Melanie McGuire (born Melanie Lyn Slate on
October 8, 1972) is a New Jersey woman best known for being the
perpetrator in the media-dubbed "suitcase murder." She was convicted
of murdering her husband in April 2004 and was sentenced to life in
prison on July 19, 2007. Melanie is serving her sentence at the Edna
Mahan Correctional Facility for Women in Clinton, New Jersey. Barring
a successful appeal, she will not be eligible for parole until she is
100 years old.
In April 2004, Melanie McGuire and her husband Bill
had been married for five years. She was a nurse at a fertility clinic
and he was a computer programmer. The two were raising two sons in a
Woodbridge, New Jersey apartment. That month however, the couple
planned to move to a larger home in Warren County. Melanie and Bill
closed on their new house on April 28, 2004, but never moved in. That
night, Melanie drugged her husband, shot him twice to death, and then
dismembered his body. Melanie later put his dismembered remains into
three matching suitcases, which were later found in the Chesapeake
The day after Bill's murder, Melanie started
covering her tracks. She began establishing an alibi, claiming after a
domestic argument, her husband slapped her with an open hand in their
bathroom, stuffed a dryer sheet in her mouth, and stormed off. On
April 30, 2004, Bill's 2002 Nissan Maxima was found outside the
Flamingo Hotel in Atlantic City, New Jersey. Five days later, the
first suitcase containing Bill's remains was found near the Chesapeake
Bay Bridge Tunnel. A murder investigation was launched.
On May 11, 2004, a second suitcase with Bill's
remains is found, containing his head and torso. A third suitcase is
recovered on May 16. Virginia Beach police released a composite sketch
of the victim, which an acquaintance of Bill McGuire's recognized as
being him. Melanie McGuire became the prime suspect in the
investigation. Because the murder did not occur in Virginia, however,
authorities turned over their investigation to New Jersey State
During the investigation, much incriminating
evidence was uncovered against Melanie. The police discovered a video
of Melanie parking Bill's car at the Flamingo Hotel. Melanie claimed
she had done this as a "prank" even through she had applied for a
protection from abuse order days earlier based on the alleged
On April 26, 2004, she purchased a .38 caliber
handgun from a store in Easton, Pennsylvania with unusual wadcutter
bullets. Bill was killed with a .38 caliber handgun with wadcutter
bullets. In addition, police also learned that Melanie had been having
a long-term affair with a co-worker named Bradley Miller at the
fertility clinic. Melanie's EZ Pass tag was recorded at a toll in
Delaware two days after Bill's murder. Melanie claimed that this was
the result of her going furniture shopping in Delaware since it has no
Before she was charged with murder, Melanie called
EZ Pass and attempted to have the .85 charge removed from her account
history. Days later, an unidentified man, believed by many to be
Melanie's father, also called and attempted to have the charge
removed. The plastic bags that Bills' body were found in were
demonstrated by forensics to be from the same roll of bags that
Melanie had in her home. The luggage that Bill's body was found in
matched a set that Melanie had in her basement, which was missing the
same size bags as the ones Bill's body was found in. Police believed
that Melanie used a prescription from her work to drug her husband.
Charges / Trial
On June 2, 2005, more than a year after the murder,
Melanie McGuire was arrested at her new home in Brick, New Jersey and
was charged with first-degree murder. Melanie was immediately booked
into the Middlesex County Adult Correctional Center, but made her
$750,000 bail. Through her attorneys, Joe Tacopina, Steve Turano, and
Marc Ward, she pled not guilty to the charges.
After being released on bail, Melanie faced
additional charges on October 11, 2005. A four-count indictment came
down from a state grand jury. Melanie's bail was raised to $2.1
million, but was again released. More than a year later, on October
26, 2006 Melanie was charged with two counts of hindering apprehension
for allegedly writing letters to police aimed to get them off her
trail. She again pleads not guilty and is released after posting
Almost three years after the crime, Melanie
McGuire's murder trial commenced at the Middlesex County Courthouse in
New Brunswick, New Jersey on March 5, 2007. Prosecutors contended her
motive for murder was to take up a new life with her lover, Bradley
Miller. Melanie still persisted she was innocent however, and claimed
her husband was a compulsive gambler who owed money, and believed her
husband was killed by the Atlantic City mob.
On April 23, 2007, Melanie McGuire's murder trial
jury found her guilty of first-degree murder. She was also convicted
of the lesser charges of perjury, desecration of human remains, and
possession of a weapon for an unlawful purpose. However, Melanie was
acquitted of the two counts of hindering apprehension, as well as
tampering with evidence and possession of Xanax without prescription.
On July 19, 2007, the 34-year-old mother of two was
sentenced to life in prison. In New Jersey, a life sentence is defined
as a 75-year term, and under New Jersey's No Early Release Act, she
must serve 85 percent of her sentence, or 63 3/4 years. In addition,
the judge sentenced her to additional consecutive 2 1/2 year-term for
Following her arraignment on murder charges,
Melanie's case was dubbed as "the Suitcase murder" by various media
Author John Glatt wrote a book about the case,
entitled "To Have and To Kill".
Melanie's case has been profiled on Snapped,
Dateline NBC, Investigation Discovery's Deadly Affairs, and
TruTV's The Investigators among other true crime shows.
Her conviction was affirmed by an appeals court on
March 16, 2011. On September 20, 2011, the New Jersey Supreme Court
declined to even hear her further appeal.
Nurse who killed, dismembered husband sentenced
to life in prison
July 24, 2007
NEW BRUNSWICK, N.J. — A New Jersey judge rejected
claims of innocence from a nurse who was convicted of killing and
dismembering her husband and sentenced her to life Thursday for his
"The depravity of this murder simply shocks the
conscience of this court," Middlesex Superior Court Judge Frederick De
Vesa said as he gave Melanie McGuire the maximum penalty. "One who
callously destroys a family to accomplish her own selfish ends must
face the most severe consequences that the law can provide."
McGuire was visibly distraught as she listened to
the judge. Her lawyers had asked for the minimum sentence of 30 years
for the murder count.
A jury convicted McGuire in April of four counts,
including first-degree murder, stemming from the death of William
McGuire, a 39-year-old computer analyst who was last seen alive April
Three weeks after he disappeared, three suitcases
containing his dismembered remains washed up on the shores of the
McGuire also received 10 years for desecrating
human remains, to be served concurrently, and an additional five years
on one count of perjury for lying to a family court judge regarding
the whereabouts of her husband after his disappearance.
In an agreement among the lawyers, De Vesa merged
one count of unlawful possession of a weapon with the murder count.
McGuire will be eligible for parole after serving
85 percent of her sentence, or when she is 100 years old, according to
calculations from the state attorney's office.
De Vesa said he gave great weight to the cruel and
heinous nature of the crime in determining the sentence, which he
delivered after hearing statements from William McGuire's family.
Clutching a tissue behind her back, Laura Ligosh
told the judge that her memory of her uncle was marred by the image of
his bloated limbs after they were pulled from the Chesapeake Bay.
"She has stolen our smiles, our laughter, our joy,"
a tearful Ligosh said through sobs. "She has also taken something
deeper from all of us — our innocence, our faith in humanity."
During McGuire's seven-week trial earlier this
year, prosecutors alleged that the defendant killed her husband so she
could start a new life with her boss without enduring a messy divorce.
In the absence of forensic evidence linking McGuire
to her husband's body or the murder to their home, prosecutors relied
on evidence of the affair and testimony from a forensic expert who
said the garbage bags containing the victim's remains were consistent
with bags in the couple's home
McGuire declined to speak in her defense, but after
the sentencing, her lawyer, Joseph Tacopina, said she maintains her
"She didn't do this, so there was no remorse,"
Tacopina told Court TV. "There's nothing for her to apologize for.
This wasn't the day for her to explain herself."
Tacopina told the judge that he receives e-mails
daily in support of his client and submitted 40 letters attesting to
her good character as an attentive and caring nurse and friend.
But Assistant State Attorney Patricia Prezioso said
McGuire's meticulous nature was what almost enabled her to get away
with murder, and urged the judge to hand her the maximum sentence.
"This is a defendant who puts on a face and shows
the people before her whatever it is she wants to show," Prezioso
said. "I don't know who the real Melanie McGuire is."
Two members of the jury who attended the sentencing
declined to speak to the media after the hearing.
McGuire sentenced to life in prison for suitcase
By Suleman E. Din - NJ.com
July 19, 2007
Melanie McGuire, the 34-year-old fertility clinic
nurse convicted of killing her husband and stuffing his remains into
suitcases, was sentenced to life in prison this morning.
"The depravity of this murder simply shocks the
conscience of this courtroom," Superior Court Judge Frederick DeVesa
said as he issued the sentence, calling the crime especially "heinous"
"The nature and the complexity and the scope of
this criminal episode involved many, many overt actions committed over
a three-week period spanning four different states, and reflected a
willfullness and a malice that goes far beyond the elements of the
crime of murder," the judge said.
McGuire has remained in custody since her April 23
conviction, after prosecutors said she drugged, shot and dismembered
her husband, William T. McGuire, 39, in their Woodbridge townhouse on
April 28, 2004, and then stuffed his remains into three matching
suitcases before dumping them in the Chesapeake Bay.
"His sons were just babies, only 2 and 4 years old,
when the sun rose on that April morning and their daddy was nowhere to
be found," said Cindy Ligosh, William McGuire's elder sister, as she
testified before the sentencing. The boys, she said, "were denied a
chance to even say goodbye."
Laura Ligosh, William McGuire's niece, said she
could no longer remember her uncle by "his infectious grin and the
boyish mischief in his eyes."
"I see the pencil sketch rendered by the Virginia
police department of a body that was pulled out of the water on three
separate days," she said. "No name, no voice, just lifeless eyes set
in a bloated, misshapen head."
Melanie McGuire sat handcuffed, wearing a green
jail sweatshirt. She sobbed through much of this morning's hearing.
Allison LiCalsi, McGuire's best friend, spoke on
her behalf, saying she is big-hearted woman who became a nurse to help
others. During her time in jail, McGuire has helped a fellow inmate
cope with heroin withdrawal, LiCalsi said.
McGuire winced and cried, sometimes bowing, as
LiCalsi spoke. When Ligosh mentioned William and Melanie McGuire's
young sons, the defendant screamed silently - her mouth wide open, her
eyes shut tight.
Her attorney, Joseph Tacopina, said his client was
wrongly convicted. He asked the judge to sentence McGuire to 30 years
"Melanie McGuire is innocent. We respect the jury's
verdict, but we don't agree with it," he said. "She is always giving
of herself, and she has gotten people through incredibly difficult
times. Melanie McGuire continues to be that person today, even though
she's in a place where she does not belong."
Assistant Attorney General Patricia Prezioso told
the judge there is "ample reason" to give McGuire the maximum penalty.
"This defendant desecrated his body then she tried
to desecrate his memory," she said. "(Melanie McGuire) continues to
deny her part and displays a total and complete lack of remorse. She
displays an arrogance as if she is entitled to be above the law. She
should never, ever walk free again."
During the trial in Middlesex County, prosecutors
said McGuire killed her husband so she could be with her lover Bradley
Miller, a doctor at the Morristown fertility clinic where they both
By Beverley M. Reid - The Star Ledger
July 17, 2007
Melanie McGuire, 34, was found guilty yesterday of
killing her husband of nearly five years, William T. McGuire, then
cutting up his remains, placing them in three suitcases and dumping
the suitcases into the Chesapeake Bay. Key dates in the crime:
April 26, 2004: Melanie McGuire buys a .38-caliber
revolver from a gun shop in Easton, Pa. She also begins an Internet
search on her home computer, looking up such topics as "undetectable
poisons" and "how to commit a murder."
April 28, 2004: Melanie and William McGuire close
on a $450,000 mortage to buy a home in Warren County. Hours later,
William McGuire, a 39-year-old computer programmer at New Jersey
Institute of Technology, is drugged and shot, then dismem¬bered in his
April 29, 2004: Melanie McGuire says her husband
had begun arguing with her, slapped her and stuffed a dryer cloth in
her mouth, then fled in a rage when she locked herself in the
bathroom. She says she never saw him again.
April 30, 2004: William McGuire's 2002 blue Nissan
Maxima is found outside the Flamingo Hotel in Atlantic City. A
surveillance camera captures the grainy image of someone getting out
of the car and walking away.
May 5, 2004: A man fishing from his boat near the
fourth island of the Chesapeake Bay Bridge-Tunnel retrieves a suitcase
containing human remains.
May 8, 2004: William McGuire's abandoned car is
towed to a police impound yard.
May 11, 2004: A graduate student, out for a day of
bird-watching, finds a suitcase that washed ashore on Fisherman's
Island, off Virginia's Eastern Shore. A human head and torso are
recovered from the suitcase.
May 16, 2004: A boater finds a third matching
suitcase, floating in the bay near the second island of the bridge and
tunnel. More human remains are inside.
May 21, 2004: Virginia Beach, Va., police release a
composite sketch of the face of the man whose remains were recovered.
Susan Rice of Chesapeake, Va., recognizes the victim as her husband's
longtime friend and Navy buddy, William McGuire, 39. On the same day,
Melanie McGuire signs papers seeking a divorce in N.J.
May 25, 2004: Melanie McGuire files for divorce in
Sept. 15, 2004: Police in Virginia close their
investigation and turn the case over to New Jersey after concluding
William McGuire was killed in the Garden State.
March 8, 2005: New Jersey authorities obtain a
court order allowing them to secretly record hundreds of hours of
phone conver¬sations between Melanie McGuire and her family and
June 2, 2005: After dropping off her sons at a
Metuchen day care center, McGuire is arrested and charged with
murdering and dismembering her husband. A not-guilty plea is entered
on her behalf. Bail is set at $750,000. Within days, she posts the
amount and is released. Authorities say that since the summer of 2002,
she had been having an affair with Bradley Miller, a doctor at the
Morristown fertility clinic where she worked.
Oct. 11, 2005: A state grand jury hands up a
four-count indictment. Melanie McGuire's bail is raised to $2.1
million, and she is again released from custody. Authorities contend
the she had an accomplice, but no one else is charged.
Oct. 26, 2006: A second indict¬ment is handed up,
accusing Melanie McGuire of writing a series of letters aimed at
getting police off her trail during the homicide investigation. The
letters suggest she was being framed.
Oct. 31, 2006: The second indict¬ment is unsealed
after Melanie McGuire appears in court and is advised of the new
charges. Another not-guilty plea is entered. She is released after
posting an additional $10,000 bail.
Nov. 18, 2006: Melanie McGuire hires a new defense
team, Joseph Tacopina and Stephen Turano. "I wouldn't have come into
this case unless I was 100 percent convinced of her innocence,"
March 5, 2007: Melanie McGuire's trial begins at
the Middlesex County Courthouse in New Brunswick.
April 23, 2007: Melanie McGuire is found guilty of
Wife arrested in gory dismemberment murder
By Colleen Lutolf and Jennifer Dome - GMNews.com
June 7, 2005
Police arrested the wife of a murdered Woodbridge
man over a year after his body parts was discovered floating in three
separate suitcases on Virginia’s Chesapeake Bay, the N.J. Attorney
General’s Office said.
