STATE OF NEW JERSEY VS. TINA LUNNEY

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)

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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

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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

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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.

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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

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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."

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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

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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,

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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

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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

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[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.

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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.

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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."

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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

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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."

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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

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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

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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

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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

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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.

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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.

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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.

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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

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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

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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

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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

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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.

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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

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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

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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

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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.

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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

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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

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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

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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

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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

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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

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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).

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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

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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.").

We find defendant's remaining contentions in her counseled

and pro se briefs to be without sufficient merit to warrant

discussion in this opinion.