mention of being suicidal, nor did her behavior show any signs by [sic] wanting to harm herself. Discovered on her person were letters to family members where it appears she is saying goodbye. There is no mention of suicide in the letters, but I feel that she should be monitored. If you have any questions contact me[.] . . . Thank you for your attention to this matter.
Prachar said the letter was written as a precautionary measure,
explaining that defendant did not exhibit any signs of suicidal
ideation.
Dr. Robert Latimer, a forensic psychiatrist, testified for
defendant. Latimer examined defendant at the Essex County jail
on March 16, 2010, and May 13, 2011, for a total of six hours,
and prepared a report dated June 23, 2011. During the first
interview, defendant was "incoherent" and "severely burdened
with memory lapses." Latimer did not diagnose her at that time,
although he believed "she had been overwhelmed" and "had
multiple symptoms of mental disease."
A-0774-13T1
10
During Latimer's second interview, he found defendant in a
"manic" state, "laughing constantly and inadequately[] in a
manner that was not consistent with her legal situation."
Defendant told him she felt embarrassed about her adulterous
relationship with a police officer, sad about her mother's
death, and stressed about her financial difficulties. Latimer
diagnosed her as psychotic and found her to be in an "abnormal
affective state."
Latimer believed defendant was in a state of "dissociative
fugue" on July 27, 2009, meaning that her "personality ha[d]
dissociated itself from reality[] in order to avoid unpleasant
affective states." He supported that conclusion by referencing
her trip to Atlantic City, which was taken "without any good
reason." He detailed comments that defendant made during her
July 27, 2009 statement which evidenced her detachment from
reality, such as, "I didn't know"; "I couldn't believe it"; "I
guess I did it. I guess, but I don't know"; "Yes, I did. I
strangled my mother – yes, but – but I don't remember. And I'm
not sure, it must have been somebody else"; "Well, then can I go
home now"; and "Will it stay here."
In further support of his opinion, Latimer referred to
defendant's jail records, which showed that she appeared
"disoriented" upon her arrest and was prescribed Risperdal, an
A-0774-13T1
11
antipsychotic medication, for several months thereafter. Also
according to Latimer, the jail records revealed that defendant
remained in a state of "dissociative fugue" for a significant
period of time and she stated at some point, "they're going to
take me off the books." Latimer concluded that defendant's
disconnect from reality adversely affected her ability to
understand the Miranda warnings, which resulted in her
unknowingly and involuntarily waiving her rights.
On cross-examination, Latimer acknowledged that a November
28, 2009 jail note suggested that defendant's mental stability
had improved, as she had stopped taking Risperdal and "was
hoarding" it. Latimer explained that "people who have the
dissociative fugues . . . come back slowly – back to normal."
Latimer also confirmed the contents of defendant's August 17,
2010 jail record, which stated, "she seems resistant to
accepting a possible plea agreement arranged by her current
attorney. It seems the inmate believes she can beat her case
with the insanity plea, despite her mental stability at this
time."
Dr. Azariah Eshkenazi, a forensic psychiatrist, testified
for the State. Eshkenazi conducted an approximately hour-long
interview of defendant on September 15, 2011, and prepared a
report dated September 20, 2011. During the interview,
A-0774-13T1
12
defendant denied taking any medication and explained that
Latimer had misdiagnosed her as psychotic and manic when, in
fact, she had just been eager to talk to someone. Defendant
also acknowledged receiving and understanding her Miranda rights
and signing the Miranda waiver, despite being very tired and
hungry at the time.
Eshkenazi reviewed defendant's July 27, 2009 videotaped
confession and determined that her statements were logical,
relevant, and responsive. He also found she had never been
hospitalized or treated for mental illness and had been
consistently employed until the day of her arrest. He believed
that there was no evidence to suggest defendant had ever
suffered from a mental disorder. He concluded she had waived
her Miranda rights knowingly, intelligently, and voluntarily.
On cross-examination, Eshkenazi acknowledged that
defendant's jail records reflected she had been prescribed a low
dosage of Risperdal to alleviate the symptoms associated with
adjustment disorder with anxiety and depression.
In a comprehensive written opinion dated July 10, 2012,
Judge Moore denied defendant's motion to suppress the statements
she made to the police on July 27, 2009, concluding that her
purported mental illness of a "dissociative fugue" did "not
render her waiver or statement involuntary." He also found
A-0774-13T1
13
Eshkenazi's testimony credible, "particularly in light of
defendant's own statement to him that she knew she received the
Miranda rights, understood them, and knew she signed the Miranda
waiver."
The motion judge rejected defendant's argument that her
statement at the end of the interview, "Oh, then can I go home?"
indicated she did not understand her Miranda rights. Instead,
the judge noted the statement suggested she "may not have been
aware she was not going to be free to leave at that point," in
light of her lack of previous experience with law enforcement,
and since she was permitted to go home after her prior statement
was taken on July 23, 2009. The judge further concluded that
defendant's other comment, "What I just said to you, will that
stay in this room?" was "made at the end of the final three
minutes of her statement when she was questioned about an affair
she was having." The motion judge determined it meant that "she
did not want to expose her infidelity; not that she failed to
understand the Miranda warnings."