State police arrested Melanie McGuire, 32, of
Brick, and charged with the first-degree murder of her husband,
William T. McGuire, 39, a Woodbridge resident at the time of his
Authorities believe the murder took place on or
about April 29, 2004, in the couple’s Woodbridge Center Plaza
apartment, located across the street from Woodbridge Center mall.
“It’s part of the ongoing investigation, but it’s
where we believe it took place,” said Paul Loriquet, a spokesman for
the Attorney General’s Office.
McGuire had just dropped off their two young boys,
ages 3 and 5, at two Metuchen day care centers, Kinder Kastle
Childcare Learning Center on Middlesex Avenue and ABZ Academy on
Hillside Avenue, when police stopped and arrested her at approximately
9:30 a.m. June 2 near Route 27 on Factory Street, authorities said.
McGuire was taken to the state police station in
Somerville to be processed. She appeared before state Superior Court
Judge Deborah J. Venezia, Middlesex County, at 3:30 p.m. later that
day. Venezia set McGuire’s bail at $750,000, the amount sought by the
state Division of Criminal Justice, Loriquet said.
As of June 6, McGuire was still being held at the
Middlesex County Adult Correction Center due to an administrative
issue, Loriquet said.
“She still remains in custody,” he said. “Bail
conditions dictate she cannot depart the state of New Jersey and she
must surrender her passport. That’s what’s holding this up at this
point — if she actually has a passport. But as of this hour she is
still in custody.”
The ongoing investigation may yield additional
arrests and charges, Loriquet said.
“We believe others were involved,” he said.
Loriquet said investigators believe Melanie
McGuire, a nurse at Reproductive Medical Associates (RMA) of New
Jersey in Morristown, was having an extramarital affair.
Bill Berry, an RMA spokesman, would confirm only
that McGuire was an employee of the Morristown medical office.
“We will continue to support ongoing efforts to
gather information related to this situation,” Berry said. “Because
this [is] a continuing investigation, we are unable to comment on any
other specific details at this time.”
McGuire’s motivation for allegedly murdering her
husband is unknown, authorities said.
Details of the grisly murder began when a local
fisherman discovered a small piece of luggage floating in the water
between the fourth island and the high-rise bridge near the Chesapeake
Bay Bridge Tunnel at 11:30 a.m. on May 5, 2004.
The man opened the suitcase and found human remains
stuffed inside black plastic garbage bags. He called Virginia law
enforcement, authorities said. Virginia Beach police homicide
investigators responded and transported the luggage and its contents
to the chief medical examiner’s Office in Norfolk, Va.
A graduate student conducting research in the area
known as Fisherman’s Island, discovered the second suitcase almost a
week later, on May 11, 2004.
A boater found a third suitcase on May 16, by the
Chesapeake Bay Bridge Tunnel.
Investigators determined the remains found in all
three suitcases belonged to one man, William McGuire, an adjunct
professor and senior programmer analyst with the Department of
Information Resource Development at the New Jersey Institute of
Technology, authorities said. He had graduated from NJIT in 2001.
The investigation was coordinated by the New Jersey
Division of Criminal Justice and the New Jersey State Police. It also
included the Middlesex County Prosecutor’s Office, the Woodbridge
Police Department, and the Virginia Beach Police Department.
Authorities believe Melanie McGuire shot her
husband on or about April 29, chopped up his body and stuffed his
remains into three suitcases, which were later deposited in the
McGuire’s Nissan Maxima was towed and impounded on
May 8, 2004, after it had sat idle for several days at the Flamingo
Motel on Pacific Avenue in Atlantic City, local authorities said last
In September 2004, Virginia authorities forwarded
the investigation to the state Attorney General’s Office.
Authorities allege on April 26, 2004, three days
before the murder, Melanie McGuire purchased a .38-caliber handgun
from John’s Gun and Tackle in Easton, Pa., Loriquet said.
“We believe the bullets were also purchased at the
same location,” he said.
The Virginia medical examiner determined McGuire
sustained at least two gunshot wounds — one to the head and a second
to the chest, authorities said.
A paint chip found on the tape used to seal one of
the trash bags containing William McGuire’s remains was determined to
be nail polish, authorities said.
Loriquet said he could not comment on whether the
nail polish belonged to Melanie McGuire or if the nail polish bottle
had been found.
A search warrant executed for Melanie McGuire’s
Brick home on Constitution Drive was issued. A second warrant was
executed for an Aqua Lane residence in Barnegat — the home of Melanie
McGuire’s mother and step-father. Both warrants were approved by N.J.
Superior Court Judge Linda R. Feinberg in Mercer County, authorities
Authorities would not comment on any evidence
gathered at McGuire’s Brick residence.
Stacey Schliecher, who sold McGuire the Brick home
on March 28, said she found nothing disquieting about McGuire when the
alleged killer and her father came to Brick to inspect her home.
“They basically were wonderful people,” she said.
“I had no idea that this all occurred.”
The two women, former neighbors who attended
Middletown High School together, “hit it off,” Schliecher said.
Tears welled in Schliecher’s eyes when Melanie told
her she had lost her husband, Schliecher said. McGuire reached for
Schliecher’s hand to comfort her.
“I remember thinking, ‘My God, what a brave woman
to raise two children on her own,’ ” she said.
She described McGuire as “really smart.”
“Hopefully, it was an act of desperation,” she said
of the alleged murder. “... I don’t think she was mentally ill or
crazy, but like I said, I didn’t know her very well. I met her in high
school and then again 15 years later.”
Melanie told Schliecher she wanted to move to Brick
because she thought her son was autistic and she had heard the Brick
school district offered programs for autistic children, Schliecher
Evidence in the case is currently before a state
grand jury, Loriquet said.
If indicted, the case will go before Superior Court
Judge Fred DeVesa in Middlesex County, Loriquet said.
A court date has not yet been set, he said.
Superior Court of New Jersey
State v. McGuire
STATE of New Jersey, Plaintiff-Respondent,
Melanie McGUIRE, Defendant-Appellant.
Argued Oct. 27, 2010. -- March 16, 2011
Before Judges FUENTES, ASHRAFI and NUGENT.
Jamie S. Kilberg (Stoel Rives LLP) of the Michigan
and District of Columbia bars, admitted pro hac vice, argued the cause
for appellant (Tacopina Seigel & Turano, P.C., and Mr. Kilberg,
attorneys; Stephen Turano, on the brief).Daniel I. Bornstein, Deputy
Attorney General, argued the cause for respondent (Paula T. Dow,
Attorney General, attorney; Mr. Bornstein, of counsel and on the
The opinion of the court was delivered by
A jury convicted defendant Melanie McGuire of
murdering her husband, desecrating his body, and two other charges.
The court sentenced her to life in prison plus five years. She must
serve at least sixty-six years in prison before she can be considered
for parole. She appeals, arguing that her trial and sentencing were
unfair. We affirm the verdict and sentence.
Defendant and William “Bill” McGuire were married
in 1999. They lived with their two boys in an apartment in Woodbridge.
Bill worked as a computer program analyst for a college in Newark.
Defendant worked as a nurse for a medical practice in Morristown. On
April 28, 2004, they closed on the purchase of the first home they
would own. They then returned to their Woodbridge apartment, and Bill
called the gas company at 5:37 p.m. to transfer their account to the
new house. At 5:44 p.m. and 5:59 p.m., he called two good friends to
tell them happily he had completed the purchase of his new house.
Later that evening, Bill did not return a call from
the seller of the house, as he had done promptly on prior occasions.
There is no evidence that Bill ever spoke to anyone again after 6:10
p.m. on April 28, 2004, other than perhaps defendant. Bill's silence
was unusual because he was normally very active on his telephones and
Blackberry, both socially and for work.
On three dates from May 5 to May 16, 2004, Bill's
body was found in the waters near the Chesapeake Bay Bridge-Tunnel in
Virginia. The body had been cut into three sections, drained of blood,
wrapped in garbage bags, and packed into three matching suitcases. The
medical examiner in Virginia found two bullets in the torso, and
separate entrance and exit bullet wounds to the head and the chest.
Also found in one of the suitcases was a blanket with markings from a
hospital supply company.
Four weeks after Bill disappeared, the police
notified defendant that her husband's body had been found and
identified. In October 2004, New Jersey authorities took over
jurisdiction of the murder investigation from Virginia. In June 2005,
defendant was arrested and charged with Bill's murder.
Investigators had gathered numerous items of
evidence, including: the reports of the medical examiners, grand jury
testimony, witness interviews, voluntary statements of defendant to
the police, statements defendant had made to friends and others,
records from a gun shop in Pennsylvania, business records such as
telephone and pharmacy records, surveillance tapes from business
locations, expert evaluations of forensic evidence gathered from the
suitcases and from Bill's car, DNA identification of trace evidence,
expert examination of the personal computer owned by Bill and
defendant, handwriting and linguistics analysis, consensual taping of
telephone conversations, and court-authorized wiretapping of the
telephones of defendant and her parents.
In addition, the State received evidence by
anonymous communications pointing to persons other than defendant as
Bill's murderer. The State alleged these anonymous communications were
further evidence of defendant's guilt because she or someone acting on
her behalf was their source.
In October 2005, a State grand jury indicted
defendant on four charges: first-degree murder, N.J.S.A. 2C:11-3;
second-degree possession of a weapon for an unlawful purpose, N.J.S.A.
2C:39-4a; second-degree desecration of human remains, N.J.S.A.
2C:22-1; and third-degree perjury, N.J.S.A. 2C:28-1. A year later, a
State grand jury returned a second indictment charging defendant in
eight additional counts related to the anonymous communications
received during the investigation. The court consolidated the two
indictments for trial.
Defendant was tried before a jury during February
through April 2007. The prosecution called sixty-four witnesses, and
the defense called sixteen additional witnesses. Also, many
stipulations were read to the jury, thus obviating the need to call
yet more witnesses. Twenty-one witnesses who testified were qualified
by the court as experts in a variety of fields and specialties.
Hundreds of exhibits were admitted in evidence and displayed to the
jury. After twenty-three days of testimony and about three days of
deliberation, the jury convicted defendant on all four charges of the
first indictment and acquitted defendant of the charges in the second
At defendant's sentencing, the court merged the
weapons count with the murder charge and sentenced defendant to life
imprisonment, subject to the provisions of the No Early Release Act
(NERA), meaning that defendant is ineligible for parole for
sixty-three years and nine months on the murder charge. See N.J.S.A.
2C:43-7.2. The court then sentenced defendant to a concurrent term of
ten years for desecrating the remains of her husband, and a
consecutive term of five years on the charge of perjury, with two and
a half years of that sentence to be served before eligibility for
Arguing she did not receive a fair trial, defendant
raises the following arguments on appeal:
I. JURY TAINT DEPRIVED MS. McGUIRE OF A FAIR TRIAL.
A. THE JURORS WERE REPEATEDLY EXPOSED TO HIGHLY
INFLAMMATORY MEDIA ACCOUNTS.
B. THE TRIAL COURT DID NOT VOIR DIRE THE JURORS
C. THE TRIAL COURT FAILED TO INVESTIGATE EVIDENCE
THAT JURORS MAY HAVE BEEN POSTING TO INTERNET MESSAGE BOARDS DURING
D. THE TRIAL COURT APPLIED THE WRONG STANDARD AND
BURDEN OF PROOF.
II. PROSECUTORIAL MISCONDUCT REQUIRES REVERSAL AND
A. THE STATE'S RELIANCE ON THE ABSENCE OF EVIDENCE
IT SUCCESSFULLY EXCLUDED FROM THE CASE REQUIRES REVERSAL (NOT RAISED
B. OTHER PROSECUTORIAL MISCONDUCT CONTRIBUTED TO A
FUNDAMENTALLY UNFAIR TRIAL (PORTIONS NOT RAISED BELOW).
III. THE TRIAL COURT COMMITTED NUMEROUS EVIDENTIARY
ERRORS REQUIRING REVERSAL.
A. THE TRIAL COURT ERRED IN ADMITTING EXPERT
TESTIMONY REGARDING GARBAGE BAGS.
B. THE TRIAL COURT ERRONEOUSLY EXCLUDED RELEVANT,
ADMISSIBLE, AND EXCULPATORY EVIDENCE SUPPORTING THE DEFENSE.
C. REVERSAL IS REQUIRED.
IV. MS. McGUIRE IS ENTITLED TO RESENTENCING.
A. THE TRIAL COURT ERRED BY INVOKING POST-MURDER
CONDUCT TO AGGRAVATE THE MURDER CHARGE (NOT RAISED BELOW).
B. THE COURT ERRONEOUSLY REFUSED TO CONSIDER A
Pursuant to Rule 2:10-2, the plain error standard
of review applies to some of defendant's arguments that were not
raised in the trial court. Under that standard, a conviction will be
reversed only if the error was “clearly capable of producing an unjust
result,” ibid.; if it was “ ‘sufficient to raise a reasonable doubt as
to whether the error led the jury to a result it otherwise might not
have reached[.]’ “ State v. Taffaro, 195 N.J. 442, 454 (2008) (quoting
State v. Macon, 57 N.J. 325, 336 (1971)). Defendant must prove that a
plain error was clear and obvious and that it affected her substantial
rights. State v. Chew, 150 N.J. 30, 82 (1997), cert. denied, 528 U.S.
1052, 120 S.Ct. 593, 145 L. Ed.2d 493 (1999), overruled in part on
other grounds by State v. Boretsky, 186 N.J. 271, 284 (2006).
Other points defendant raises on appeal will also
require that we determine whether any error shown was nevertheless
harmless in the context of the entire trial. Macon, supra, 57 N.J. at
338. An appellate court will disregard “[a]ny error or omission ․
unless it is of such a nature as to have been clearly capable of
producing an unjust result.” State v. Castagna, 187 N.J. 293, 312
To aid our assessment of plain and harmless error,
we will review in detail the evidence presented at the trial.
The State alleged that defendant wanted to end her
marriage to Bill but also had concerns about divorce. She wished to
avoid purchasing a house at substantial expense and beginning a new
phase in a marriage she regretted. In April 2004, defendant conducted
internet research to learn about buying a gun and about poisons,
sedative drugs, and murder. She also made inquiries of a friend about
how to buy a gun. In the evening hours of April 28, 2004, after the
closing on the new house, she allegedly drugged and incapacitated Bill
and then shot him sometime during April 28-29.
During the next three days, according to the State,
and likely with the help of an accomplice as yet unidentified,
defendant caused Bill's body to be cut into sections with a
reciprocating saw and a knife, wrapped the body in industrial-type
garbage bags sealed with adhesive tape, and packed it into the
matching set of luggage. She then drove to Virginia on May 3, where
the suitcases were thrown at night from an isolated stretch of the
Chesapeake Bay Bridge into the bay. Immediately after murdering Bill,
according to the State, defendant embarked on a plan to conceal the
crimes and to create the appearance that Bill had abandoned his
family, his job, and his new house after a violent argument with her.