The motion judge also considered the totality of
circumstances, finding:
[T]he Court has considered that defendant was a 42-year-old educated and employed woman with no previous encounters with law enforcement. She was seated at a conference table in a conference room and then at a desk across from two detectives in an interview room at the
A-0774-13T1
14
[prosecutor's office]. The interview took place early in the morning – somewhere between 5:45 and 6:59AM — and while the Court was not presented with evidence as to the exact length of defendant's prior detention, the officers testified that they were first notified defendant was found in Fairfield at approximately 4:45AM, defendant arrived at [the prosecutor's office] between 5:45 and 5:55AM, the Miranda waiver form indicated 6:10AM, and the statement began recording at 6:16AM. Defendant was not handcuffed, and although she indicated she was tired and hungry, she was offered something to eat and was given coffee to drink. Defendant was informed of her constitutional rights and signed a Miranda waiver form. The postMiranda interview was audio and video recorded. Throughout the 46-minute interview — which took place less than 6 minutes after the Miranda warnings — defendant's statements were logical, relevant, and she thoughtfully and appropriately answered the questions asked. Defendant sat forward in her chair with her arms in front of her on the table, and at one point even reenacted a scene.
Additionally, Det. Prachar — a law enforcement officer for over 18 years — testified that defendant signed the Miranda waiver form voluntarily and that she was not forced, threatened, or promised anything to sign. Both he and Sgt. Cammarata — a law enforcement officer for over 25 years — stated that they did not believe defendant was under the effect of narcotics or alcohol and believed the information was provided knowingly, freely, and willingly. On this point, defendant argues that Det. Prachar's letter to the Essex County jail suggesting she be monitored discredits his testimony as to her voluntary waiver. However, it was not until after defendant confessed and was subsequently arrested that an inventory of her pocketbook revealed two prescription bottles and a "goodbye" note to her family. Det.
A-0774-13T1
15
Prachar testified that despite defendant showing no signs of suicide, and the note not explicitly mentioning suicide, he notified the jail as an extra precaution.
B. Trial Testimony
Defendant's family lived in a bi-level home along with
Zoppi. Zoppi's unit had a separate entrance door, and only she
possessed a key. Both defendant's husband and brother stated
that defendant and Zoppi had a good relationship. Defendant was
in charge of her family finances. In the spring of 2007,
Christopher received an inheritance of $37,000 from his father
and, unbeknownst to him, defendant spent all of it. In February
2009, a representative from her mortgage lender sent defendant
her first notice of foreclosure, and three more were
subsequently sent.
In June, defendant wrote two checks from a TD Bank joint
checking account, both in the amount of $289.59, which were
returned for insufficient funds. TD Bank referred the account
for collection to a law firm. Between June 29 and July 1, 2009,
the electricity to defendant's home was shut off for non
payment. Public Service Electric and Gas (PSE&G) received
several checks prior to the shut off, which were returned for
insufficient funds. Although defendant told Christopher that
PSE&G had restored power, a neighbor admitted to Christopher
that he had illegally done it.
A-0774-13T1
16
The Lunneys and four other families planned to rent a
summer vacation home. Each family was required to pay
approximately $3,000. Defendant successfully paid the first
deposit in March 2009, after two prior checks were returned for
insufficient funds. On July 21, a representative from the
rental agency informed defendant that her check for the
remainder of the deposit was returned for insufficient funds.
On July 22, 2009, sometime between 8:30 a.m. and 9:00 a.m.,
defendant called her supervisor, and told him that she would be
late for work. Christopher subsequently received a telephone
call from defendant, stating that "her boss . . . [had given]
her a big time attitude because she was going to be late for
work."
A regional investigator for Chase credit card company
(Chase), testified that, on July 22, 2009, payments from Zoppi's
Visa card were processed to the rental agency at 9:48 a.m. and
to PSE&G at 10:16 a.m. Defendant made the PSE&G payment over
the telephone with Zoppi's credit card.4
Between 10:26 a.m. and 11:18 a.m., defendant exchanged text
4 An audio recording of the 10:16 a.m. telephone call was played for the jury. Although that recording is not part of the appellate record, defendant concedes that she called Chase at that time and gave the representative "Zoppi's information when prompted for the name and social-security number on the account."
A-0774-13T1
17
messages with a co-worker in which defendant wrote that Zoppi
was not feeling well and was acting "depressed." Upon
defendant's arrival at work sometime after 11:18 a.m., she
mentioned to her supervisor that her mother "wasn't feeling
well." However, she told her co-worker that Zoppi was feeling
better and watching television. The co-worker also recalled
defendant informing her that she was going home for lunch to
check on Zoppi. Before leaving, defendant, at 12:43 p.m., made
an online payment to the law firm handling the collection matter
from her work computer using Zoppi's Visa credit card, which
satisfied her outstanding debt.
Christopher testified that he came home for lunch on July
22, 2009, and Zoppi was not there, which was atypical. That
evening, the family arrived home and changed clothes to attend a
wake. Christopher wondered where Zoppi was, as he had not seen
her that day. Defendant told him that Joseph had taken her out.
On July 23, 2009, at approximately 9:00 a.m., defendant
"hysterical[ly]" called Christopher, stating, "there's something
wrong with my mother. You have to come home." Christopher met
defendant in the laundry room, where she told him that Zoppi had
killed herself. Defendant handed him a suicide note,
purportedly written by Zoppi. Christopher looked into Zoppi's
bedroom from a window and saw her body lying on the floor. He
A-0774-13T1
18
asked defendant whether she had called 9-1-1, to which she
replied "[n]o." He immediately called 9-1-1.