The State had no eyewitnesses to the murder and
disposing of Bill's body. Also, police investigators found no trace
evidence of a murder or dismembering of a body at the Woodbridge
apartment, despite several intense searches and forensic examinations
beginning in June 2004, a month after the murder. The State's
wiretapping of telephones almost a year later failed to produce
notably incriminating statements by defendant or others. To prove its
case at trial, the State relied largely on forensic and other
circumstantial evidence of defendant's motive and actions during the
relevant time period.
As to motive, the State presented evidence that at
the time of Bill's disappearance, defendant was involved in an
intense, extra-marital love affair with Dr. Bradley Miller, a partner
in the medical practice where she worked. Miller was also married and
had young children. According to Miller's testimony, the intimate
relationship began in 2002. In time, he and defendant spoke about
getting married, buying a house, and having children, although they
had no immediate plans to divorce their spouses. Defendant told Miller
that Bill had once threatened to take their sons and disappear if she
were to file for divorce. A nurse who worked alongside defendant and
was her friend testified she had discussed the high costs of her own
divorce with defendant in the months preceding Bill's disappearance.
Shortly after Bill disappeared, defendant told
Miller, friends, and others that Bill argued with her in the early
morning hours of April 29, 2004, and that, for the first time in their
relationship, he struck her. She said he then left the apartment
abruptly. During the day on April 29, defendant spoke to attorneys
about filing for divorce, and she went to the Middlesex County
Courthouse to apply for a domestic violence restraining order. She
abandoned the effort that day because the court was crowded. That
night, she checked into the Red Roof Inn in Edison, paying for her
room in cash. The same night, defendant drove to Atlantic City.
On June 2, 2004, in her first interview with a
Virginia Beach police detective, defendant said Bill had assaulted her
in the early morning hours of April 29, and she had hidden in a
bathroom of the Woodbridge apartment with one of their sons. She heard
Bill rummaging through the apartment before he left in the middle of
the night, saying she would never see him again. Defendant also told
the Virginia detective that Bill was in the habit of saying things
that angered people, and that he frequently gambled in Atlantic City.
She suggested the police might find him or his car there. She did not
tell the detective she had already traveled to Atlantic City five
weeks earlier, and she had parked Bill's car in a motel parking lot
The detective asked defendant whether Bill used EZ
Pass, the automatic toll collection system available on the Garden
State Parkway, the Atlantic City Expressway, and other eastern toll
roads. Defendant said that Bill had an EZ Pass account but did not
always use it. Two days after the interview, the police found Bill's
Nissan Maxima at a tow yard in Atlantic City. Soon afterward, news
reports surfaced that Bill's car had been found and police had
surveillance film of the person who had parked it at the Flamingo
Motel in Atlantic City.
After those news reports, defendant told Dr. Miller
she had driven to Atlantic City late on the night of April 29 to look
for Bill and his car. She said she found the car in the parking lot of
the Taj Mahal Casino. As a gesture of spite, she moved Bill's car to
the Flamingo Motel, which was about one and a half miles away. She
told Miller she then took a cab back to the Woodbridge-Edison area
because she was tired. Having slept during the ride, she decided to
take another cab back to Atlantic City to retrieve her own car, a
Nissan Pathfinder. Defendant also told Miller she made two later trips
to Atlantic City to look for Bill and to check on the car, on May 2
and 18, 2004. Some months later, after Miller had revealed defendant's
statements to the police, a detective checked with cab companies in
the Woodbridge-Edison area and found no record of a fare on April 30,
2004, to Atlantic City.
Several hours after returning north from her first
trip to Atlantic City, during the afternoon of April 30, 2004,
defendant went again to the Middlesex County Courthouse and this time
testified before a judge to obtain a temporary restraining order
against Bill. Despite having moved his car just hours earlier, she
testified she did not know where Bill could be found.1
At the trial in 2007, the prosecution presented
evidence to show that defendant had plotted to kill her husband for
weeks before his disappearance. A State Police computer expert,
Jennifer Seymour, testified that she examined computers and hand-held
devices that the McGuires had used, including a personal desktop
computer they used in their apartment. On that personal computer,
Seymour found that internet Google searches had been conducted between
April 11 and 26, 2004, for the following topics: “undetectable
poisons,” “state gun laws,” “instant poison,” “gun laws in
Pennsylvania,” “toxic insulin levels,” “fatal insulin doses,” “fatal
digoxin doses,” “instant undetectable poisons,” “how to commit
suicide,” “how to commit murder,” “how to purchase hunting rifles in
NJ,” “pesticide as poison,” “insulin as a poison,” “morphine
poisoning,” “how to find chloroform,” “insulin shock,” “neuromuscular
blocking agents,” “sedatives,” “tranquilizers,” “barbiturates,”
“nembutal,” “pharmacy,” “chloral hydrate,” “chloral and side effects,”
and “Walgreens.” The search for “chloral hydrate” stood out because
the police had found that drug in Bill's car. Also, the references to
gun laws were reinforced by testimony from a long-time friend of
James Finn, who had attended nursing school with
defendant, testified about his long-standing but unreturned romantic
interest in defendant. The two had remained friends over the years and
stayed in contact. As shown by emails admitted in evidence, defendant
wrote to Finn in mid-April 2004 about problems she was having in her
marriage, and she joked about his owning a gun. She said Bill was
acting strangely and was drinking more; she was afraid for her safety.
In response, Finn spoke to her about the requirements for buying a gun
in New Jersey and Pennsylvania.
On April 26, 2004, two days before Bill's
disappearance, defendant bought a Taurus .38 caliber revolver at a gun
shop in Palmer Township, Pennsylvania. As identification, she used her
own Pennsylvania-issued driver's license, which contained her aunt's
address in East Stroudsburg, Pennsylvania. The sales receipt from the
gun shop also showed an item sold for $9.95. The owner of the gun shop
testified that two types of ammunition in the shop were listed for
that price, wad-cutter and round-nose Ultramax bullets. He recalled
the sale of a handgun and ammunition to defendant because she was a
well-dressed woman and because she was the first nurse who had bought
a handgun from him.
After buying the gun, defendant continued to
communicate by email with Finn but did not tell him she had bought a
gun. About a year after Bill's murder, Finn allowed a telephone
conversation with defendant to be recorded by police detectives. At
that time, defendant told Finn that Bill had asked her to buy a gun
for protection in their new home. She said Bill could not buy a gun
himself because he had been convicted of a crime in the past. In
correspondence with Finn before Bill's disappearance, defendant had
not said Bill wanted a gun. In fact, their email communications
indicated that Finn was concerned for defendant's safety in Bill's
presence, and his advice was for her to buy a gun to protect herself
against him. After Bill's murder was discovered, defendant also told
Dr. Miller and other friends that Bill had asked her to buy a gun for
him because he could not buy one himself.
The gun was never found. In filling out an
information sheet when applying for the domestic violence restraining
order on April 29, 2004, defendant had answered “no” to a question
about whether Bill had a gun or there were guns in her house.
Defendant later told Miller and others that she believed Bill had
locked the gun in a box, which she had put away in storage. During
their investigation, the police searched the storage area with
defendant's permission and found a locked box. Inside the box, they
found batteries, not a gun.
The State's forensic experts testified that the
bullets recovered from Bill's body were .38 caliber wad-cutter
bullets. Based on ballistics markings, they could have been fired from
guns produced by six or more manufacturers, including Taurus.
One of the bullets recovered from the body was
covered with greenish-brown fiber strands. Thomas Lesniak, a forensic
scientist employed by the New Jersey State Police, testified that the
fibers were polyester fill, material that might be found in furniture.
The State argued that the fiber strands were evidence that the sound
of gunfire that killed Bill had been muffled, possibly by covering the
gun with a pillow. Lesniak could not positively match the fibers on
the bullet with a green couch or throw pillows that the McGuires had
kept in their apartment. Later in the trial, Bill's sister, Cindy
Ligosh, testified that the McGuires also had other green throw pillows
that had not been recovered by investigators.
In Atlantic City, the police recovered time-lapse
surveillance film made at the Flamingo Motel. The grainy film was not
clear enough to identify the person who had parked Bill's Nissan
Maxima. It showed, however, the time that the car had been parked at
the motel, 12:40 a.m. on April 30, 2004. It also showed a second car
with features in some ways similar to defendant's Nissan Pathfinder
that was also moving and stopped briefly near the motel at that same
During the police investigation, defendant was
mistakenly under the impression that surveillance cameras had also
filmed her on the Delaware Memorial Bridge at the southern tip of the
New Jersey Turnpike. She told Dr. Miller she had traveled to Delaware
on May 4, 2004, to shop for furniture.
Although both defendant's Pathfinder and Bill's
Maxima were equipped with EZ Pass transponders, the police found no EZ
Pass record of either car traveling in the area of Atlantic City on
April 29-30, 2004, or to Delaware and the Chesapeake Bay Bridge-Tunnel
in early May 2004.
When the police found Bill's Maxima on June 4,
2004, they dusted the car for fingerprints but could lift only Bill's
own latent prints from inside the car. On the passenger seat, the
police found Bill's cell phone and pamphlets for Atlantic City and
Virginia Beach hotels. Inside the glove compartment, they found a
syringe similar to ones used at the Morristown medical practice where
defendant worked and a prescription bottle of chloral hydrate, which
is a rarely-prescribed liquid sedative.
The prescription was in the name of a woman who was
a patient of Dr. Miller at the Morristown medical practice. It had
been filled at 8:32 a.m. on April 28, 2004, the date of Bill's
disappearance, at a Walgreens pharmacy in Edison. The McGuires'
computer indicated an internet search for “Walgreens” close to the
same date. Records from the McGuire children's daycare facility showed
that defendant had dropped off her sons there at 8:20 a.m. on April
28, 2004. The Walgreens pharmacy in Edison is 1.5 miles, or a drive of
about eight minutes, from the children's daycare facility.
Evidence from the pharmacy showed that the
prescription had been ordered by Dr. Miller on a prescription pad from
the Morristown medical practice. Miller denied having written the
prescription, and a handwriting expert testified that the writing was
not his. The expert could neither identify the signature as one
written by defendant nor exclude her as the writer. The managing
partner at the medical practice testified that he and other doctors in
his practice were unlikely to prescribe chloral hydrate for their
patients. He also testified that nurses were permitted to sign
prescriptions, and that it was not unusual for defendant to have
signed Miller's name.
The patient whose name was on the prescription
testified that she had appointments with Dr. Miller in March and April
2004, but she never received a prescription for chloral hydrate, and
she had never been to the Walgreens pharmacy in Edison. She testified
the written prescription showed her correct date of birth and a
telephone number that was off by one digit from her telephone number.
The State alleged that defendant forged and
obtained the prescription after dropping off her children at daycare
on the morning of April 28. Sometime that night, she allegedly sedated
Bill by pouring the liquid chloral hydrate into a drink, and she shot
him while he was unconscious, using a pillow or something similar to
muffle the sound of gunfire.
According to the State, defendant immediately began
covering up the murder by creating evidence that Bill had abruptly
abandoned his home, as she believed he had done to end his first
marriage. In the early morning of April 29, an email was sent from
Bill's Blackberry to two of his supervisors stating “I will be out
sick today.” Bill's Blackberry was later found in the trunk of his
Maxima in Atlantic City. It indicated that one of the emails sent to a
supervisor had not been delivered. According to a co-worker of Bill,
the email was sent to an incorrect address and Bill knew the correct
The State also contended that on the afternoon of
April 30, 2004, defendant used Bill's cell phone to place a call to
his best friend in Virginia, as shown by Bill's cell phone records.
The friend testified that he did not receive a call from Bill on that
date. He testified further that Bill had always left a message on the
answering machine, but no message was left on April 30. The
prosecution alleged that defendant made the one-minute call and hung
up only to create an appearance that Bill was still alive on that
The State also alleged that defendant took a second
trip to Atlantic City during the night on May 1-2, 2004, allegedly
with her stepfather, Michael Cappararo. Her purpose was to check on
Bill's car and also to create additional false evidence suggesting
that Bill was still alive and staying in the Atlantic City area. In
May and June 2004, defendant told Bill's sister and the Virginia
homicide detective that the caller i.d. feature on her apartment
telephone showed a call from Bill's cell phone to the apartment in the
middle of the night on May 2, but no message had been left. In fact,
Bill's cell phone records showed a one-minute call at 1:10 a.m. on May
2 to the Woodbridge apartment. EZ Pass records, however, identified
the transponder kept in defendant's Pathfinder passing a toll plaza on
the Atlantic City Expressway at 12:54 a.m. on May 2, just sixteen
minutes before the call from Bill's cell phone. Bill's cell phone was
later found in his Maxima.
On June 3, 2004, one day after the Virginia
detective had asked defendant about EZ Pass records, defendant called
customer service at EZ Pass and insisted that two charges on her
account for May 2 and 18 near Atlantic City were incorrect. Customer
service refused to remove the charges. The State alleged that, in her
travels to Atlantic City and Virginia, defendant had purposely paid
tolls in cash because she knew using EZ Pass would create records of
her trips. In support of that allegation, the State noted that no
other EZ Pass records were found for travel to Atlantic City, although
Bill's car obviously was driven from Woodbridge to Atlantic City on
April 29, and defendant told Miller she had driven her own car back
and forth to Atlantic City on April 29-30, and also that she had
traveled to Delaware on May 4. Theorizing that the EZ Pass records for
May 2 and 18, 2004, were created when defendant drove through a toll
booth that accepted both cash and EZ Pass, the State alleged that
defendant complained to customer service about two forty-five-cent
toll charges because she was upset that a record of her travels
existed despite her efforts to conceal them.
To answer the prosecution's allegations, the
defense presented evidence of other occasions when Bill had apparently
been in Atlantic City without corresponding EZ Pass records. Regarding
the customer service call, the defense argued to the jury that
defendant had panicked after the Virginia detective asked about EZ
Pass records because she did not want to be falsely implicated in
The State also placed in evidence EZ Pass records
of defendant's parents, who lived in Ocean County and traveled
frequently on the Garden State Parkway. Those records showed unusual
absence of activity from April 28 through May 2, the period when
defendant had traveled twice to Atlantic City and Bill's body was
allegedly being cut and packaged in suitcases.
The State argued that EZ Pass records that existed
for defendant and her parents on the afternoon of May 3 suggested they
had met, and then each had returned in their earlier directions. Based
on the times and locations of the tolls registered, and records from
the children's daycare facility, the State argued that defendant had
picked up her sons from daycare on the afternoon of May 3 and
transferred them to one or both of her parents' care, possibly at the
Cheesequake rest area of the Garden State Parkway in Middlesex County.
Then, according to the prosecution, defendant had returned to
Woodbridge to pick up the suitcases for the trip to Delaware and
Virginia that night to dump the body.
The State also theorized that defendant planted the
prescription bottle of chloral hydrate and a syringe in Bill's car to
create the appearance that he was abusing drugs, as she had told
friends, and in case the body was recovered and chloral hydrate was
detected. Bill's autopsy and toxicology reports, however, revealed no
evidence of drugs in his body.2
The State argued further that brochures for
Atlantic City and Virginia Beach hotels were placed on the front seat
of Bill's car to create an appearance that he was staying in hotels.