At 9:20 a.m., Officer Christopher Nicholas of the FPD,
responded to the scene. He saw the victim lying face down on
the floor in a pool of blood, partially covered with a blanket,
with a necktie around her neck. He felt no pulse and notified
the sergeant that he believed the scene was "suspicious" due to
"the necktie around her neck and the large amount of blood
coming from her facial area."
Nicholas briefly questioned defendant at home about her
mother's previous whereabouts. According to Nicholas, defendant
said she spoke with Zoppi at around 10:30 a.m. on July 22 before
leaving for work. During that conversation, Zoppi told
defendant that she was going out with Joseph for the day. Zoppi
also told defendant, "[y]ou don't need me." That night,
defendant went to check on her mother after the wake, but it was
dark in her mother's dwelling and her door was locked, and
defendant assumed she was sleeping. The next morning, defendant
called Zoppi's landline phone, but received no answer.
Defendant grew increasingly concerned, so she looked through a
window and saw her mother on the floor. Defendant proceeded to
crawl through the window and covered Zoppi with a blanket
because she "looked cold."
A-0774-13T1
19
Later that day, Christopher, defendant, and Joseph gave
statements at FPD headquarters. While there, Christopher gave
Zoppi's alleged suicide note to Prachar. During Joseph's
statement, he was shown the note. He thought it "unfathomable"
that his mother committed suicide because she "was extremely
religious." When asked whether the handwriting matched Zoppi's,
Joseph said, "[o]h, maybe, she scribbled stuff." At trial,
Joseph doubted that his mother had authored the note.
Also on July 23, defendant gave two videotaped statements
to Prachar and Zampino, beginning at 12:41 p.m. and 1:42 p.m.
These statements were played for the jury. During the first
videotaped statement, defendant recalled no animosity or
hostility between herself and Zoppi, except that Zoppi was
"annoyed" that, at the last minute, defendant changed the day to
visit Zoppi's mother. While getting ready to leave for the
visit on July 21, Zoppi said, "oh, don't worry. I won't ask you
again" and "[Y]ou don't even need me." Defendant said she last
saw her mother alive on July 22, 2009, at 10:20 a.m.
At lunchtime that day, she went home, but did not see
Zoppi. Defendant presumed that Joseph had taken Zoppi out for
the day, as Zoppi had communicated that plan to defendant before
she left for work. She confirmed that her family went to a wake
that evening and that she believed Zoppi was still with Joseph
A-0774-13T1
20
because her door was locked.
Consistent with her initial statement to Nicholas,
defendant said she knocked on Zoppi's door the next morning and
called her mother's phone, but no one answered. After taking
the children to summer camp, defendant looked into Zoppi's
window, saw "liquid," and climbed through the window.
Defendant told the detectives that she found her mother on
the ground and "thought she maybe fell off the couch" and "hit
her head." She placed a blanket on her because she was cold to
the touch. Defendant then called her husband. Before he
arrived, defendant claimed to find a note on Zoppi's couch. She
met Christopher and gave him the note. He called 9-1-1.
In her second videotaped statement, defendant recalled
seeing a necktie, which belonged to Christopher, around Zoppi's
neck when defendant initially found her mother. While defendant
tried to loosen the tie, she began crying. Defendant moved
Zoppi's body because she thought she could help her, but then
realized that she was cold to the touch.
Defendant additionally recalled that her electricity had
been shut off for a few days for non-payment; the bill had been
paid sometime during the week of Zoppi's death. She also
mentioned that Zoppi had recently paid for a new water heater.
At the end of the second statement, defendant asked, "can I
A-0774-13T1
21
go home?" Prachar informed her that she could, after he talked
to Christopher.
Christopher testified that after he and defendant gave
statements, they went to the home of his sister, Lisa Pravata,
and slept there that night. At 5:30 a.m. on July 24, defendant
told Christopher that she was going to walk about a mile-and-a
half to a local convenience store, but she never returned.
Christopher filed a missing person's report. The jury was shown
video surveillance footage of defendant at the Bloomfield
Library and at an Atlantic City casino taken during the time she
was reported as missing.
Before 5:00 a.m. on July 27, a neighbor saw defendant
walking near her home. An officer transported defendant to
police headquarters.
Regarding what occurred at police headquarters and the
prosecutor's office, Cammarata and Prachar testified
substantially as they had at the Miranda hearing. The jury also
viewed the video recording of defendant's July 27, 2009,
confession. Concerning what Prachar found in defendant's purse
upon her arrest, he described the contents of the "goodbye"
notes defendant wrote to Christopher, their children,
Christopher's sister and her husband, George Pravata, and
Joseph. In defendant's note to Joseph, she wrote, "I'll watch
A-0774-13T1
22
over you. Please give Chris my share of mom's money[.]"
No fingerprint evidence linked defendant to the crime, and
no DNA evidence was recovered from the victim.
On July 24, 2009, Dr. Eddy Lilavois, an expert in forensic
pathology, performed the autopsy, and at trial he opined the
cause of death was strangulation. He estimated that Zoppi died
sometime between noon on July 22, and the time at which she was
found by defendant on July 23.
Latimer was called as a defense expert witness. He
testified substantially as he had at the Miranda hearing about
his interviews of defendant, adding that his diagnosis after the
second interview was "bipolar I disorder, with psychosis."
Latimer additionally acknowledged several of defendant's jail
records, which documented her mental state between July and
November 2009. In particular, the jail record dated July 30,
2009 noted, "[p]atient remains very disconnected and disjointed
of thought[.] [N]ot clearly psychotic, but her reality testing
and judgment into her situation is none."
On cross-examination, Latimer testified about a June 7,
2010 competency report on defendant, which was prepared by Dr.
Peter D. Paul, a licensed psychologist at the Ann Klein Forensic
Center. Latimer had reviewed Paul's report as part of his
evaluation of defendant, and acknowledged Paul's finding: "When
A-0774-13T1
23
discussing [defendant's] legal case, she said she and her
attorney were planning on using the McNaughton (insanity)
defense. Overall she did not display any deficits in her
cognitive functioning."
In rebuttal, the State called Eshkenazi who testified
substantially as he had at the Miranda hearing. While
explaining his belief that defendant exhibited no symptoms of
psychosis, Eshkenazi stated, "[u]sually psychosis starts at [a]
much earlier age than the age of 40."
While defendant was in jail, Christopher5 received a
handwritten letter from her. The letter discussed defensive
strategy, and mentioned a number of mutual acquaintances, not
relevant on appeal:
Chris, whenever you can come, again I put Lisa on the list so you don't have to come by yourself. Chris, Greg's sister is pychiatric [sic] nurse he's going to ask her. And if you ask your psychrtist [sic] & research even a soft covered book. I gave Greg questions also.
I took some pills & wrote good bye letters because when I realized what I did, I wanted to kill myself. Everything else is a blurr [sic]. I don't know what's true. Vinnie just wants to know what state of mind I was in worried about bills, felt bad lieing [sic] to you it was a lot of pressure & I snapped, god forbid it was one of the kids.
Greg said it was like an outer body
5 In August 2011, Christopher divorced defendant.
A-0774-13T1
24
experience yes. But is that temporary, temp insanity, diminished capacity, pychlogy [sic] can that happen? That's what did happen.
But if there's a better reasoning, tell me. I flipped & didn't realize I did it. Believed my lie. Can that happen? What state of mind is emotional stress, no sleep the night before? Did it, panicked, then covered it up.
Don't tell the doctor why figure out something. Phil from Hollywood was asking for me how did he know I know Greg?
I confess everything to police. When I was riding the buses, my mother was with me. I hadn't eaten I heard voices Vicky, when I got here I heard voices & didn't remember.
Please help. Love T.T. Over.
Printed on the reverse side of the letter was an excerpt of
our decision in State v. Serrano, 213 N.J. Super. 419, 423-24
(App. Div. 1986), certif. denied, 107 N.J. 102 (1987), which
discussed the admissibility of evidence of diminished capacity.
At the bottom of the page, defendant wrote, "how do they
evaluate you on a pyslogical [sic] exam give to Greg for
Sunday."
On appeal, defendant presents the following issues for our
consideration:
POINT I
THE TRIAL COURT MISAPPLIED RULE 3:17 AND FAILED TO CONSIDER THE TOTALITY OF THE CIRCUMSTANCES, PARTICULARLY TINA'S MENTAL ILLNESS, IN DENYING THE SUPPRESSION MOTION.
A-0774-13T1
25
A. The Police Failed To Electronically Record The Interrogation, And The State Did Not Prove Procedural Compliance with Miranda.
B. Tina's Waiver of Her Miranda Rights Was Not Knowing And Intelligent, Taking Her Mental Illness Into Account.
POINT II
THE ADMISSION OF IRRELEVANT, YET HIGHLY PREJUDICIAL EVIDENCE THAT TINA HAD CONSIDERED AN INSANITY OR DIMINISHED CAPACITY DEFENSE DENIED HER DUE PROCESS OF LAW AND A FAIR TRIAL, PARTICULARLY BECAUSE SHE DID NOT OFFER SUCH A DEFENSE AT TRIAL.
A. The Competency Report Was Inadmissible Under The Fifth, Sixth, and Fourteenth Amendments, and New Jersey Law.
B. Dr. Paul's Hearsay Statement, Tina's Letter, and The Jail Record Indicating That Tina Believed She Could "Beat Her Case With The Insanity Plea" Were Inadmissible Under N.J.R.E. 403.
POINT III
REVERSAL IS REQUIRED BECAUSE THE PROSECUTOR REPEATEDLY ARGUED THAT TINA'S CONSIDERATION OF AN INSANITY DEFENSE YEARS AFTER HER MOTHER'S DEATH SHOWED THAT SHE KILLED HER AND WAS MANIPULATIVE AND MALINGERING; REPEATEDLY EXPRESSED MOCKING DISBELIEF OF PHSYCHIATRIC TESTIMONY REGARDING TINA'S MENTAL STATE AT THE TIME OF THE "CONFESSION"; AND DISTORTED KEY EVIDENCE. (Not Raised Below).
POINT IV
THE ERRORS CUMULATIVELY DENIED TINA A FAIR TRIAL.