The prosecution argued that Bill was very familiar with both Atlantic
City and Virginia Beach and cited evidence that Bill had compensation
offers from the Taj Mahal Casino that he could have used to pay for a
room but did not.
Immediately upon finding Bill's car, the police
vacuumed the interior for trace evidence. Among the debris from the
front floor mats, the State's expert, Lesniak, found very small
particles of human tissue. DNA testing of the tissue matched it with
Bill's DNA. Dr. Zhongue Hue, the State's Regional Medical Examiner,
identified the particles as skin with associated fibrous connective
tissue. He testified that the deep layers of skin in that tissue would
not normally be shed by a live human being. While it was possible that
the tissue might be lost as the result of a cut or gouge, such an
injury would cause significant bleeding and scarring, but the Virginia
medical examiner had observed no scars on Bill's body.
The State asserted that the human tissue particles
found on the floor mats were evidence that defendant had been involved
in the cutting up of Bill's body. It argued that defendant, or her
accomplice, had driven the Maxima to Atlantic City and had later
entered it again on May 2 to plant evidence. In the course of those
activities, according to the prosecution, defendant or her accomplice
had transferred on their shoes miniscule particles of Bill's tissue
that had been inadvertently scattered at the location where the body
had been cut into sections with a saw and a knife.
The State argued it did not have to prove where the
body had been dismembered, but it was most likely in the Woodbridge
apartment. In support of that contention, the State noted that
defendant took a room and slept at the Red Roof Inn from April 29 to
May 1, although she could presumably have stayed in her apartment, or
with her children in her parents' Ocean County home. The prosecution
argued that defendant did neither because Bill's body was in the
apartment, and she needed to remain close to Woodbridge while engaged
in the task of disposing of the body and eliminating evidence from the
apartment. Citing records from the Red Roof Inn and defendant's
telephone, the prosecution argued that defendant had the opportunity
to spend many daytime hours from April 29 to May 1 in the apartment.3
To establish the connection between the Woodbridge
apartment and Bill's murder, the State emphasized expert examinations
of evidence found in the suitcases thrown into the Chesapeake Bay and
related circumstantial evidence. When first interviewed by the
Virginia detective, defendant had said she and Bill did not own
matching luggage. The next day, she had remembered a set of luggage
they owned and identified a picture of a suitcase shown by the
detective as resembling their matching set. A ten-inch hair had been
found in one of the suitcases and was identified by DNA analysis as
possibly coming from defendant.
The Virginia detective testified that when he
examined Bill's Maxima in the Atlantic City tow yard, it was his
opinion that the three suitcases would not have fit in the trunk, and
there were two child seats fastened in the back seat. This testimony
was intended to refute the defense contention that Bill had packed
three suitcases on the night of his disappearance and driven off to
Atlantic City, only to be murdered by an unknown person at a later
The prosecution also noted that Bill had not taken
his wallet on his alleged flight. The police found the wallet in
storage utilized by defendant after she moved from the apartment.
Although Bill's driver's license and credit cards were not in the
wallet, it contained two recently-obtained business cards, tending to
show that Bill had been using the wallet as of April 2004.
Inside the suitcases, Bill's body had been wrapped
in garbage bags sealed with adhesive tape. Those items were crucial
evidence used by the prosecution at the trial. When moving out of the
Woodbridge apartment at the end of May 2004, defendant had gathered
Bill's clothing for disposal in several industrial-type garbage bags.
An acquaintance who was helping defendant move her belongings kept the
bags of Bill's clothing. Later, the police recovered from the
acquaintance the garbage bags he had taken.
State experts compared the garbage bags taken from
the Woodbridge apartment to the garbage bags found in the suitcases.
Frank Ruiz was qualified by the trial court as an expert witness in
plastic bag technology and manufacturing by virtue of his twenty-seven
years of experience in the plastic bag industry and his degree in
chemistry. Ruiz testified that the two sets of garbage bags were
produced on the same production line and within hours of each other.
State Police forensic scientist Lesniak also examined the garbage
bags. He testified as a tool mark expert that the two sets of bags
contained markings revealing that they were produced with the same
tools and therefore on the same extrusion line. Using the testimony of
these two expert witnesses, the State asserted that the garbage bags
the killer used to wrap the body in early May 2004 came from the same
source as those that defendant used to pack Bill's clothes later in
Defendant presented testimony from Sally Ginter, a
polymer chemist and the owner of a consulting company who had
contacted the defense team after learning on television about Ruiz's
testimony at the trial. Ginter disputed Ruiz's conclusions and
testified for the defense that the proper interpretation of Ruiz's
test results was that the garbage bags from the apartment did not
match those from the suitcases.
From adhesive tape inside the suitcases, the State
recovered a particle of red nail polish and some small hairs. Through
microscopic examination, the State's expert described the hairs as
being cut at both ends, like shaving stubble. One of the hairs was
identified with Bill's DNA and one with defendant's DNA. The State
argued to the jury that these small cut hairs were evidence that
Bill's body was cut and wrapped in a bathroom of the McGuire
apartment, where such shaving stubble might have inadvertently found
its way onto the adhesive tape used to wrap the body.
In one of the suitcases, a blanket had been wrapped
around the torso's head. The blanket was imprinted with the initials
“HCSC,” a company that supplied linens to about one hundred hospitals
and doctors' offices in New Jersey. An account representative from
HCSC recognized the blanket as one of the company's products, and
further testified that the medical practice in Morristown where
defendant worked had been his client since 2001. In April 2004, he was
shipping approximately one hundred such blankets per week to that
After defendant was charged with Bill's murder in
June 2005, and then released on bail, law enforcement authorities
received anonymous communications directing them to persons other than
defendant. In August 2005, copies of a single-spaced, four-page letter
were sent to a newspaper, defendant's former attorney, and others.
Addressed to the Attorney General of New Jersey, the anonymous letter
was purportedly typed by someone with a criminal inclination who was
concerned about defendant's children being left without a mother. The
writer claimed to have killed “Billy Mac” because he had become
unreliable and greedy. To prove that the letter was not a hoax, the
writer accurately recited three evidential facts about the murder and
the cutting of the body that had not been reported in the news. The
prosecution read the entire letter to the jury, including its detailed
information about Bill's thoughts and his mistreatment of defendant.
Bill had allegedly revealed this information during his criminal
contacts with the confessing, anonymous killer.
On October 11, 2005, a Federal Express package was
delivered to the prosecutor. The package contained a letter to “Dear
Madam Assistant Attorney General,” purportedly from an anonymous
co-worker of Bill's sister, Cindy Ligosh, at the Weichert Realty
office in Franklin Lakes. The writer enclosed several items that were
allegedly found in the trash at her office, including a wedding ring
and bracelet believed to belong to Bill, an empty Ultramax ammunition
box, a key to Bill's Nissan Maxima, a key to the lock box found in the
storage facility, rubber gloves, prescription medications, and
marijuana wrapped in tinfoil. The package also contained allegedly
discarded sheets of notepaper with writing that the anonymous sender
identified as Ligosh's handwriting.4
The return address on the Federal Express package
was Weichert Realty, on Franklin Road, Franklin Lakes, New Jersey. The
Weichert office manager, Tamar Joffee, testified that the correct
address for her office was Franklin Avenue, not Franklin Road. She
also testified that the wrong telephone number was listed on the
letterhead, that the Weichert logo was a forgery, and that the office
did not use Federal Express at that time.
Shipping charges for the Federal Express package
were paid with a $50 American Express gift card, which was purchased
at 3:48 p.m. on October 9, 2005, at a Rite Aid Pharmacy in Passaic.
Surveillance film footage from a bank near that pharmacy showed that
at 3:42 p.m. on that date, a woman walked from the parking lot into
the Rite Aid Pharmacy. The film footage was shown to the jury, each
side at trial contending that the woman shown did or did not resemble
The State presented testimony from James
Fitzgerald, an expert in forensic linguistics, who examined and
compared known writing samples from defendant with the single-spaced
August letter to the Attorney General and the Federal Express
documents. Fitzgerald pointed out several similarities between the
known samples and the anonymous documents. He also found the
salutation “Dear Madam Assistant Attorney General” to be significant
and compared it to a recorded telephone conversation in which
defendant referred to the prosecutor as “Madam Deputy Attorney
The defense presented the testimony of linguistics
expert Carole Chaski, who disputed Fitzgerald's findings and testified
about differences in the known and anonymous writings. Chaski
concluded that defendant could not be identified as the writer of the
In addition to its own experts and character
witnesses, the defense vigorously cross-examined the State's witnesses
and contended that none of the evidence proved defendant murdered her
husband or cut up his body. The defense emphasized the absence of any
forensic evidence in the Woodbridge apartment that would have shown
several gunshots being fired or a body being cut with a power saw. It
asserted that neither neighbors nor anyone else had heard or seen
anything connected with a shooting or cutting up of a body.
The defense also relied heavily on the absence of
incriminating statements by defendant in the wiretap and consensual
recordings detectives obtained during the course of their
investigation. The defense argued defendant had bought a handgun on
April 26 at Bill's urging because Bill could not buy a gun himself.
The defense contended that from the time the investigation was moved
from Virginia to New Jersey, the police focused solely on defendant
and that numerous leads concerning Bill's gambling, alleged substance
abuse, and alleged association with criminals were not pursued.
On appeal, defendant challenges evidentiary rulings
of the trial court. She argues error in the admission of opinion
testimony by the two State experts, Ruiz and Lesniak, who compared and
matched the garbage bags. She also argues the trial court erred in
limiting defense evidence.
Many types of evidentiary rulings by a trial court
are entitled to deference and will not be disturbed on appeal unless
there was a clear abuse of the trial court's discretion. See Estate of
Hanges v. Met. Prop. & Cas. Ins. Co., 202 N.J. 369, 382 (2010) (citing
cases under several rules of evidence applying the abuse of discretion
standard of review to the trial court's rulings). The admission of
expert testimony, however, may involve both the abuse of discretion
and the plenary standards of review. The qualifications of an expert
and the admissibility of opinion or similar expert testimony are
matters left to the discretion of the trial court. State v. Torres,
183 N.J. 554, 572 (2005); State v. Summers, 176 N.J. 306, 312 (2003).
But appellate deference is not required on the question of whether a
particular field or scientific discipline is sufficiently reliable and
generally accepted in the relevant professional or scientific
community. State v. Harvey, 151 N.J. 117, 167 (1997), cert. denied,
528 U.S. 1085, 120 S.Ct. 811, 145 L. Ed.2d 683 (2000). An appellate
court may independently review scientific literature, judicial
decisions, and other authorities to determine whether proposed expert
testimony is scientifically reliable and has obtained general
acceptance so that it may be admitted in our courts. Torres, supra,
183 N.J. at 567.
The State alleged that the garbage bags defendant
used to dispose of Bill's clothing in late May came from the same
source as those used to wrap Bill's severed body a few weeks earlier.
The match tended to connect the Woodbridge apartment to desecration of
the body, and hence, defendant's involvement in both the desecration
and the murder. Before the trial began, the court held lengthy
hearings pursuant to N.J.R.E. 104 to determine the admissibility of
Ruiz's and Lesniak's testimony.
Ruiz testified he had a bachelor's degree in
chemistry from the Massachusetts Institute of Technology and was
employed as Technical Director at a plastic bag manufacturing company.
He had twenty-seven years of experience in the plastic bag industry,
including extensive activity on boards and associations. He had
published papers on the technology of plastic film extrusion. He had
previously been qualified twice to testify in courts as an expert in
plastic bag manufacturing and identification.
Ruiz provided detailed testimony about how plastic
garbage bags are manufactured and the materials and machinery used in
the process. He testified that die lines, or striations, which are
lines along the length of a bag, are caused in the manufacturing
process by build-up of impurities on the lip of the die through which
the polymer material must pass. Die lines may have distinct shapes,
widths, spacing, and opacity. The patterns will change in a matter of
hours as material accumulates on the die.
For purposes of his expert evaluation in this case,
Ruiz visually inspected the two sets of garbage bags and determined
they were identical in design, size, thickness, color, and sealing
characteristics. He explained potential reasons for slight color and
opacity variation in the two sets of bags. Most important to his
conclusions, he determined that the die lines between the two sets
were a match, indicating a single manufacturing process.
To supplement his findings, Ruiz conducted tests in
his company's laboratory to determine the chemical composition of the
two sets of bags. An infrared spectroscopy analysis indicated that the
raw materials used for the two sets of bags were identical. A test
called differential scanning calorimetry measured the temperature at
which the polyethylene in the bags melted. Tests on one bag from the
suitcases and one bag from the apartment yielded consistent results,
demonstrating that both specimens had the same crystalline structure.
This result was significant because resins will have different melting
points depending on their original manufacturers.
Ruiz also performed an ash test to burn away the
polyethylene and compare the inorganic materials added in the
manufacturing process. The ash test showed similar, although not
identical, inorganic materials in each set. Ruiz explained the reasons
for the results of the ash test and concluded that the differences
were not significant.
Ruiz testified that all the bags were made of
linear low density polyethylene that had been manufactured from
reprocessed scrap film plastic, and thus they contained more peculiar
identifying characteristics than bags manufactured from virgin
polyethylene material. He concluded that both sets of bags were
manufactured from the same box of reprocessed plastic material.
Ruiz also explained that die lines will vary more
rapidly when reprocessed material is used because contaminants are
present and accumulate on the surface of the die. At some point, the
accumulation will affect the quality of the bags and the manufacturing
line must be shut down so the die can be cleaned. In Ruiz's plant, the
die was typically cleaned every four or fewer hours. An identical
marking pattern on the two sets of bags shows the bags were
manufactured using the same die and within hours of one another. Based
on all his test results, Ruiz concluded that all the bags were made
from the same batch of reprocessed material in a single production
Under N.J.R.E. 702, the proponent of expert
testimony must establish three basic foundational requirements: “(1)
the intended testimony must concern a subject matter that is beyond
the ken of the average juror; (2) the field testified to must be at a
state of the art such that an expert's testimony could be sufficiently
reliable; and (3) the witness must have sufficient expertise to offer
the intended testimony.” Hisenaj v. Kuehner, 194 N.J. 6, 15 (2008).
“Those requirements are construed liberally in light of Rule 702' s
tilt in favor of the admissibility of expert testimony.” State v.
Jenewicz, 193 N.J. 440, 454 (2008).
In arguing against admission of Ruiz's testimony,
defendant does not challenge any of the three listed criteria for
admission of expert testimony. Rather, she contends that Ruiz failed
to follow proper testing protocols, such as using a control set of
bags to test the accuracy of his results, and he did not conduct yet
additional chemical tests.