A-0774-13T1
26
In her pro se supplemental brief, defendant presents the
following issues for our consideration:
POINT I
TRIAL COURT ERRONEOUSLY DENIED TINA'S MOTION TO SUPPRESS HER CONFESSION BY MISAPPLYING RULE 3:17, AND BY DECLINING TO CONSIDER THE TOTALITY OF THE CIRCUMSTANCES, IN PARTICULAR TINA [sic] MENTAL ILLNESS, IN DETERMINING IT VOLUNTARINESS.
POINT II
THE ADMISSION OF IRRELEVANT, YET HIGHLY PREJUDICIAL EVIDENCE THAT TINA HAS CONSIDERED AN INSANITY OR DIMINISHED CAPACITY DEFENSE DENIED HER DUE PROCESS OR [sic] LAW AND A FAIR TRIAL, PARTICULARLY BECAUSE SHE DID NOT OFFER SUCH A DEFENSE AT TRIAL.
POINT III
IF THIS COURT FINDS THAT THE RECORD DOES NOT PROVIDE AN ADEQUATE BASIS FOR THIS CLAIM ON DIRECT APPEAL. [sic] DEFENDANT RESPECTFULLY RESERVES THE RIGHT TO RAISE THIS ISSUE IN A SUBSEQUENT PETITION FOR POST-CONVICTION RELIEF.
II.
We turn to defendant's contention that the trial court
erred by denying her motion to suppress her statements to the
investigators. When reviewing the admission of defendant's
custodial interrogation, we "must defer to the factual findings
of the trial court so long as those findings are supported by
sufficient evidence in the record" where, as here, that court
has made its findings based on the testimonial and documentary
A-0774-13T1
27
evidence presented at an evidentiary hearing. State v. Hubbard,
222 N.J. 249, 262 (2015). Additionally, "[a]ppellate courts
should defer to trial courts' credibility findings that are
often influenced by matters such as observations of the
character and demeanor of witnesses and common human experience
that are not transmitted by the record." State v. Locurto, 157
N.J. 463, 474 (1999). Our review of the motion judge's legal
conclusions, however, is de novo. State v. Vargas, 213 N.J.
301, 327 (2013); State v. Gandhi, 201 N.J. 161, 176 (2010).
"[A] confession or incriminating statement obtained during
a custodial interrogation may not be admitted in evidence unless
a defendant has been advised of his or her constitutional
rights." Hubbard, supra, 222 N.J. at 265. Those rights,
however, may be waived so long as the waiver is "voluntary,
knowing and intelligent." State v. Hreha, 217 N.J. 368, 382
(2014).
To determine whether a statement was made voluntarily, a
court must assess the totality of the circumstances surrounding
the giving of the statement. State v. Roach, 146 N.J. 208, 227,
cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424
(1996). "Relevant factors include the defendant's age,
education, intelligence, advice concerning his [or her]
constitutional rights, length of detention, and the nature of
A-0774-13T1
28
the questioning — specifically, whether the questioning was
repeated and prolonged and whether it involved physical
punishment or mental exhaustion." State v. Bey, 112 N.J. 123,
135 (1988).
First, defendant contends that the motion judge's failure
to consider the lack of recordation of the Miranda warnings and
waiver constituted reversible error because it violated Rule
3:17(d), which states that "[t]he failure to electronically
record a defendant's custodial interrogation in a place of
detention shall be a factor for consideration by the trial court
in determining the admissibility of a statement." The motion
judge's written opinion belies that contention. Specifically,
in his recitation of the facts, the motion judge noted that the
Miranda warnings "process was not audio or video recorded."
Moreover, the motion judge considered, in his analysis of the
totality of the circumstances, that the statement began
recording after defendant received her Miranda warnings. Thus,
the record makes clear that the motion judge considered the lack
of recordation of the Miranda warnings and waiver as a factor in
analyzing whether defendant understood and waived her rights
knowingly, voluntarily, and intelligently.
As the motion judge properly concluded, the failure to
record a custodial interrogation alone does not automatically
A-0774-13T1
29
require suppression of a defendant's statement. See State v.
Cook, 179 N.J. 533, 559-60 (2004). Instead, it constitutes "a
factor for consideration . . . in determining the admissibility
of a statement," which factor the motion judge properly
considered here. R. 3:17(d).
Next, defendant argues that the motion judge improperly
focused on whether the police "had acted in an overtly coercive
manner, rather than on Tina's capacity to waive her rights at
the time." In support of that position, defendant cites State
v. Flower, 224 N.J. Super. 208, 214-15 (Law Div. 1987), aff'd
o.b., 224 N.J. Super. 90 (App. Div. 1988). However, the
circumstances in Flower do not exist here.
In Flower, the court suppressed the confession of a
cognitively disabled defendant, with a mental age equivalent to
a six- to twelve-year-old child, who lacked "the mental capacity
to understand an abstract right as is contained in the Miranda
warnings." Id. at 212. The defendant in this case is neither
cognitively nor incapable of abstract comprehension; she
therefore stands in a wholly different position from the
defendant in Flower.
The motion judge credited Eshkenazi's testimony that there
was no evidence to suggest defendant had ever suffered from a
mental disorder, and she had waived her Miranda rights
A-0774-13T1
30
knowingly, intelligently, and voluntarily. Further, the judge
noted the "defendant's statements were logical, relevant, and
she thoughtfully and appropriately answered the questions
asked." Defendant also argues that the motion judge erred by
crediting Eshkenazi's testimony over Latimer's testimony. A
judge's credibility determinations, however, are entitled to
deference. Locurto, supra, 157 N.J. at 474. Moreover, the
record amply supports the motion judge's findings.
Defendant additionally argues that the police employed
improper interrogation techniques, which rendered her statement
involuntary. Those circumstances, she claims, "could be
sufficiently coercive to render her statement involuntary" given
that she was "suffering from mental illness." The record does
not indicate that the police employed coercive or improper
tactics. Defendant has not adduced credible evidence of
specific police conduct rendering her statement involuntary.
Next, defendant contends in her pro se supplemental brief
that she never acknowledged nor understood her Miranda warnings
because she did not verbally indicate or physically
gesture that she understood them. However, her contention is
belied by the fact that she signed the Miranda waiver form after
it was read to her in its entirety.
A-0774-13T1
31
III.
We next consider defendant's contention that the judge
erred in admitting her pre-trial consideration of an "insanity
defense." During direct examination, Latimer stated that he had
reviewed many materials in preparation of his report on
defendant, including Paul's June 7, 2010, competency report.
Latimer explained that Paul was a psychologist at the Ann Klein
Forensic Center, "which is . . . a state institution where
people who have mental problems are referred for further
evaluation and disposition."
Although N.J.R.E. 703 permits a hearsay statement, such as
a medical report by a non-testifying expert, to be referred to
by a testifying expert for the purpose of apprising the jury of
the basis for his opinion, it does not allow expert testimony to
serve as "a vehicle for the 'wholesale [introduction] of
otherwise inadmissible evidence.'" State v. Vandeweaghe, 351
N.J. Super. 467, 480-81 (App. Div. 2002) (alteration in
original) (citation omitted), aff'd, 177 N.J. 229 (2003). The
rule must be "anchored to the reason for its existence," Krohn
v. N.J. Full Ins. Underwriters Ass'n, 316 N.J. Super. 477, 486
(App. Div. 1998), certif. denied, 158 N.J. 74 (1999), and
interpreted accordingly. When the purpose of the rule is taken
into consideration, the only fair interpretation is that it was
A-0774-13T1
32
not intended as a conduit through which the jury may be provided
the results of contested out-of-court expert reports.
On cross-examination, the prosecutor showed Paul's report
to Latimer and asked if he had relied on Paul's conclusion that
defendant was competent to stand trial. In response, Latimer
stated, "[n]o. I never relied on Dr. Paul." Just as the
prosecutor was about to read a portion of the report to have
Latimer verify it, defense counsel objected, stating that Paul
had told defendant that the report "was for competency only and
that nothing she said to him could be used in a court
proceeding." The prosecutor argued that defense counsel had
"used" the report in his case-in-chief when Latimer "defined
what Ann Klein was, even defined who Dr. Peter Paul was, where
he was employed, what it was all about." The judge permitted
the cross-examination, essentially agreeing with the prosecutor
that defense counsel had "opened the door" to the evidence on
Latimer's direct examination.
On cross-examination, Latimer acknowledged that Paul's
report stated, "[w]hen discussing [defendant's] legal case, she
said she and her attorney were planning on using the McNaughton
(insanity) defense. Overall she did not display any deficits in
her cognitive functioning."
"The doctrine of opening the door allows a party to elicit
A-0774-13T1
33
otherwise inadmissible evidence when the opposing party has made
unfair prejudicial use of related evidence." State v. James,
144 N.J. 538, 554 (1996). The doctrine "operates to prevent a
defendant from successfully excluding from the prosecution's
case-in-chief inadmissible evidence and then selectively
introducing pieces of this evidence for the defendant's own
advantage, without allowing the prosecution to place the
evidence in its proper context." Ibid. Evidence is still
subject to exclusion, however, where a court finds that the
probative value of the otherwise inadmissible responsive
evidence is substantially outweighed by the risk of undue
prejudice, confusion of issues, or misleading the jury. Ibid.
A judge's discretionary rulings on the admissibility of
evidence should not be disturbed absent a mistaken exercise of
discretion. State v. Fortin, 189 N.J. 579, 597 (2007). Error
in the admission of evidence is not harmful if the defendant's
fundamental rights were not impaired and the cumulative evidence
against the defendant enjoys great weight. State v. Soto, 340
N.J. Super. 47, 65 (App. Div.), certif. denied, 170 N.J. 209
(2001).
We are satisfied that the court acted within its
discretion. In any event, even if in error, the error was
harmless, Rule 2:10-2, because there was no reasonable
A-0774-13T1
34
possibility that the evidence concerning defendant's
consideration of an insanity defense "might have contributed to
the conviction." State v. Macon, 57 N.J. 325, 338-39 (1971).
The testimony about Paul's report was a small portion of
Latimer's cross-examination and the prosecutor did not refer to
the report in her summation. Cf. State v. Spencer, 319 N.J.
Super. 284, 299 (App. Div. 1999) (reversible error where
prosecutor elicited inadmissible hearsay testimony from an
expert witness, who did not testify and was not subjected to
cross-examination, and improperly used that testimony in his
summation). In addition, there was significant, admissible
incriminating evidence that led the jury to convict defendant,
including her credible videotaped confession, her use of Zoppi's
credit cards after Zoppi's death to satisfy defendant's
outstanding debts, and her flight after the crime.