To challenge Ruiz's conclusions, the defense
presented the testimony of its own expert, Sally Ginter, who also had
a degree in chemistry and had previously been employed at Dow Chemical
Company. Ginter testified that Ruiz had not conducted all the tests
necessary to match the bags, and that the tests he performed showed
significant differences between the two sets. On cross-examination,
however, Ginter acknowledged she had no experience with the
manufacturing process of garbage bags. She also admitted that part of
her analysis and criticism of Ruiz resulted in her concluding that two
garbage bags that were both taken from the suitcases also were not a
Defendant's arguments against Ruiz's methodology
and conclusions might have affected the credibility and weight of his
testimony, but not its admissibility. See State v. Noel, 157 N.J. 141,
146-47 (1999); see also United States v. Davis, 103 F.3d 660, 674 (8th
Cir.1996) (cross-examination and presentation of contrary evidence are
the appropriate means of attacking expert testimony that is otherwise
admissible), cert. denied, 520 U.S .1258, 117 S.Ct. 2424, 138 L. Ed.2d
187 (1997). The trial court committed no error in admitting Ruiz's
expert testimony about the two sets of garbage bags.
Defendant argues more vigorously that Lesniak was
erroneously permitted to testify as an expert in tool mark analysis
and to conclude that the two sets of bags were a match. She argues
that Lesniak was not qualified to testify about manufacturing of
plastic bags and that his tool mark analysis was inadmissible “junk
At the pretrial hearing, Lesniak testified he had
worked as a forensic scientist in the New Jersey State Police Office
of Forensic Sciences since 1980. He had a bachelor's degree in
forensic science from John Jay College of Criminal Justice and
completed an internship in trace evidence analysis. During his
employment by the State Police, Lesniak had attended numerous classes
given by the FBI and ATF, the federal Bureau of Alcohol, Tobacco, and
Firearms, and he had received instruction from many other sources on a
variety of disciplines in forensic evaluation of potential evidence
for criminal prosecutions.
In his twenty-seven years as a forensic scientist,
Lesniak had participated in ten cases that required comparison of
garbage bags. He was trained in the discipline by his supervisor
during an important case in the 1980s, and he had read journal
articles and spoken to people who work in plastic bag manufacturing to
learn more about the subject. Lesniak explained his knowledge of the
manufacturing process for plastic garbage bags in terms very similar
to those used by Ruiz. He described the same causes for die lines or
As to tool mark analysis, Lesniak testified he was
trained by ATF ballistics experts. Among many other competency tests
over the years, he had taken a tool mark certification test each year
since the certification procedures were established by the ATF, and he
had passed every test. He had performed hundreds of tool mark
examinations. Of the approximately 200 times he had testified as a
forensic science expert, three cases in New Jersey involved his
expertise in tool mark identification.
Regarding the theory and methodology of the
discipline, Lesniak testified that tools can leave marks on an
examined object because of unique qualities and imperfections. If
there are enough such marks, the analyst might be able to identify the
type of tool, or sometimes the actual tool. Lesniak testified he did
not need expertise as to every potential tool before undertaking an
examination. He could learn through examination and further research
how a tool new to his experience worked and might have left
For this case, Lesniak examined the two sets of
garbage bags, first, by physically comparing their dimensions,
thickness, shape, seals, skirts, folds, and perforation marks. He
found all those physical properties to be consistent between the two
sets. He then cut the bags and examined them on a large light box,
finding die striations forming a “wood grain” type pattern that
matched in both sets of bags. He displayed his findings by the use of
photographs of the bags placed side by side. He also observed that, on
both the open and sealed ends of all the bags, there was “a little
cliff” where the straight edge of the bag dropped down and then went
back up. This observation was significant to Lesniak's tool mark
analysis. He conducted further research to learn the cause of the
Although the manufacturer of the bags recovered in
this investigation could not be identified, Lesniak visited a plastic
bag manufacturing plant in New Jersey to observe the cutting process.
An unidentified plastics engineer at the plant suggested to him that a
“cliff” at the cut edge of bags could be caused by an operator putting
one of the cutting blades in backwards. Relying in part on his
understanding of the cause of “cliffs” at the edges of the bags,
Lesniak testified at the pretrial hearing that the bags in which the
body was wrapped and the bags with Bill's clothing were made on the
same manufacturing line in close sequential order, perhaps as close as
within twenty bags of one another.
After hearing cross-examination and considering
counsel's arguments, the trial court ruled that Lesniak was qualified
to testify as an expert in tool mark analysis and that he could
explain his examination of the tool marks he actually observed on the
bags. However, Lesniak was not permitted to testify that the bags were
manufactured at the same time because he was not a chemist or an
expert in plastic bag composition.
Lesniak's trial testimony was consistent with his
testimony at the evidentiary hearing as limited by the court's ruling.
He stated his opinion that the bags from the apartment and the bags
from the suitcases were produced on the same extrusion line, but he
did not testify that they were manufactured in close sequential order.
In the trial court, defense objections to Lesniak's
testimony did not include the argument made for the first time on
appeal that tool mark analysis as a discipline is not scientifically
reliable. We do not have a factual record to evaluate thoroughly
defendant's new argument that expert tool mark analysis should not be
admitted at all in our courts. The trial court is not expected “to
investigate sua sponte the extent to which the scientific community
holds in esteem the particular analytical writing or research that the
proponent of testimony advances as foundational to an expert opinion
.” Hisenaj, supra, 194 N.J. at 16. If a party opposes expert testimony
on the ground that the field has not obtained general acceptance, that
party should raise that issue at trial. Ibid.
Despite the absence of a factual record, we have
considered defendant's arguments based on scientific literature issued
since the time of her trial. See State v. Behn, 375 N.J.Super. 409,
429-30 (App.Div.), certif. denied, 183 N.J. 591 (2005). We find no
error in the trial court's implicit acceptance of tool mark analysis
as a proper subject for expert testimony.
In New Jersey, expert evidence must meet the
standard articulated in Frye v. United States, 293 F. 1013, 1014
(D.C.Cir.1923). Harvey, supra, 151 N.J. at 169. “Admissibility of
scientific test results in a criminal trial is permitted only when
those tests are shown to be generally accepted, within the relevant
scientific community, to be reliable.” State v. Chun, 194 N.J. 54, 91,
cert. denied, --- U.S. 158, 129 S.Ct. 158, 172 L. Ed.2d 41 (2008). The
technology cannot be merely experimental, and the demonstrable
technique must be widely accepted within the relevant profession.
Harvey, supra, 151 N.J. at 171. To demonstrate acceptance, the
proponent of the evidence can present (1) expert testimony as to the
general acceptance in the profession of the premises on which the
analysis was based; (2) authoritative scientific and legal writings;
or (3) judicial opinions that indicate the expert's premises have
gained general acceptance. State v. Kelly, 97 N.J. 178, 210 (1984).
Here, Lesniak testified that the FBI and ATF offer
training courses in tool mark analysis, and a standardized proficiency
examination has been devised to certify tool mark analysts. He
explained the basic premises of the discipline and provided examples
of how such tool mark analysis is performed. He stated he had been
conducting tool mark examinations for many years and had previously
testified as an expert in that discipline. His testimony, therefore,
established the general acceptance of the discipline in the forensic
Moreover, tool mark analysis is not a newcomer to
the courtroom. See Ramirez v. State, 810 So.2d 836, 845-46 (Fla.2001)
(theory and acceptance of tool mark evidence in the courts under the
Frye standard of admissibility). Testimony by tool mark experts has
been admitted in New Jersey courts without objection. See Behn, supra,
375 N.J.Super. at 419 (testimony from “a ballistics and tool mark
identification expert”); State v. Cito, 213 N.J.Super. 296, 299
(App.Div.1986) (tool mark expert identified screwdriver seized from
the defendant's home as tool that was used to break into burglarized
home), certif. denied, 107 N.J. 141 (1987).
Courts in other jurisdictions have also admitted
tool mark evidence. See, e.g., United States v. Bowers, 534 F.2d 186,
193 (9th Cir.) (record was sufficient to show that tool mark
identification rests upon scientific basis and is reliable and a
generally accepted procedure), cert. denied, 429 U.S. 942, 97 S.Ct.
360, 50 L. Ed.2d 311 (1976); United States v. Monteiro, 407 F.Supp.2d
351, 372 (D.Mass.2006) (tool mark identification of cartridge casings
is admissible); Commonwealth v.. Foreman, 797 A.2d 1005, 1017-18
(Pa.Super.Ct.2002) (“tool mark identification is a scientifically
recognized area for expert testimony in this Commonwealth”).
In Ramirez, supra, 810 So.2d at 851-52, the Supreme
Court of Florida analyzed in depth, and ultimately rejected as
inadmissible, an expert's testimony that a specific knife caused
wounds to the body of a murder victim. In the course of its review,
however, the court distinguished general acceptance of tool mark
analysis when examining hard surfaces as opposed to soft human tissue.
The court cited a long history of cases from many jurisdictions
indicating judicial acceptance of tool mark analysis as applied to
marks left upon hard surfaces. Id. at 845-46. Here, Lesniak's tool
mark analysis involved an object, the garbage bags, rather than human
Defendant's criticism of tool mark analysis is
extrapolated from commentary in a report by the National Research
Council of the National Academy of Sciences titled Strengthening
Forensic Science in the United States: A Path Forward (2009) (“NAS
report”). The NAS report was issued in 2009, after defendant's trial.
It contains some criticism of tool mark analysis, including lack of
information about variances among individual tools, lack of a clearly
defined process, and a limited scientific base of knowledge. Id. at
5-18 to 5-21. But the NAS report does not label the discipline “junk
science.” It acknowledges that tool mark analysis can be helpful in
identifying a class of tools, or even a particular tool, that could
have left distinctive marks on an object. Id. at 5-21. The report
concludes that development of a precisely specified and scientifically
justified testing protocol should be the goal of tool mark analysis.
Since the NAS report was issued, at least two
courts have refused to exclude forensic evidence based on criticism
contained in that report. See United States v. Rose, 672 F.Supp.2d
723, 725 (D.Md.2009) (fingerprint analysis); Johnston v. State, 27
So.3d 11, 20-23 (Fla.) (fingerprint and footwear analysis), cert.
denied, --- U.S. 459, 131 S.Ct. 459, 178 L. Ed .2d 292 (2010). As
noted in those cases, the purpose of the NAS report is to highlight
deficiencies in a forensic field and to propose improvements to
existing protocols, not to recommend against admission of evidence.
See Rose, supra, 672 F.Supp.2d at 725 (quoting Hon. Harry T. Edwards
[co-chair of committee], Statement Before U.S. Senate Judiciary
Committee (March 18, 2009) (“nothing in the [NAS] Report was intended
to answer the ‘question whether forensic evidence in a particular case
is admissible under applicable law’ ”)).
Defendant cites two decisions that have ruled
expert testimony inadmissible after considering criticisms contained
in National Research Council reports. In Ragland v. Commonwealth, 191
S.W .3d 569, 578 (Ky.2006), the issue was the reliability of
comparative bullet lead analysis, a discipline involving metallurgy,
which the FBI had already announced it would no longer pursue. Id . at
579. In Commonwealth v. Lanigan, 596 N.E.2d 311, 314-16 (Mass.1992),
the court relied on a National Research Council report on DNA profile
frequencies to conclude that the DNA identification proffered in that
case was not scientifically reliable. The DNA report referenced in
Lanigan is not the 2009 NAS report, and it did not constitute the sole
basis for the Massachusetts court's decision. In Harvey, supra, 151
N.J. at 197-99, our Supreme Court addressed concerns raised in Lanigan
about DNA methodology and concluded that the National Research Council
criticism may have affected the weight and credibility of the
scientific evidence, not its admissibility. Neither Ragland nor
Lanigan supports defendant's assertion that the 2009 NAS report
provides sufficient reason to exclude Lesniak's tool mark testimony.
“Proof of general acceptance does not mean that
there must be complete agreement in the scientific community about the
techniques, methodology, or procedures that underlie the scientific
evidence.” Chun, supra, 194 N.J. at 91-92. Tool mark identification
has been generally accepted and admitted in many courts, both within
and outside New Jersey. On the record developed at trial in this case,
and considering the arguments made now on appeal, we find no error in
admission of tool mark analysis as a field appropriate for expert
Defendant also argues that Lesniak's opinion about
the “cliffs” on edges of the bags was inadmissible hearsay from an
unidentified person and not a valid basis for expert testimony.
Lesniak explained that on his visit to a manufacturing plant, he
personally examined the tool that cut bags, and he observed how a
blade might be replaced backwards. After seeing how the cutting tool
worked, he concluded that the “cliffs” in the bags in this case were
likely caused by a backwards blade. He thus formulated his own
opinion. There is nothing improper about an expert obtaining
information from an outside source, as long as the expert makes an
independent evaluation of the information and is able to explain the
basis for the opinion that he reached. See Noel, supra, 157 N.J. at
We reject without further discussion defendant's
challenge to Lesniak's qualifications. R. 2:11-3(e)(2). We conclude
the trial court did not err in admitting the tool mark testimony of
Lesniak and his opinion matching the two sets of garbage bags.
Finally, even if Lesniak's tool mark analysis
should have been excluded, its admission was at most harmless error.
Much of Lesniak's testimony about the garbage bags was duplicative of
Ruiz's testimony. Lesniak's testimony was not “clearly capable of
producing an unjust result,” R. 2:10-2, because Ruiz persuasively
provided the same expert opinions on the basis of thorough and
complete visual and chemical examination of the two sets of bags.
Defendant asserts the trial court erred in limiting
testimony offered by the defense from Marcie Paulk, Bill McGuire's
ex-wife, and from George Lowery, a consultant who was acquainted with
Bill through their collaborative work on a computer project.
Paulk was called by the defense to testify that
Bill walked away from their marriage in 1992 and did not reappear. She
would have testified that Bill used their credit cards to their limits
and drove Paulk into bankruptcy. The defense argued Paulk's testimony
would add credence to defendant's statements that Bill walked out on
his second marriage on April 29, 2004. It also would have explained
defendant's conduct after Bill's disappearance, such as changing bank
accounts and not filing a missing person's report, as well as her
attitude about the murder as captured on wiretapped telephone
The court ruled that Paulk's proposed testimony
from so many years earlier did not constitute admissible habit or
custom evidence, and the remote time made it irrelevant to issues in
this case and ultimately prejudicial. Further, it was “inappropriate
and inflammatory in that it really amounts to a character attack and
an appeal to the sympathy of the jury.”
Paulk subsequently testified before the jury about
an email she had received from Bill in early 2004, which was relevant
to his alleged use of the home computer, but she was not questioned
about the circumstances of their marriage and divorce.
A trial court has broad discretion under N.J.R.E.
403 to exclude evidence that may be prejudicial or that may divert the
jury's focus from the relevant issues in the case. See State v. Sands,
76 N.J. 127, 144 (1978). Under that rule of evidence, potentially
relevant evidence may be excluded if its probative value is
substantially outweighed by the risk of undue prejudice, confusion of
issues, or undue delay. The trial court's balancing of factors under
N.J.R.E. 403 “is subject to the abuse of discretion standard, which
sustains the trial court's ruling ‘unless it can be shown that the
trial court palpably abused its discretion, that is, that its finding
was so wide [of] the mark that a manifest denial of justice resulted.’
“ State v. Lykes, 192 N.J. 519, 534 (2007) (quoting Green v. N.J.
Mfrs. Ins. Co., 160 N.J . 480, 492 (1999)). There was no denial of
justice in excluding Paulk's proposed testimony.
The testimony was clearly not admissible under
N.J.R.E. 406 as evidence of Bill's habit or routine of leaving wives.
It was potentially relevant to explain defendant's behavior following
Bill's disappearance, but it was also highly inflammatory and
prejudicial. It would have injected into the trial collateral and
complex issues about Bill's first marriage. It had the potential of
diverting the focus of the jury and confusing issues by raising
matters that occurred twelve years earlier and that could not be
adequately addressed in this case. Balanced against the potential
prejudice and confusion of issues, the probative value of Paulk's
proposed testimony was slight. We conclude the trial court did not
abuse its discretion in excluding it.
The defense also proffered that George Lowery would
testify “regarding conversations with William McGuire where he talked
about wanting to purchase or possess a gun because his headlights kept
getting stolen out of his car in late 2003.” Lowery would have
testified that Bill told him he “wanted to get a gun, but was not able
to. He couldn't get a permit․ He didn't share that with Mr. Lowery,
that he was a convicted felon, but just said he couldn't get a permit,
and he was going to have ․ his wife ․ secure that for him.”
After hearing argument from both sides, the trial
court ruled that Lowery's testimony would be limited to having had a
discussion with Bill about the purchase of a firearm without specifics
of Bill's alleged statements. The court stated that Bill's “state of
mind prior to the time of the murder is not really that significant,”
and his statements were inadmissible hearsay because they “cannot be
verified at this point or determined to be reliable .”
Before the jury, Lowery testified that he began
working on a project with Bill in January 2003 and met with him every
one to two months. He had a conversation with Bill two or three months
before he died about the purchase of a firearm. The prosecution
cross-examined Lowery about his limited relationship with Bill, his
following the news of Bill's death on the internet, and his failure to
reveal information about discussing firearms with Bill in his first
two interviews with detectives.
Defendant argues that Bill's statements to Lowery
were admissible under two exceptions to the hearsay rule-state of
mind, N.J.R.E. 803(c)(3), and statements against penal interest, N.J
.R.E. 803(c)(25). She contends that Bill's statements were relevant to
establishing that defendant purchased the gun in Pennsylvania at
Bill's request rather than as part of a plan to murder him.
Under N.J.R.E. 803(c)(3), an out-of-court statement
is admissible if it was “made in good faith of the declarant's then
existing state of mind, emotion, sensation or physical condition (such
as intent, plan, motive, design, mental feeling, pain, or bodily
health).” “Simply stated, the ‘state of mind’ exception to the hearsay
rule allows admission of extrajudicial statements to show the state of
mind of the declarant when it is at issue in a case.” State v.
Benedetto, 120 N.J. 250, 255-56 (1990). “Particularly where the
declarant is deceased, the rule is rooted in necessity and justified
upon the basis that the circumstances provide a rational substitute
for the benefit of cross-examination.” State v. Downey, 206 N.J.Super.
382, 390 (App.Div.1986).
Many years ago in State v. Thornton, 38 N.J. 380
(1962), cert. denied, 374 U.S. 816, 83 S.Ct. 1710, 10 L. Ed.2d 1039
(1963), our Supreme Court stated:
When a person's engagement in a course of conduct
or an act ․ is relevant to the resolution of a controversy over an
occurrence which becomes the subject of subsequent litigation ․
declarations of the person of his present intention or plan to do so,
are competent, substantive, and original evidence of his probable
engagement in the course of conduct or act.
[Id. at 389 (emphasis added).]
Recently in State v. McLaughlin, --- N.J. ----,
---- (2011), the Court stated that “to be admissible under the state
of mind exception to the hearsay rule, the declarant's state of mind
must be ‘in issue.’ “ (Slip op. at 28) (quoting State v. Boratto, 154
N.J.Super. 386, 394 (App.Div.1977), aff'd in part, rev'd in part, 80
N.J. 506 (1979)).
When recommending adoption of this so-called
Hillmon doctrine, see Mut. Life Ins. Co. v. Hillmon, 145 U.S. 285,
294-300, 12 S.Ct. 909, 912-14, 36 L. Ed. 706, 710-12 (1892), the
drafters of N.J.R.E. 803(c)(3) retained in the rule a “good faith”
requirement to provide discretion to trial courts to exclude
out-of-court statements that are unreliable. See Biunno, Current N.J.
Rules of Evidence, 1991 Supreme Court Committee Comment on N.J.R.E.
803(c)(3) (2008) at 773.
Here, Bill's alleged statements may have been an
expression of his then-existing state of mind in January or February
2004 when he spoke to Lowery, but they were not a clear expression of
a “present intention or plan” to have his wife buy a gun, see
Thornton, supra, 38 N.J. at 389, either at that time or later in April
2004 when defendant actually bought a gun. Bill's alleged statements
lacked specificity, and there was insufficient evidence that Bill had
made them to Lowery in “good faith.” We find no abuse of discretion in
the trial court's ruling that the defense did not establish the
reliability of Lowery's proffered testimony, or Bill's present
intention or plan.
Nor did the trial court abuse its discretion in
excluding the proffered testimony as a hearsay exception under
N.J.R.E. 803(c)(25). That rule provides for the admission of an
out-of-court statement for the truth of the matter asserted if “at the
time of its making ․ [the statement] so far tended to subject
declarant to civil or criminal liability, ․ that a reasonable person
in declarant's position would not have made the statement unless the
person believed it to be true.” Ibid. “[S]tatements that so disserve
the declarant are deemed inherently trustworthy and reliable.” State
v. White, 158 N.J. 230, 238 (1999). Whether a statement is in fact
against the declarant's interest must be determined from the
circumstances of each case. State v. Brown, 170 N.J. 138, 149 (2001).
Under 18 U.S.C.A. § 922(g)(1), it is unlawful for
any person who has been convicted of a crime to receive or possess a
firearm or ammunition. Further, under 18 U.S.C.A. § 922(h), it is
unlawful for another to act on that person's behalf to procure a
firearm. Evidence at trial revealed that Bill had been convicted of a
defense argued that Bill's alleged statements to Lowery were against
his penal interests. There was no evidence, however, that Bill
believed his wife's purchasing a gun might subject him to criminal
prosecution or penalties. We find no error in the trial court's ruling
that Bill's alleged statement to Lowery was not “necessarily contrary
to his penal interest” and, therefore, did not meet the requirement of
We also agree with the trial court's assessment
that Lowery's proffered testimony was not particularly probative of
any issue before the jury. First, statements made in casual
conversation to a co-worker months before defendant's purchase of the
Taurus handgun had limited tendency to prove that Bill followed
through and actually asked defendant to buy a gun sometime near April
26, 2004. More important, Bill's alleged desire to have defendant buy
a gun was not inconsistent with her use of the same gun to shoot him.
Even if the original idea came from Bill, that fact did not negate the
prosecution's ballistics evidence identifying the gun defendant bought
with bullets found in Bill's body, or evidence that defendant
concealed her purchase even after Bill's disappearance and the
discovery of his murder.
In sum, we conclude the trial court did not abuse
its discretion in excluding testimony by Lowery about the specifics of
his alleged conversation some two or three months before Bill's death.
Defendant makes several arguments alleging
prosecutorial misconduct. She contends the prosecutors elicited
inadmissible evidence and disregarded the trial court's rulings. She
also contends the prosecutor improperly commented in closing argument
about the absence of evidence that had been excluded by the court and
asked the jury to speculate on matters not supported by the evidence.
“A prosecutor's remarks and actions must at all
times be consistent with his or her duty to ensure that justice is
achieved.” State v. Williams, 113 N.J. 393, 447-48 (1988). It is as
much a prosecutor's duty to refrain from improper methods calculated
to produce a wrongful conviction as it is to use every legitimate
means to bring about a just one. State v. Ramseur, 106 N.J. 123, 320
(1987). But “[p]rosecutorial misconduct is not ground for reversal of
a criminal conviction unless the conduct was so egregious that it
deprived defendant of a fair trial.” Id. at 322.
In determining whether a conviction should be
reversed, the reviewing court must consider whether defense counsel
made a timely objection. State v. Smith, 167 N.J. 158, 181-82 (2001);
Ramseur, supra, 106 N.J. at 322-23. If no objection was made, remarks
usually will not be deemed prejudicial. Ramseur, supra, 106 N.J. at
323. Defendant must show plain error to be entitled to a new trial.
State v. Feal, 194 N.J. 293, 312 (2008). There must be “ ‘a reasonable
doubt as to whether the error led the jury to a result that it
otherwise might not have reached.’ “ Ibid. (quoting State v. Daniels,
182 N.J. 80, 102 (2004)).
Here, defendant objected to some of the
prosecutor's questioning of witnesses but did not raise any objection
to the summation comments now alleged to be grounds for reversal of
her conviction. Having reviewed the entire record of the trial, we
find no prejudicial error in the prosecutors' conduct at trial.
Defendant complains that a prosecutor elicited
inflammatory testimony from Dr. Miller concerning his affair with
defendant. The trial transcript shows, however, that the prosecutor
asked a few questions to establish the nature of the extra-marital
relationship as relevant to defendant's motive to kill her husband.
“In criminal prosecutions, whenever the motive or the intent of the
accused is important and material, a somewhat wider range of evidence
is permitted in showing such motive or intent than is allowed in the
support of other issues.” State v. Rogers, 19 N.J. 218, 228 (1955).
Defense counsel did not object to the questions about the
extra-marital affair, and the defense itself later pursued
cross-examination testimony from Miller that he continued to be
intimate with defendant after he had cooperated with the police and
agreed to record telephone conversations with her.
Additionally, the prosecutor told the jury in her
opening statement that defendant was not on trial for engaging in an
extra-marital affair. She repeated the same admonition in her closing
argument. In its final instructions to the jury, which the jury also
received in writing, the trial court reinforced the limited purpose of
any testimony about problems in defendant's marriage. The court said
that such evidence could only be considered if the jury believed it
demonstrated defendant's state of mind as relevant to a motive; it
could not be used to show that defendant was a bad person and
therefore committed the crimes charged in the indictment. We find no
error in the questioning of Miller about his personal relationship
Next, defendant complains that the prosecutor
improperly elicited expert handwriting testimony from lay witness
Tamar Joffee, the office manager of the Weichert Realty office in
Franklin Lakes. After showing Joffee the handwritten label on the
Federal Express package, the prosecutor asked “is that Cindy Ligosh's
handwriting?” When Joffee said it was not, the court itself initiated
a sidebar conference and eventually ruled that Joffee was not
qualified to provide an opinion about the handwriting. The court
struck Joffee's answer and instructed the jury to disregard it because
Joffee had “freely admitted she's not a handwriting expert.” The
court's ruling and instruction corrected any prejudice from the brief,
opinion testimony. See State v. Manley, 54 N.J. 259, 271 (1969) (jury
is assumed to have followed the court's limiting instruction).
Moreover, defendant was not convicted of the charges in the second
indictment related to the Federal Express package.
Defendant also complains about the prosecutor's
cross-examination of defense private investigator Jay Salpeter on the
subject of gambling and EZ pass records related to Atlantic City. We
have found no error in the manner or form of cross-examination. The
prosecutor did not seek to elicit evidence that had been ruled
inadmissible. See State v. Rose, 112 N.J. 454, 517 (1988).
Nor did she continue to ask questions after the
court ordered the line of questioning to stop. See State v. Hinds, 278
N.J.Super. 1, 17-18 (App.Div.1994), reversed on other grounds, 143
N.J. 540 (1996). The trial court in effect ordered the prosecutor not
to ask certain leading questions on cross-examination of Salpeter,
despite the provisions of N.J.R.E. 611(c) to the contrary, even after
the prosecutor represented that she had a good faith basis for the
facts included in those questions. The prosecutor attempted to ask the
questions in a form that the court deemed appropriate. There was no
prosecutorial misconduct. In fact, the defense received a more
favorable ruling than the rules of evidence and the circumstances
We have considered defendant's other claims of
prosecutorial misconduct in the questioning of witnesses and reject
them without further discussion in a written opinion. R. 2:11-3(e)(2).
Regarding the prosecutor's summation, defendant
asserts improper and unfair argument highlighting the absence of
defense evidence that the court had ruled inadmissible and asking the
jury to speculate about facts outside the record.
“[P]rosecutors in criminal cases are expected to
make vigorous and forceful closing arguments to juries.” State v.
Frost, 158 N.J. 76, 82 (1999). “[P]rosecuting attorneys, within
reasonable limitations, are afforded considerable leeway in making
opening statements and summations.” State v. DiFrisco, 137 N .J. 434,
474 (1994). But a prosecutor's latitude is not unfettered. Williams,
supra, 113 N.J. at 447. The prosecutor is granted wide latitude to
make “fair comment” on the evidence so long as he or she stays within
legitimate inferences that can be deduced from the evidence. See State
v. Mayberry, 52 N.J. 413, 437 (1968), cert. denied, 393 U.S. 1043, 89
S.Ct. 673, 21 L. Ed.2d 593 (1969).
In this case, defense counsel did not object to any
of the prosecutor's closing remarks now challenged on appeal.
Therefore, the plain error standard of review applies. R. 2:10-2;
State v. Papasavvas, 163 N.J. 565, 626, corrected by 164 N.J. 553
(2000). The alleged error must have been of sufficient magnitude to
raise a reasonable doubt as to whether it led the jury to a result it
would otherwise not have reached. Feal, supra, 194 N.J. at 312.
In taped conversations with Miller and Finn,
defendant said she bought a handgun because Bill had asked her to do
so. She said he was a convicted felon who could not get a permit to
buy a gun himself. As previously discussed, the trial court excluded
proffered testimony from George Lowery that Bill had told him he could
not get a permit and would instead ask his wife to buy a gun. Before
the jury, Lowery was permitted to testify only that, two or three
months before Bill died, he had discussed with Lowery the purchase of
During his summation, defense counsel argued as
follows regarding Lowery's testimony:
[I]n April of 2004, Bill McGuire was talking about
the purchase of a gun, undisputed. Well, the State will dispute it,
but a co-worker of his, George Lowery came in here and said he told
them, he told law enforcement [in] October of 2005 that Bill McGuire
and he had a conversation about the purchase of a gun, and they never
reached out to him again․ They wanted nothing to do with this guy,
because that also corroborates everything Melanie McGuire has been
saying on these tapes they have been listening to about Bill wanted a
gun and he couldn't get one because he was a convicted felon and she
had to buy one for him. It corroborates everything she said, so they
attack this guy․
The prosecutor made the following response in her
Let me mention something else that was raised
yesterday regarding the gun.
You heard from Mr. Lowery on the defense case who
told you, and this is in the transcript, he had a conversation with
Bill about purchasing a gun, but there is no evidence before you or
during this trial that Bill wanted to purchase a gun.
Look at the question and look how it's worded․ I
wouldn't put much stance [sic] on what Mr. Lowery said; but even so,
what he said was there was a conversation with Bill McGuire about
purchasing a gun. Not, not that Bill McGuire wanted to purchase a gun,
and that's a very, very distinct and important difference.
There is no evidence before you except for what the
defendant says herself as an excuse that Bill McGuire wanted that gun.
Defendant neither objected nor asked for a curative
instruction to address the prosecutor's remarks. For the first time on
appeal, defendant argues plain error, citing cases including State v.
Ross, 249 N.J.Super. 246, 247 (App.Div.), certif. denied, 126 N.J. 389
In Ross, the defendant was charged with aggravated
sexual assault of a ten-year-old girl. To refute the State's
anticipated argument that a child that age could not have the sexual
knowledge she displayed if an assault had not occurred, the defendant
sought to present evidence that the child had twice before claimed to
have been assaulted by adult male relatives. Id. at 248-49. The trial
court excluded that evidence under the Rape Shield Law, N.J.S.A.
2C:14-7. 249 N.J.Super. at 248-49. In summation, the prosecutor made
the anticipated argument, that a ten-year-old child could not have
fabricated the incident with the defendant because she would not have
the requisite detailed knowledge of the sexual conduct. Id. at 249-50.
We reversed defendant's conviction, stating:
Obviously the prosecutor was aware that the child's
claims of prior sexual victimization ․ provided her with a degree of
knowledge potentially belying her alleged naivete. For the prosecutor
to have made that argument knowing it to be at least arguably contrary
to facts which defendant was precluded from adducing was improper,
unfair, and, in view of the paramountcy of the credibility issue,
irremediably prejudicial. On that basis alone, defendant is entitled
to a new trial.
[Id. at 250.]
As in Ross, prosecutorial misconduct has been found
in other cases where prosecutors made arguments clearly contrary to
information that was excluded from evidence. See State v. Sexton, 311
N.J.Super. 70, 80-81 (App.Div.1998) (error in prosecutor's summation
argument that the homicide weapon belonged to the defendant with
knowledge of excluded evidence that the gun was registered to another
person), aff'd, 160 N.J. 93 (1999); United States v. Toney, 599 F.2d
787, 788-91 (6th Cir.1979) (error in prosecutor's argument that the
defendant charged with robbery produced no evidence to support a claim
he had won “bait bills” in a dice game after the trial court had
erroneously excluded on hearsay grounds another person's statement to
the same effect).
In this case, the State contends that the
prosecutor's quoted remarks were fair comment because of
misrepresentations in defense counsel's closing argument. A
prosecutor's otherwise prejudicial arguments may be deemed harmless if
made in response to defense arguments. See State v. Munoz, 340
N.J.Super. 204, 216 (App.Div.), certif. denied, 169 N.J. 610 (2001);
State v. C.H., 264 N.J.Super. 112, 135 (App.Div.), certif. denied, 134
N.J. 479 (1993). It is true that defense counsel misrepresented the
time when Lowery's conversation with Bill had occurred, and his
remarks exaggerated that Lowery's testimony corroborated “everything”
defendant had said about a gun. But defense counsel did not
misrepresent the actual content of Lowery's testimony. The
prosecutor's response exceeded the scope of inaccuracies in defense
Nevertheless, unlike the cases cited in which
prosecutorial misconduct was found and the defendant's conviction was
reversed, Lowery's proposed testimony was properly found by the trial
judge to be both inadmissible and unreliable. Strictly speaking, there
was no reliable evidence in this case that Bill had wanted defendant
to buy a gun for him. In that sense, the prosecutor's comments are
distinguishable from the unfair arguments we found in Ross, supra, 249
N.J.Super. at 250, and Sexton, supra, 311 N.J.Super. at 80-81.
Furthermore, the prosecutor's remarks were harmless
in the context of the entire summation and all the evidence at trial.
See Jenewicz, supra, 193 N.J. at 472; State v. Marshall, 123 N.J. 1,
152 (1991); State v. Tirone, 64 N.J. 222, 229 (1974). There must be
“some degree of possibility that [the errors] led to an unjust
result.” State v. R.B., 183 N.J. 308, 330 (2005). “The possibility
must be real, one sufficient to raise a reasonable doubt as to whether
[the errors] led the jury to a result it otherwise might not have
reached .” State v. Bankston, 63 N.J. 263, 273 (1973).
Here, the prosecutor's lengthy summation thoroughly
and meticulously covered the mass of circumstantial and forensic
evidence. Moreover, as previously discussed, whether Bill had wanted
defendant to buy a gun did not refute evidence that defendant had used
that gun to kill him. In view of all the evidence we have recited, the
challenged remarks do not raise “a reasonable doubt as to whether the
error led the jury to a result that it otherwise might not have
reached.” Daniels, supra, 182 N.J. at 102.
We conclude there was no plain error in the
prosecutor's quoted summation remarks.
Next, defendant contends that the prosecutor's
summation contained a number of improper, speculative arguments
outside the scope of evidence admitted for the jury's consideration.
She complains that the prosecutor improperly argued that the absence
of trace evidence in the Woodbridge apartment showed defendant's
extraordinary efforts to conceal evidence of the crimes, that drop
cloths may have been used to prevent blood or other body tissue from
spilling in the apartment, that defendant or an accomplice could have
used a towel to muffle the sound of a reciprocating saw when cutting
the body, and that ice or refrigeration may have been used to preserve
parts of the body.
A prosecutor may not invite the jury to speculate
about facts not in evidence. Frost, supra, 158 N.J. at 86. While a
prosecutor may present to the jury the State's theory of the case, the
presentation will constitute prosecutorial misconduct if it draws
unreasonable inferences from the evidence adduced at trial.
Papasavvas, supra, 163 N.J. at 616.
In its closing argument, the defense had emphasized
the absence in the apartment of trace evidence of blood, tissue, or
DNA, the absence of bullet holes or saw marks, and the absence of
testimony from neighbors about gunshots or the sounds of a power saw.
The defense argued the lack of such evidence showed that the murder
and desecration of the body could not have occurred in the Woodbridge
In response, the prosecutor argued the State did
not have to prove specifically where the crimes were committed, but
the cutting of the body and the draining of blood may have occurred in
the shower stall of the master bathroom. Based on testimony by an
expert anthropologist about the cuts in the body, the prosecutor
argued that defendant or her accomplice could have positioned the body
to avoid leaving saw marks in the shower stall. The prosecutor also
argued that drop cloths may have been used to avoid spilling blood or
tissue and that the bathroom and the rest of the apartment had been
scrubbed unusually clean and freshly painted by defendant and helpers,
not by the landlord, before the first police search was conducted in
Lesniak had testified he found no trace evidence
providing anyone's DNA in the apartment despite several thorough
searches. Another witness had testified of an unusual smell of bleach
and cleanser in the master bathroom. The prosecutor also made use of
testimony by defense witnesses and others that defendant was an
efficient, hard-working nurse at her place of employment. The
prosecutor argued that the absence of even the McGuire family's own
DNA in the apartment demonstrated unusual efforts to clean the
apartment and eliminate evidence. These arguments were based on
reasonable inferences drawn from the evidence produced at trial.
Furthermore, the reference to drop cloths was tied to expert testimony
that chips of paint and PVC pipe material had been found in the
suitcases along with Bill's body.
The prosecutor may have treaded close to the line
of permissible inferences when she argued that sounds of a
reciprocating saw may have been muffled with a towel. There was no
evidential support for that argument, but it was made immediately
after the prosecutor argued that the polyester fiber evidence found on
one of the bullets recovered from Bill's body suggested the killer had
used a pillow to muffle the sound of gunfire. Also, the next-door
neighbor had testified she and her family were not in their apartment
much of the daytime during the relevant time period. The prosecutor's
brief remark about muffling the sound of a reciprocating saw was not
so egregious that it deprived defendant of a fair trial.
The defense had also argued that the condition of
Bill's lower legs, recovered in the Chesapeake Bay on May 5, 2004,
were contrary to the prosecution's theory that he had been murdered in
the last days of April. The defense cited the testimony of the
Virginia medical examiner that the lower legs looked “fresh,”
consistent with the condition of a body that had been dead only one
day in a cool, dry environment. To explain why Bill's legs looked
fresh, the prosecutor argued that defendant and her accomplice could
have used ice to refrigerate the body in the shower stall or
elsewhere. Again, no evidence had been presented at trial to suggest
that defendant procured quantities of ice near the time of Bill's
disappearance. Nor did the medical examiner testify that the legs had
been refrigerated or exposed to ice.
The prosecutor's argument in that regard was
improper speculation. See Williams, supra, 113 N.J. at 447 (“a lawyer
shall not: [s]tate or allude to any matter ․ not ․ supported by
admissible evidence”) (quoting Model Code of Professional
Responsibility DR7-106(c) (1979)). Had defense counsel made an
objection, the trial judge could have stricken the argument and
instructed the jury to disregard it. See id. at 452. It is important
to note, however, that the prosecutor did not ask the jury to
speculate about matters extraneous to the relevant facts, such as the
arguments determined to be prejudicial in Frost, supra, 158 N.J. at
85-87 (that a police officer's career would be jeopardized if he lied
in his testimony). We conclude the objectionable remarks did not
“substantially prejudice[ ] defendant's fundamental right to have a
jury fairly evaluate the merits of [her] defense.” State v.
Timmendequas, 161 N.J. 515, 575 (1999); see also State v. Koskovich,
168 N.J. 448, 488-89 (2001) (prosecutor's single reference in
summation that there could have been yet another homicide victim was
error but not reversible prosecutorial misconduct).
The prosecutor also overstepped the bounds of
reasonable inferences from the evidence when she responded to defense
arguments about the suspicious internet searches. Defendant had
presented the testimony of her own computer expert, Jesse Lindmar, who
had downloaded the entire hard drive of the McGuires' personal
computer. Lindmar testified that some of the suspicious Google
searches were made near times of visits to sites related to Bill's
work or interests. He acknowledged on cross-examination, however, that
he had not reviewed the hard drive for proximity of suspicious
searches to sites associated with defendant's interests.
In responding to defense arguments that Bill was
the person who engaged in the suspicious Google searches, the
prosecutor argued that Bill was a computer technician who would have
known how to erase suspicious search topics completely from the
computer hard drive. No evidence was presented, however, that Bill had
such knowledge, skills, or motivation.
These isolated arguments of the prosecutor asked
the jury to speculate beyond the evidence, but
not every departure from the facts and reasonable
inferences necessarily calls for a reversal, and “on the question
whether the improper comment shall have that effect, the making by
trial counsel of a timely and proper objection and the action of the
trial judge in connection therewith are ordinarily controlling
[State v. Wilson, 57 N.J. 39, 50-51 (1970) (quoting
State v. Vaszorich, 13 N.J. 99, 119 (1953)).]
A timely objection in this case could have cured
any potential harm caused by speculative remarks. See State v.
Koedatich, 112 N.J. 225, 322-23 (1988), cert. denied, 488 U.S. 1017,
109 S.Ct. 813, 102 L. Ed.2d 803 (1989). Absence of contemporaneous
objection may lead to a fair inference that “in the context of the
trial the error was actually of no moment.” State v. Nelson, 173 N.J.
417, 471 (2002) (quoting Macon, supra, 57 N.J. at 333).7
For a conviction to be reversed, the challenged
comment “must have been clearly and unmistakably improper, and must
have substantially prejudiced defendant's fundamental right to have a
jury fairly evaluate the merits of his defense.” Timmendequas, supra,
161 N.J. at 575. Although a few of the prosecutor's arguments ranged
beyond the strict confines of the evidence, those arguments were brief
and isolated. Viewed in the context of the State's entire closing
argument and all the evidence reviewed with the jury, the few
objectionable remarks did not have the capacity to influence the
jury's verdict. Defendant was not deprived of a fair trial. See
Koskovich, supra, 168 N.J. at 488. We find no plain error in the
Defendant argues that extensive media coverage of
the trial, including its live broadcast on Court TV, infected the
judicial process and exposed jurors to inflammatory material
extraneous to the admissible evidence.
Near the end of the trial, the court excused Juror
Number 14 because of flooding at her home. After deliberations began
by twelve other jurors, the court clerk found a note in the jury room
that Juror 14 had written. The note said in full:
I cannot believe I am not there to see this through
with all of you. I feel a little disappointed, although I can't say
I'm not relieved as well. I had prayed on Sunday for help with the
awesome task ahead of me this week and he sent wind and rain and I was
excused. Careful what you pray for, right?
I am praying for all of you today, that you will
have the wisdom to do what is right.
I have to tell you I spent all day yesterday
reading blogs and watching closing arguments. It was so tempting to
blog back, but I did not.
Linda-I am the one w/ hard eyes J and I intrigue
the bloggers. They talk about us, but nothing terrible.
Deb & Rafik-you must feel some relieve [sic] today
too. Deb, if you get a moment (like you won't have all day) call me.
Good luck to you all. You are in my thoughts.
The following morning, the trial judge reached
Juror 14 by telephone and questioned her on the record and in the
presence of counsel. The excused juror said she had left the note on
the windshield of Juror 5's car. Her purpose was to express support
for her fellow jurors. Regarding the meaning she intended by her
advice to “do what is right,” Juror 14 said she was a religious person
who prayed for help in making the right decision, but she did not know
what the right decision was in this case. She also said she never
discussed her views about a verdict with the other jurors. Asked what
she meant by the comment about “hard eyes,” Juror 14 said one of the
jurors had been told about an internet blog referring to a juror with
hard eyes, and the jurors had attempted to guess who that juror was.9
Juror 14 could recall no other discussions of material from the
internet or news media.
The judge then interviewed all twelve deliberating
jurors individually, in his chambers but on the record. The attorneys
were given free rein to question the jurors, provided they did not
inquire about the course of the jury's deliberations. All the jurors
had seen or heard the contents of the note from Juror 14. All the
jurors said they did not interpret the note as urging them to reach a
verdict either way, and Juror 14 had not expressed her opinion of the
outcome before being excused. Questioned closely, the jurors all said
the note had not and would not influence their decision.
At first, the judge was hesitant to ask jurors
specifically what they understood to be the meaning of “do what is
right,” fearing that the question might elicit information about the
jury's deliberations. Beginning with Juror 4, however, the judge asked
each juror what that phrase meant and if it related to any prior
conversations with Juror 14. Invariably, the jurors answered that the
phrase simply meant the jury should strive to make a correct decision.
The earlier answers of Jurors 1 through 3 were consistent with that
Regarding the “hard eyes” comment, several jurors
said they did not know what it meant. Juror 3 readily revealed that
her sister had told her about the “hard eyes” description in a blog,
and Juror 3 had mentioned the reference to other jurors. Some of the
jurors recalled such a conversation. Several jurors said they had a
general curiosity about how the media was describing the jurors. One
juror was aware of a court blogger “who sits in the benches and
depicts who everyone is.” A few jurors were concerned that their names
and addresses were being publicized.10
The jurors explained that their interest in how they were perceived
came up as part of an “overall discussion,” and there was never a
single juror or source passing along information about Court TV
coverage of the trial or internet postings.
All the jurors denied obtaining factual information
about the case from any outside source. They distinguished the
comments and discussions about themselves from evidence about the
crimes alleged and their task of evaluating that evidence. All stated
they could continue to deliberate impartially and were not influenced
in their decisions by concerns about media or internet coverage of
them as jurors.
Based on these individual juror interviews, the
judge concluded that the jury had not knowingly violated the court's
instructions to avoid exposure to media reports of the trial. He
concluded further that Juror 14's note was an insignificant, casual
communication that would not affect the jury's deliberations. The
judge was convinced by the assurances of each juror “that they can
follow the law and attempt to reach a verdict based solely on the
evidence and the law.”
Before the jurors resumed their deliberations, the
judge instructed them again about avoiding communications from
outside, including those about themselves. The jury then resumed
deliberations and returned its verdicts at the end of the following
“Under the Sixth Amendment of the United States
Constitution and Art. I, par. 10 of the New Jersey Constitution,
criminal defendants are ․ entitled to a jury that is free of outside
influences and will decide the case according to the evidence and
arguments presented in court in the course of the criminal trial
itself.” State v. Williams, 93 N.J. 39, 60 (1983). “Securing and
preserving an impartial jury goes to the very essence of a fair
trial.” State v. Bey, 112 N.J. 45, 75 (1988).
When jurors have been exposed to extraneous
information, the court must act swiftly to investigate and to
determine whether the jurors are capable of fulfilling their duty in
an impartial and unbiased manner. State v. R.D., 169 N.J. 551, 557-58
(2001). In State v. Scherzer, 301 N.J.Super. 363, 487-88 (App.Div .),
certif. denied, 151 N.J. 466 (1997), we said that “the trial judge
must make a probing inquiry into the possible prejudice caused by any
jury irregularity, relying on his or her own objective evaluation of
the potential for prejudice rather than on the jurors' subjective
evaluation of their own impartiality.”
Once a hearing is conducted, “[a] new trial will be
granted where jury misconduct or intrusion of irregular influences
into the jury deliberation ‘could have a tendency to influence the
jury in arriving at its verdict in a manner inconsistent with the
legal proofs and the court's charge.’ “ State v. Grant, 254 N.J.Super.
571, 583 (App.Div.1992) (quoting Panko v. Flintkote Co., 7 N.J. 55, 61
(1951)); accord State v. Wormley, 305 N.J.Super. 57, 69
(App.Div.1997), certif. denied, 154 N.J . 607 (1998); see also State
v. Hightower, 146 N.J. 239, 266-67 (1996) (the same standard governs
motions for a mistrial and for a new trial).
“A new trial, however, is not necessary in every
instance where it appears an individual juror has been exposed to
outside influence .” R.D., supra, 169 N.J. at 559. As the United
States Supreme Court has said, “it is virtually impossible to shield
jurors from every contact or influence that might theoretically affect
their vote.” Smith v. Phillips, 455 U.S. 209, 217, 102 S.Ct. 940, 946,
71 L. Ed.2d 78, 86 (1982). “Due process means a jury capable and
willing to decide the case solely on the evidence before it, and a
trial judge ever watchful to prevent prejudicial occurrences and to
determine the effect of such occurrences when they happen.” Ibid. Both
were present in this case.
The trial court applied the correct standard and
burden of proof in determining whether extraneous information had a
capacity to influence the jury's verdict. The evidence developed
through the court's careful voir dire of the jurors affirmatively
established that exposure to extrinsic blogger information had not and
would not affect their decision. See Wormley, supra, 305 N.J.Super. at
69; Grant, supra, 254 N.J.Super. at 580-84, 588.
Defendant argues that “[f]or a former juror who had
spent all day checking public opinion to urge the other jurors to ‘do
what is right’ by itself creates an incalculable risk of prejudice.”
We disagree. The cases cited by defendant have found error in a
prosecutor's exhortations to the jury “to do the right thing” or “send
a message to the community.” See, e.g., State v. Neal, 361 N.J.Super.
522, 537 (App.Div.2003); State v. Acker, 265 N.J.Super. 351, 356-57
(App.Div.), certif. denied, 134 N.J. 485 (1993); State v. Lockett, 249
N.J.Super. 428, 434-35 (App.Div.), certif. denied, 127 N.J. 553
(1991). The prosecutor's position on what is the right result is
well-known to the jurors, and his or her urging jurors with such words
implies reasons beyond the evidence for a guilty verdict. In this
case, the prosecutor made no such plea to the jury.
The note from Juror 14 was mostly an innocuous
expression of goodbye and good luck. The statement “I am praying for
all of you today, that you will have the wisdom to do what is right”
was neutral on its face. It did not urge a particular result,
especially because Juror 14 had not expressed an opinion about the
outcome of the trial. Furthermore, no deliberating juror gave a hint
of being influenced by Juror 14's note.
The jury conduct in this case had much less
potential for taint than that in Scherzer, supra, 301 N.J.Super. 363,
where we concluded that the trial judge had properly addressed the
issues and removed potential for prejudice. Id. at 496. In that case,
the defendant alleged many instances of juror misconduct, including
comments by jurors' co-workers that the defendants should hang. We
stated that the extraneous communications did not “raise[ ] the
specter of corruption, intimidation, and coercion.” Id. at 492. “[A]ny
presumption of prejudice was rebutted [by] the judge's thorough
inquiry into the outside communication [and] his objective evaluation
that prejudice was not established.” Ibid.
Defendant argues that the jurors' preoccupation
with how they were being portrayed in the media had the capacity to
taint their verdict. But there is no evidence that the jurors'
concerns affected their impartiality. Communications concerning public
perceptions of the jury did not implicate evidentiary or proof issues
at trial. That the jury knew a blogger was in the courtroom, or that a
blog had made reference to the “hard eyes” demeanor of a juror, do not
suggest any particular verdict.
There was also no evidence that any juror was
personally active on the internet regarding the case while serving as
a juror. The judge questioned the jurors thoroughly and determined
that the information concerning the internet postings was passed on to
the jury second-hand. Each of the jurors denied accessing the internet
personally; each denied reading any blogs or message boards. The judge
observed the jurors' responses and demeanor, and he accepted their
credibility. Furthermore, the jurors' assurances were implicitly
confirmed by Juror 14's note.
Our Supreme Court has stated:
[T]he trial court is in the best position to
determine whether the jury has been tainted. That determination
requires the trial court to consider the gravity of the extraneous
information in relation to the case, the demeanor and credibility of
the juror or jurors who were exposed to the extraneous information,
and the overall impact of the matter on the fairness of the
The abuse of discretion standard of review should
pertain when reviewing such determinations of a trial court.
Application of that standard respects the trial court's unique
[R.D., supra, 169 N.J. at 559.]
We find no abuse of discretion in the trial court's
assessment of potential taint by blogger information or public
perception of the jurors.
Defendant also argues that the trial court failed
to investigate adequately evidence developed after the trial that a
deliberating juror may have posted to Court TV message boards. Defense
counsel discovered blog entries suggesting that a member of the jury
had posted a message during the trial.11
The judge agreed that the matter should be investigated, and the
prosecutor offered to make inquiries. The judge then ruled that there
was no need to re-interview jurors again at that time about the
The prosecutor wrote to Court TV and requested
assistance in locating the alleged post by a member of the jury.
Subsequently, the prosecutor informed the court and defense counsel
that Court TV had conducted a search and found “no record of the
posting and no further information is available.”
We must determine whether “there is a realistic
possibility that information with the capacity to prejudice
defendant's right to a fair trial may have reached members of [the]
jury.” Bey, supra, 112 N.J. at 86 (emphasis added); accord State v.
Loftin, 191 N.J. 172, 194 (2007). The “realistic possibility” has also
been described as a reasonable belief by the court that the jury was
exposed to prejudicial information. Bey, supra, 112 N.J. at 86.
Here, the blogger evidence amounted to double
hearsay. The messages we have quoted in footnote 11 suggest little
likelihood that a member of the jury wrote the message referenced by
other bloggers but never actually discovered. Weighed against that
information were the statements of jurors that they had no direct
exposure to internet blogs.
Our review of the record discloses neither legal
error in the procedures or standards applied by the trial court, nor
abuse of discretion in its decision that exposure of jurors to
extraneous information did not warrant a new trial.
Finally, defendant challenges her sentence of life
imprisonment plus five years. Our review of a sentencing decision can
involve three types of issues: (1) whether guidelines for sentencing
established by the Legislature or by the courts were violated; (2)
whether the aggravating and mitigating factors found by the sentencing
court were based on competent credible evidence in the record; and (3)
whether the sentence was nevertheless “clearly unreasonable so as to
shock the judicial conscience.” State v. Roth, 95 N.J. 334, 364-66
(1984); accord State v. Carey, 168 N.J. 413, 430 (2001). We do not
substitute our judgment regarding an appropriate sentence for that of
the trial court. Roth, supra, 95 N.J. at 365.
Defendant argues that the trial judge improperly
evaluated aggravating and mitigating factors. We reject without
discussion defendant's contention that the court erroneously failed to
find mitigating factor eleven, N.J.S.A. 2C:44-1b(11), the imprisonment
of defendant would entail excessive hardship to her or her dependents.
Defendant also argues that the court improperly
considered aggravating factor one, N.J.S.A. 2C:44-1a(1), the nature
and circumstances of the offense including whether it was committed in
an especially heinous, cruel, or depraved manner. Defendant contends
that the trial court's finding of that factor was improperly based on
conduct that occurred after the murder had been committed and on her
defense strategy at trial.
In referencing desecration of the body as relevant
to its finding of aggravating factor one, the court also determined
not to impose a consecutive term of imprisonment for that separate
crime. Moreover, the court found aggravating factor one based on the
entirety of defendant's premeditated murder and cover-up of the
crimes, not just desecration of the body. The court stated:
The nature and the complexity and the scope of this
criminal episode involved many, many overt actions committed over a
three-week period spanning four different states and reflected a
willfulness and a malice that goes far beyond the elements of the
crime of murder in our law.
The desecration of William McGuire's remains was
particularly heinous and depraved. His body was treated as trash. It
was cut and sawed apart and then packaged in garbage bags. His remains
were left to decompose in the waters of another state without
identification so that his family and friends might always be deprived
of a dignified funeral service and burial.
The depravity of the murder was further manifested
by the efforts on the part of the defendant to portray William McGuire
as an abusive husband and a chronic gambler who was indebted to
organized crime figures as part of her attempt to shift the blame for
his murder to others․ [D]uring the course of the trial there was
simply no credible evidence to suggest that this characterization of
Mr. McGuire was in any way accurate. But perhaps most tragically the
murder of William McGuire and the attack on his character has surely
caused grave harm to his children. They must now grow up without a
mother or father and their memories of both will be distorted and
confused by the web of deception created by the defendant.
The depravity of this murder simply shocks the
conscience of the court.
The reference to defendant's negative portrayal of
Bill did not mean arguments made by counsel in defense of the
indictment; it meant defendant's words and conduct in the days and
months after Bill disappeared and before she had been charged.
Because of the level of premeditation, planning,
and concealment demonstrated by the evidence, the court viewed the
entirety of defendant's actions as a continuous episode of purposeful,
depraved, and cruel conduct. The court observed that the crimes were
the result of a cold, calculated plan carried out with shocking
attention to detail and callous disregard for the life of a human
being and for the welfare of defendant's own children.
Trial judges are given wide discretion in imposing
sentence. State v. Bieniek, 200 N.J. 601, 607-08 (2010). Our standard
of review is “one of great deference and ‘judges who exercise
discretion and comply with the principles of sentencing remain free
from the fear of second guessing.’ “ State v. Dalziel, 182 N.J. 494,
501 (2005) (quoting State v. Megargel, 143 N.J. 484, 494 (1996)).
The trial court did not abuse its discretion in
finding aggravating factor one as explained by the trial judge.
1. A tape
recording of defendant's testimony before the Middlesex County judge
was admitted in evidence and played for the jury. This testimony was
the basis for defendant's conviction on a charge of perjury.
toxicology examination did not reveal chloral hydrate, but there was
no specific attempt to find that drug. According to the Virginia
medical examiner, a normal toxicology examination seeks evidence of
more common substances, such as alcohol, cocaine, and opiates. By the
time the prescription of chloral hydrate was found in Bill's car, it
was too late to examine Bill's body again or preserved blood samples
for evidence of that drug.
whether Dr. Miller could have been defendant's accomplice, the
prosecution presented testimony and records from the Morristown
medical practice showing that he was on duty for long hours and saw
many patients during the days from April 28 to May 2, 2004. In
addition, an alibi-type witness testified that she and her husband
were visiting from out of state and stayed with Dr. Miller and his
wife during that time period.
handwritten notes said:Set Her Up1-Deny that we know about firearm or
that he made her get one.2-Deny that he used to move her car when they
fought sometimes.3-Call prosecutors ․ re, Mafia allegations to
implicate her family.DYFS-Adoption yields stipend for adoption through
division.4-Secondary beneficiary on his state life insurance.5-Have
kids say they saw her do it or dispose of the body.․Final StagesBring
bullets if no need to plant at her dad's.Indictment.Termination of her
parental rights.Public statement against prosecution if no indictment
of her family.Speak to publisher ․ re, story rights.Estate for
boys.Taunt her with not seeing kids and we are their parents.
previously stated, defendant was acquitted of the charges arising from
the anonymous communications.
to its ruling on Marcie Paulk's proposed testimony, the trial court
rejected the prosecution's attempts to present evidence before the
jury of the circumstances of Bill's conviction-that it was for a
non-violent third-degree crime committed in Virginia many years
claims that the trial judge discouraged objections during closing
arguments. To preserve a proper record, a trial judge should not
admonish counsel against making appropriate objections, but the record
in this case does not contain any such prohibition. Even if
defendant's claim is accurate, defense counsel also did not raise
objections or ask for curative instructions at the end of the
prosecutor's summation. The absence of objections was undoubtedly not
due to the defense team's timidity or inattention. Experienced counsel
raised many objections and argued in many sidebar conferences during
the trial, and they prevailed on numerous rulings of the trial court.
As an example of counsel's vigorous and diligent defense efforts,
counsel presented a long list of objections and points of error at the
end of the court's final instructions to the jury.
reject without discussion defendant's argument that the prosecutor's
opening statement was prejudicial because it incorrectly told the jury
ballistics evidence would prove that the “make and model” of the
murder weapon was the same as the gun purchased by defendant. R.
the trial, defense counsel discovered a blog written on March 29,
2007, stating: “There is a female juror who has very hard eyes. She
cuts them much like MM [defendant] does. This morning she is staring
at MM. I have been really looking at her, she intrigues me.”
judge appropriately allayed the jurors' concerns during the voir dire.
to the defense, on April 20, 2007, which was during deliberations, the
following message appeared on the Court TV message boards:Now, as to
the questioning the jurors, you kno [sic] that earlier today on
another thread there was a person posting who was probably joking but
implying that they were a juror. The thread was titled something like
“to all the jurors reading this” ․ I am sure it was a joke. That
thread is gone now.This post generated further comments. Another
blogger wrote:I read the thread earlier․ It was titled something like
“To all the jurors who are reading this ․“ then the post said
something like, wait to make a decision on Monday because I have to
work today ․ There were a few laughs and a few skip work responses ․
nothing really to try to influence a jury. So, I don't think the issue
with the court is about the thread here.Later, yet another blogger
wrote:It was here last night. Somebody posted “to all the jurors
illegally reading this board” please come back with the verdict on
Friday etc. etc. Somebody with very few posts responded back something
like “ok, and we are leaning toward guilty.”