IV.
Defendant argues that Latimer's testimony about Paul's
report, her letter to Christopher, and an August 17, 2010, jail
record, all of which concerned her pre-trial consideration of an
insanity or diminished capacity defense, was inadmissible under
N.J.R.E. 403. She further contends that the trial judge's
improper admission of the evidence constituted reversible error.
We disagree.
A-0774-13T1
35
Christopher stated on direct examination that defendant
sent him a letter from jail. Defense counsel objected to
admission of the letter, stating that it was not properly
authenticated and that he was unaware of when it was written
and, thus, the condition of defendant's mental state at that
time and whether she had received advice from private counsel.
Defense counsel also expressed concern about the reverse side of
the letter with typewritten legal information about the insanity
defense, stating that the information "could have been typed by
anybody." The judge overruled the objection, stating that
Christopher had authenticated the letter and that defense
counsel's concerns could be addressed on cross-examination.
Christopher then read the contents of the letter into the
record.
Defendant did not argue below that the letter was
inadmissible under N.J.R.E. 403, nor did she assert that her
statements in the letter concerning her post-crime, pre-trial
consideration of an insanity defense unduly prejudiced her right
to a fair trial. Moreover, she did not argue that N.J.R.E. 403
should have precluded Christopher's testimony about Paul's
report. N.J.R.E. 403 provides that "relevant evidence may be
excluded if its probative value is substantially outweighed by
the risk of . . . undue prejudice[.]" N.J.R.E. 401 defines
A-0774-13T1
36
relevance as "having a tendency in reason to prove or disprove
any fact of consequence to the determination of the action."
Here, the letter was clearly probative. Her statements
regarding her post-crime thoughts of committing suicide and
feeling remorseful for what she had done demonstrated
consciousness of guilt. See State v. Mann, 132 N.J. 410, 421
(1993) ("[A]ttempted suicide has been regarded as evidence of a
consciousness of guilt."); State v. Pindale, 249 N.J. Super.
266, 283 (App. Div. 1991) ("Unusual exhibitions of remorse for
the victims of a crime may in some circumstances be probative of
a party's guilty conscience."). Also in the letter, defendant
said she had confessed everything to the police, which suggested
she had not given a false confession. The letter included
defendant's internal debate about whether she experienced
temporary insanity or diminished capacity at the time she killed
her mother, which was also probative to the central issue in the
case of whether she actually had committed the murder. We,
therefore, conclude the admission of the letter was not in
error.
Defendant further challenges the judge's allowance of
Latimer's cross-examination testimony about the August 17, 2010,
jail record, which stated, "It seems the inmate believes she can
beat her case with an insanity plea despite her mental stability
A-0774-13T1
37
at this time." Defense counsel objected to admission of the
record, arguing that its reference to plea negotiations unduly
prejudiced defendant. The judge overruled the objection,
stating that the record was not "overly prejudicial in light of
the direct examination" on defendant's other jail records. On
cross-examination, Latimer verified the contents of the August
17, 2010, record.
The jail record was probative of defendant's state of mind,
as it suggested she had committed the crime. Even so, as with
the other evidentiary references to defendant's pre-trial
consideration of a mental illness defense, the testimony on the
jail record did not have the capacity to lead the jury "to a
result it otherwise might not have reached." Macon, supra, 57
N.J. at 336.
V.
Defendant contends that several comments in the
prosecutor's summation constituted prosecutorial misconduct
depriving her of a fair trial. As long as the comments are
reasonably related to the scope of the evidence, prosecutors are
expected to make a vigorous and forceful closing argument to the
jury. State v. Frost, 158 N.J. 76, 82 (1999). We must consider
a prosecutor's summation as a whole and not simply focus on
isolated remarks. State v. Atwater, 400 N.J. Super. 319, 335
A-0774-13T1
38
(App. Div. 2008).
Where, as here, no objections were made to the comments of
the prosecutor, they will generally not be deemed prejudicial.
Frost, supra, 158 N.J. at 83. That is because, "[t]he failure
to object suggests that defense counsel did not believe the
remarks were prejudicial at the time they were made. The
failure to object also deprives the court of an opportunity to
take curative action." Id. at 84. The question is whether the
statements in the prosecutor's summation constituted
prosecutorial misconduct that was so egregious it deprived
defendant of a fair trial. Id. at 83.
Defendant argues that comments in the prosecutor's
summation improperly suggested her personal belief that
defendant's "conduct was a studied performance," falsely aimed
to convince the authorities and family members that Zoppi had
committed suicide.
The comments were permissible because the proofs at trial,
including defendant's post-arrest letter to her husband and her
confession, reasonably suggested that she sought to exculpate
herself by staging her mother's alleged suicide. See State v.
Nelson, 173 N.J. 417, 472 (2002) ("Although generally limited to
commenting on the evidence and drawing reasonable inferences
from the proofs presented, prosecutors are permitted
A-0774-13T1
39
considerable leeway to make forceful, vigorous arguments in
summation.").
In addition, defendant contends the prosecutor's comments
that defendant's post-arrest letter to her husband demonstrated
her efforts "to beat her case with [the] insanity defense"
constituted an impermissible expression of the prosecutor's
personal belief in her guilt, "perhaps through extra-record
information." The prosecutor's comments were reasonable
inferences from the evidence, specifically defendant's
statements in her letter to her husband. Defendant further
asserts that the prosecutor's comments about the letter
"insinuated that preparing for trial evinced guilt," which
impermissibly infringed on her constitutional right to prepare a
defense. This argument is without sufficient merit to warrant
discussion. Rule 2:11-3(e)(2).
Defendant also argues that the prosecutor's comments about
the letter unfairly denigrated defense counsel and Latimer by
suggesting that she conspired with them to "conceal and distort
the truth." "It is well settled that prosecutors are not
permitted to cast unjustified aspersions on the defense or
defense counsel." State v. Rodriguez, 365 N.J. Super. 38, 50
(App. Div. 2003), certif. denied, 180 N.J. 150 (2004). Despite
the questionable character of the prosecutor's comment, the
A-0774-13T1
40
absence of an objection suggests that defense counsel did not
consider it prejudicial in the context of trial. Frost, supra,
158 N.J. at 83. Furthermore, even if we did view the comment as
improper, we would not find it to be sufficiently egregious to
warrant reversal.
Also with respect to her post-arrest letter to her husband,
defendant argues the prosecutor intentionally misstated a
portion of it. The minor, fleeting misstatement did not deprive
defendant of a fair trial because the letter was admitted into
evidence, and the judge instructed the jurors at the start of
trial and in the final charge that it was their recollection of
the evidence that controlled.
Defendant argues that the prosecutor also improperly
suggested that evidence of her financial circumstances at the
time of her mother's death demonstrated her propensity for
deception. Before trial, the motion judge ruled that such
evidence was admissible as N.J.R.E. 404(b) motive evidence. At
summation, the prosecutor stated:
[Defendant] confessed to killing her mother. And, at the very end [of her July 27, 2009 statement], she was asked about an affair. It's become clear that this woman was having an affair. The only thing that comes into play with an affair is it shows what a train wreck she was leading up to this murder.
Because it was part of her deception. It was part of her deception. She's deceiving
A-0774-13T1
41
family, she's deceiving her husband, she's deceiving the creditors, she's deceiving the mortgage company, she's certainly deceiving PSE&G, because she asked her neighbor to rig the PSE&G back on.
[(emphasis added).]
During the final charge, the judge delivered the Model
N.J.R.E. 404(b) jury instruction,6 stating in pertinent part:
Now, Ladies and Gentlemen, the State . . . has introduced evidence that the defendant had serious financial problems, and produced certain phone records, credit card records, banking records, PSE&G records, the Twiddy real estate agency records, [the law firm's] records, audiotapes, the testimony regarding the inheritance of Christopher Lunney from his father.
. . .
However, you may not use this evidence to decide that the defendant has a tendency to commit crimes or that she is a bad person. That is, you may not decide that, just because the defendant has committed other crimes, wrongs, or acts, she must be guilty of the present crime. I have admitted the evidence only to help you decide the specific question as presented by the State for that purpose.
You may not consider it for any other purpose and may not find the defendant guilty simply because the State has offered evidence that she committed other crimes, wrongs, or acts.
Even if improper, the prosecutor's comment was isolated and
6 Model Jury Charge (Criminal), "Proof of Other Crimes, Wrongs or Acts" (June 4, 2007).
A-0774-13T1
42
fleeting. The trial judge delivered a proper limiting
instruction during the final charge. The comment made by the
prosecutor was not sufficiently prejudicial to warrant reversal.
See State v. Engel, 249 N.J. Super. 336, 382 (App. Div.)
(prosecutor's "errant remark" did not constitute misconduct when
"viewed in the context of a protracted trial" and where trial
judge charged the jury "that statements made by the attorneys
were not to be considered as evidence[, which] obviated any
lingering potential for undue prejudice"), certif. denied, 130
N.J. 393 (1991).
For the first time in her pro se supplemental brief,
defendant argues that Prachar "perjured" himself during trial,
which resulted in "all the case records becom[ing] questionable
and tainted." Defense counsel vigorously cross-examined
Prachar. During summation, counsel questioned Prachar's
credibility several times on various topics. It was for the
jury to determine whether Prachar testified credibly. See,
e.g., State v. J.Q., 252 N.J. Super. 11, 39 (App. Div. 1991)
("[C]redibility is an issue which is peculiarly within the
jury's ken and with respect to which ordinarily jurors require
no expert assistance."), aff'd, 130 N.J. 554 (1993). To the
extent defendant argues that her counsel was ineffective for not
sufficiently emphasizing the alleged inconsistencies in
A-0774-13T1
43
Prachar's testimony, such argument should be raised in a
petition for post-conviction relief, not on direct appeal. See
State v. Preciose, 129 N.J. 451, 460 (1992) ("Our courts have
expressed a general policy against entertaining ineffective
assistance-of-counsel claims on direct appeal because such
claims involve allegations and evidence that lie outside the
trial record.").

Outcome: We find defendant's remaining contentions in her counseled
and pro se briefs to be without sufficient merit to warrant
discussion in this opinion.

Plaintiff's Experts:

Defendant's Experts:

Comments: