Andrew C. Carey County Prosecutor MIDDLESEX COUNTY PROSECUTOR'S OT'F'ICE 25 Kirkpatrick Street,3'd Floor Z0l5 I ': 2l .1 !3, tl New Brunswic! NJ 08901 132-145-3300 prosecutor@co.middesex.nj.us-' -" , . Christopher L. C. Kuberiet j'' A ssisrant Prosecutor ,,' ,...-..1 Gerard P. McAleer Deputy l'' Assistants Chief o/ Comtv Detectives Christie L. Ber.acqua BriaD D. Gillet August 27,2015 Honorable Dennis V. Nieves, J.S.C. Middlesex County Courthouse 1 J.F.K. Square New Brunswick, NJ 08901 Re: State v. Michele Lodzirski Prosecutor File No. l4-001654 Indictment No. 1 4-08-0087 I Dear Judge Nieves: Please accept this letter in lieu ofa more formal brief in opposition to defendant's motion to dismiss the indictnent and motion to suppress statements of defendant- STATEMENT OF FACTS AND PROCEDURAL HISTORY The State relies on the statement of facts contained in the State's July 15, 2015 letter filed in support of motions in limine. LEGAL ARGUMENT POINT I A BILL OF PARTICULARS IS NOT WARRANTED IN THIS CASE. Defendant asks caused rinmy's tl s the Court to order a Bill of Particulars to explain ( 1) how defendant death and (2) describe the serious bodily injury defendant inflicted upon Timmy. The State opposes defendant's motion. The statement of facts contained in the State's brief, dated July 15,2015, states with particularity the circumstantial evidence upon which the State will rely to prove defendant murdered Timmy and includes references to relevant investigative reports. Defendant is well aware that the rnedical examiner ruled Timmy's death a homicide and the cause of death undetermined. Defendant has been given every shed of discovery and evidence relevant to Timmy's murder. Defendant has reviewed the discovery moved to dismiss the indictment based on iruufficient evidence in the grand jury. Accordingly, defendant has sufficient information about the State's proofs to prepare a defense. It is clear from the discovery materials, the grand jury presentation as well as the State's motions in limiae that the State is relying on circumstantial evidence, most notably, defendant's nlunerous conflicting statements and recovery of a blalket from defendant's house that was found in close proximity to Timmy's body. The State also relies on the close connection between Timmy's remains which were found in a remote area of the Raritan Center industrial park remarkably close to defendant's former place emplolment. The evidence before the grand jury and the State's statement of facts in the July 15, 2015 brief establish that defendant was the last person seen with Timmy before he disappeared. The grand jury was fi:rther presented with evidence that defendant was under financial strain and was struggling as a single mother of a five year old boy. Defendant's statements demonstrate that she repeatedly lied to Iaw enforcement about Timmy's disappearance even though the police were genuinely trying to help find Timmy. The indictnent, grand jury minutes and statement of facts provided to defendant are suffrciently specific to enable defendant to prepare a defense. For these reasons, a bill of particulars is not necessary. POINT II TI{ERE WAS SUFFICIENT EVIDENCE IN THE GRAND JURY TI{AT DEFENDANT MURDERED TIMMY. In older case law, the grand jury is described as essentially an "inquisitorial, informing and accusing body." Rosettv v. Ham ton To. com., g2 N.J. Super. 340,34g (Law Div. 1964), afPd o.b. 96 N'J. super., 66 (App. Div. r 967). under our system ofjustice, its principal firnction is "to sift accusations of criminal conduct, to advance the public interest by the discovery and indictment ofpersons chargeable with certain crimes and to protect individuals against arbitrary, oppressive and unwarranted criminal accusations." State v. Porro, 152 N.J. 1'79, 184 (App. Div. 1977), app. dism'd 77 N.J. 504 (1978). Or, as more succinctly stated in Porro. the grand charge is "to indict or not jury's indict." 152N.J. Super. at184-185. Our Supreme Court has observed that a grand jury is asked simply to determine whether a basis exists for subjecting the accused to a trial. Statev. Hosan. 144N.J.216,227 (1996). ln making this charging determination, considerable latitude is afforded the grand grand jury. While a jury obviously canaot indict upon mere whim or caprice, it is only required to frnd that a crime has been committed and that the accused should be required to stand trial on the charge. State v. Price. 108 N.J. Super. 272,278-279 (Law 548 (Law Div. 1966), affd o.b.. Div. 1970); State v. Rile-y, 101 N.J. Super. 402 (App. Div.1967), cert. denied. 390 U.S. 969 (1968). ln order to properly retum an indictrnent, the grand g!44 97 N.J. Super. 542, jury must be presented with a facie showing as to each element of the crime charged. State v. Hosan. supra 1zt4 N.J. at 227; Trap Rock Industries v. Kohl, 59 N.J. 471, 487-488 (1971), cert. denied. 405 U.S. 1065 (1972). "Although it is more often described as an inquiry as to whether the State has set forth a prima facie case that a crime has been committed and that the accused has commifted it, the standard goveming a grand jury's decision whether to indict has also been characterized as one of probable cause." In re A.D.,212 N.J . 200,218 (2012). The quantum of evidence required on each element, however, need not be great. State v. Schenkolewski. 301 N.J. Super. 1 15, 137 (App. Div. 1997), certif. denied. 151 N.J. 77 (1997); State v. Bennett. 194 N.J. Super.231,234 (App. Div. 198a). "[G]rand jurors are instructed to consider both the evidence presented by the State and the 'reasonable inferences' from that evidence[.]" A.D., supra, 212 N.J. at 219. Thus, the court's review requires "evaluation of 'the evidence and the rational inferences drawn tom that evidence in the light most favorable to the state' to determine whether 'a grand jury could reasonably believe that a crime occuned and that the defendant committed it., .Ibid. (quoting v. Morrison I 88 N.J. 2, 13 (2006); state v. New Jersev Trade waste Ass'n., 96 N.J. g, 27 (1984); Statev.Graham.284N.J.Super.4t3,4l7(App.Div. 1995),certif.den. 144N.J.378 State (1996). Finally, once an indictnent has been retumed by a grand jury, it is presumed valid. state v. schenkolewski. supra. 301 N.J. super. at 137; state v. Bennett, supra- 194 N.J. Super. at 233. A defendant challenging an indictrnent bears the healy burden of demonstrating that evidence is clearly lacking to support the charge. State v. McCrarv, 97 N.J. 132, 142 (1984); State v. Graham, supra 284 N.J. Super. at 417. Indicfinent applications have traditionally been addressed to the sound discretion of the trial court. State v. Hoean. above at 144N.1.229; State v. Weleck. 10 N.J. 355, 364 (1952). But tial courts have been cautioned that the power to quash an indictrnent is to be exercised on only the "clearest and plainest ground," fState v. Hogan- supra144 N.J. 228; State v. Perry. 124 N.J. 128,168 (1991)l or where the indictment's irsufficiency is palpable. State v. Wein. 80 N.J. 491, 501 (1979); State v. LaFera- 35 N.J. 75, 81 (1961). Dismissal of an indictment is a "last resort because the public interest, the rights of victims and the integrity ofthe criminal justice system are at stake"; these rights strongly suggest that "criminal cases should ordinarily be decided on the.merits after a full and impartial trial." State v. Ruffrn, 371 N.J. Super. 371,384-85 (App. Div. 2004). It is well settled that dismissal of an indictment is a "draconian remedy." Id. at 385. In Point II of defendant's brief, counsel argues that the State did not present a prima facie case of mwder to the grand jury. Pursuant to N.J.S.A. 2C:11-3, murder is defined as follows: Criminal homicide constitutes murder when: (l) The actor purposely causes death or serious bodily injury resulting in death; or (2) The actor knowingly causes death or serious bodily injury resulting in death. Defendant argues that the indictrnent should be dismissed because the State did not show a cause of death. It is well settled that the State does not have to produce a body; let alone prove how a victim died. State v. Zarinskv. 143 N.J. Suoer. 35, 54 (App. Div. 1976). In Zarirskv. in 1975, defendant was charged with the 1969 murder'of teenager Rosemary Calandriello. Id. at 41. Defendant was alleged to have abducted Rosemary while she walked to a neighborhood store. Id. Her body was never recovered. Id. The police deterrnined that defendant was the perpetrator of the murder through witness interviews and the identification of his vehicle. Id. at 4243,46. A search ofdefendant's vehicle revealed hair clips and panties similar to the ones Rosemary wore but same were never identified as belonging to Rosemary. ld,. at43. Defendant admitted to cellmates that he tbrew Rosemary's body, loaded with weights in a river. rd. at 47. Defendant was convicted ofmurder at trial. Id. at 48. 4 On appeal, defendant argued that tbe trial court erred and should have suppressed defendant's statements to his cell mates as there was no corroborative evidence or independent proof ofmurder . as the State had not produced a body and therefore his statements were improperly admiued. ld. at 54. ln particular, Zarinsky argued that there was no evidence of murder Here, the court held that the failure of the State to produce a body in a murder case does not preclude a finding that the victim is dead. Id. The court reasoned that "[p]roof ofthe Corpus delicti-the fact of injury or, in a homicide case, of death, by a criminal agency-may be supplied by direct or circumstantial evidence." (giling Commonwealth v. Burns, 409 Pa. 619, 629-33 (Sup. Ct. 1963); State v. Dudley. 19 Ohio App.2d 14,20,249N.E.2d 536; Campbell v. People. 159 Ill. 9,42 N.E. 123 (Sup. Ct. 1895); People v. Corrales. 34 Cal.zd426,2lOP2d843 (Sup. Ct. 1949); Cf. United States v. Di Orio, 150 F.2d 938,941 (3td Cir.), cert. den. 326 U.S. 771 (1945). The court further found that'lhe successful concealment or destruction of the victim's body should not preclude prosecution of his or her killer where proof of guilt can be established beyond a reasonable doubt." @iling Campbell v. Peoole. supra- 159 lll. at22,42N.E. at 127.). The evidence presented to the grand jury established that o nMay 25,1991 Jennifer Blair, the l4-year-old babysitter of Timothy Wiltsey, age 5, reported him missing to Sayreville Police from a camival at Kennedy Park in Sayreville, New Jersey. When Sayreville Police interviewed defendant on May 25, 1991, she indicated that she brought Timmy to the camival but he wandered off when she went to buy a soda. Defendant was asked to come to Sayreville Police headquarters the next day for a formal statement. Defendant's statement was played to the grand jury. In the statement defendant explained that she and Timmy were at their home at 362 % Augusta Place in South Amboy. On the 25G of May, Timmy was a healthy 5 year old boy. At about 2 ot 2:30 on the 256, defendant left with Timmy to go to Holmdel Park. Defendant Ieft Holmdel Park arormd 6:00 or 6:30 p.m. and brought Timmy directly to the carnival at Kennedy Park. Defendant put Timmy on three rides and then she wanted to get a drink. When defendant went to get a drink at the concession stand and when she tumed her back to pay, Timmy was gone. She provides a similar handwritten statement to the police on June 4, 1991 . On June 6, 1991, defendant was interviewed again by Sayreville Police. On that date, defendant changed her statement from Timmy walked away from me to Timmy was abducted. Defendant told police that Timmy was abducted by two men who grabbed him offof a ride. During that same statement, however, defendant told police that Timmy's abduction was not true, but she told the police that because they wanted to hear it. On June 7, 1991, defendant's boyfriend, Fred Bruno, contacted Sayreville Police and told them that defendant had different information about her son's disappearance. Defendant told Mr. Bruno that Timmy was abducted at knife point by a female in a red car. On that same day, defendant reported to Sayreville Police and told them she was not being truthfirl the day before. Defendant then gave a different abduction scenario and told the police that her son was abducted by a woman named Ellen who she knew from her employment in 1987 at Amboy Madison Bank. Defendant indicated that "Ellen" used to cash Middlesex County welfare checks at the bank. Defendant stated that she ran into Ellen at the camival. Ellen was with two males and a small female child. Defendant stated that after conversing with Ellen, she Ieft Timmy with her and two men she was with, so that she could get a soda. Defendant did not see Timmy upon her retum from getting the soda- On June 13,1991, defendant gave a yet a different version of the abduction, this time indicating that the abduction was at knife point. Defendant's statement that Timmy was abducted changed several more times. The grand jury heard evidence that the police could not confirm that Timmy was at Holmdel Park or that he was at the camival. Despite pulling all of the records and the majority of the photographs of people receiving welfare named Ellen or names similar to Ellen in 1987, defendant did not identifr Ellen. The last people other than defendant to see Timmy alive were the defendant's neighbors, on the moming of Timmy's disappearance. On October 26, I 991 , a Teenage Mutant Ninja Turtle snealer was found in a grassy area on the south side of Olympic Drive near Rarital Center, New Jersey by a birdwatcher. Timmy was described as wearing these sneakers when he disappeared. when shown the sneaker by the police, defendant indicated that the sneaker did not belong to Timmy. When questioned by reporters about the finding of the sneaker, defendant then reported to the police that the sneaker did belong to Timmy. Police went to the area in the fall of l99l where the sneaker was found, but there was a lot of water and the area could not be searched. on April 23 and,24,1992, a massive search of the area near olympic Drive was rurdertaken. on April 23, 1992, police found a second sneaker matching the first sneaker. In a creek bed on the other side of oly,mpic Drive, a skull was found, bones and along with a blue and white blanket, and teenage mutaDt ninja turtle balloons. The following day, police continued the search and found two waistbands, one for a pair of underwear, and the other for red shirts, both size 6, Timmy's size. The Middlesex Counry Medical Examiner, Dr. Marvin Shuster, came to the scene on the 23'd.Dr. Shuster consulted a forensic odontologist, Dr. Kartegener, who was able to match the teeth found in the skull with Timmy Wiltsey' s denial records and determine the skull belonged to Timmy. Dr. Shuster later performed an autopsy and found that the police had recovered a partial skull with no deformities, six leg bones, two bones from the base of the spine, a heel bone and a piece ofpelvic bone. None of the bones or skull had trauma to it, but were decomposed. Dr. Shuster ruled the death a homicide, but could not state a cause ofdeath. In April of 1992, the FBI, who was also involved in the investigation, interviewed defendant's mother, Alice Lodzinski. 1415. l6rlzinski reported that defendant used to work in Raritan Center, Edison, NJ, at a location called Florida Fulfrllment. Mrs. Lodzinski indicated that she knew this because she used to drive her daughter to work. On April 21,1992, defendant confirmed that she did work at Florida Fulfillment. Defendant had previously left that portion her work history out ofa of response to a question asked by police to list all the places she worked. The location of Florida Fulfillment was four-tenths of a mile from where Timmy's remains were found. An employee of Florida Fulfillment in the main office in Florid4 Wayne Kress, indicated that he would speak to defendant frequently during her emplolment. In fact, there relationship became personal and defendant went to Florida to visit him. During their conversations, defendant told Kress that she would walk the area surrounding her office on her lunch breaks. In 2011, police reopened the homicide investigation of Timmy Wiltsey. As part of their investigation, on June 30, 201l, the blanket that was found close to the remains of Timmy was shown to Jennifer Blair, the babysitter who reported Timmy missing on Blair positively identified the blanket as coming May25, 1991. Jennifer from the defendant's home. This blariket had been previously shown to defendant and her mother, but they failed to make a positive identification. Like Zarinskv. in this case there is ample circumstantial evidence to prove murder using all the reasonable inferences from the evidence presented to the grand jury. The state has met a prima facie case of murder against defendant. The grand jury heard evidence I 991 th at onMay 25, , a healthy 5-year-old boy who resided in south Amboy disappeared. Defendant, his mother, first reported rimmy had wandered off from her at a camival in Sayreville. within two weeks ofhis disappearance, defendant changed her story aad said her son was abducted by a woman she knew. She later said the abduction was at kifePoint. Despite police showing defendant every person matching the criteria ofthe female kidnapper, defendant never identified a perpetrator and the police were never able to corroborate defendant's versions of either disappearance or abduction. Timmy's remains were found 10 months later in a creek bed within four-tenths ofa mile from where defendant worked in Raritan Center, Edison, New Jersey, a place defendant never disclosed to police where she was employed despite being asked. This was a remote location where defendant told her former lover she took long walks. Timmy's remains were found in close proximity to a blanket a wimess identified as coming from defendant's home. Timmy's death was ruled a homicide by the medical examiner. Given all of this evidence, when the court analyzes all the inferences drawn from the evidence, the court will be satisfied that all of the evidence points to defendant as murdering her child. The State has satisfied its burden of proving a prima facie case ofmurder. Defendant's motion to dismiss the indictment should be denied. Defendant fi:rther argues that the indictrnent should be dismissed because the State presented inadmissible evidence to the grand jury. Specifically, defendant argues that the State should not have presented evidence that defendant was having financial difficulty, that her son was impacting her dating relationships and that she did not display emotion. The evidence the State presented to the grand jury supported defendant's motive to murder her son. Our law fully supports admission of such motive evidence. 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. Covell. 157 N.J.554, 565 (1999). Otherwise there would often be no means to reach and disclose the secret design or purpose ofthe act charged in which the very gist of the offense may consist. Such intent or motive may be proved either by direct or circumstaatial evidence. All evidentiary circumstances which are relevant to or tend to shed light on the motive or intent of the defendant or which tend fairly to explain his actions are admissible in evidence against him although they may have occurred previous to the commission ofthe offense. Glaser v. United States, 315 u.s. 60 (1942); Little v. United States. 73E2d861(10 Cir., 1934); State v. Rogers. l9 N.J. 2lg, 228 (19s3). In light of its unique probative firnction, a shong showing ofprejudice is necessary to exclude motive evidence under the balancing test ofN.J.R.E. 403. See State v. Koskovich. 168 N.J.448,486 (2001); Covell. supra, 157N.J.at570. Where the prosecution has a theory of motive that rests on circumstantial evidence, that evidence should not be excluded merely because it has some capacity to inllame ajuror's sensibilities; to hold otherwise would preclude a jury from inferring a defendanfs "secret design or purpose." See Rosers. supra- A reasonably broad allowance for motive evidence permits jurors, in tleir role 19 as N.J. at 228. fact-finders andjudges of credibility, to reject a given explanation for conduct as hconsistent with their understanding ofhuman nature, or to accept a motive as a rational premise that could lead a defendant to criminality. Courts have admitted motive evidence even when ofwhy a defendant may it did no more than raise an inference have engaged in criminal conduct, and even in the face ofa certain degree ofpotential prejudice stemming from the evidence. See. e.q., Rose. supra- 206N.J. at 156 (holding admissible prior indictnent for attempted murder to show motive for subsequent murder of same victim); Covell, supra- I 57 N.J. at 571 (holding defendant's statement regarding prior lewd conduct admissible to show motive for subsequent child Iuring); State v. Smith- 55 N.J. 476, 487-88 (holding admissible evidence that defendant's license had been revoked as showing motive for attack on officers who stopped his car), cert. denied. 400 U.S. 9a9 Q970); Rosers, ggp1q, 19 N.J. at228-29 (holding admissible evidence of earlier financial dealing in trial for murder on theory that defendant was motivated by desire to avoid paying victim); State v. Castaqna, 400 N.J. Super. 164, 187 (App. Div. 2008) (holding admissible evidence of temporary restraining order and criminal complaint related to domestic violence where State's theory was that defendant conspired to kill spouse to avoid suffering adverse employment consequences of restraining order); State v. Cherry.289 N.J. Super. 503,527-28 (App. Div. 1995) (holding admissible evidence of defendant's hatred ofpolice and participation in Black Panther Party as motive evidence when defendant charged with shooting officer); State v. crumb. 277 N.J. super. 3 1 1, 3 1 7-1 8 (App. Div. 1 994) (holding mcist writings admissible to show racial-hatred motive for killing stranger). Furthermore, motive evidence is less likely to be excluded under the balancing of N.J.R.E. 403 when it does not evince some underlying propensity of the defendant that cou.ld lead a jury to conclude that violence or depravity are in the defendant's nature. However, even when such a danger persists, courts have admitted evidence of prior convictions and other bad acts when they permit aj ury to infer motive. See. e.&, BeSg supra.206 N.J. at 156; Covell. supra- 157 N.J. at 571 ; Castaena- supra- 400 N.J. Super. at 187; Crumb. supra- 277 N.J. Super. at 318; State v. Calleia- 206N.1.274,293-295 (2011). Here, the motive evidence demonstrates that defendant had compelling reasons to murder Timmy. He was a financial drain on her as well as an impediment to her busy social life. In addition, Timmy was the reason that at least two boyfriends broke offtheir relationship with her. This motive evidence is intrinsic to the crime itself and is admissible to show that defendant is guilty of the murder of Timmy Wiltsey. As outlined in the previous point, there was sufficient evidence presented to prove defendant murdered her son without motive evidence; however, the motive evidence puts the killing in context. Defendant's argument as to this point should be denied. POINT III DEFENDANT'S STATEMENTS SHOULD BE ADMITTED FOLLOWING A IIEARING. Defendant challenges all the statements of defendant that the State seeks to admit as being involuntary and irrelevant. The 19 statements which the defense objects to are enumerated in the State's JuIy I 5 , 20 1 5 brief. This Court should conduct a hearing to determine the admissibility of the statements. Defendant further argues that defendant's statements are irrelevant because they do not concern Timmy's murder or the infliction of serious bodily injury. This claim is without merit. Defendant's statements are highly relevant to defendant's state ofmind and consciousness guilt. Moreover, the statements of are admissible as statements of defendant herself. Evidence is relevant when it has "a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401; State v. wilson. 135 N.J. 4, l3 (1994). This test is broad and favors admissibility. See state v. Deatore, 70 N.J. 100, 116 (197 6).ln detemrining whether evidence is relevant, the inquiry focuses on 'the logical coDnection between the proffered evidence and a fact in issue," State v. Hutchins. 241 N.J. Suoer. 353, 35g (App.Div. 1990), or, stated differently, "whether the proffer 'renders the desired inference 10 more probable than it would be without the evidence."' State v. Davis, 96 N.J. 61 l, 619 (1 984) (quoting Deatore, supra, 70 N.J. at I 16). The evidence need not be conclusive in itself but need only, when taken together with other evidence, make the existence of the fact sought to be proven more probable. Except as otherwise provided by the Rules ofEvidence or other law, "all relevant evidence is admissible." N.J.R.E. 402. Here, the credibility of defendant's various statements is critical to both the defense and the State. The statements are important to lhe defense because in her statements, she denies all culpability relating to Timmy's disappearance and murder. Defendant's statements to the police are highly probative for the State because they establish that defendant was the last person to see Timmy alive. ln addition, defendant's numerous statements, which change over time, demonstrate that defendant was not being honest and forthcoming with the police and at times gave completely different accounts of Timmy's disappeaxance. At no time during the investigation was law enforcement able to corroborate defendant's claims. The relevance of defendant's statements is manifest. POINT TV DEFEN'DANT HAS NOT DEMONSTRATED A DUE PROCESS VIOLATION BY DELAY OF PROSECUTION. Defendaat claims the indictrnent should be dismissed because of tle excessive delay between the death of Timmy and defendant's arrest. In particular, defendant cleims that due to the passage of time, defendant is unable to locate certain witnesses and other witnesses have died. As discussed in Point I, dismissal of an iadictment is a "draconian remedy" that should not be granted "except on the clearest and plainest of grounds.', State v. perrv. 124 N.J. l2g, 168-169 (1991); State v. New Jersev Trade Waste Ass'n. 96 N.J. 8, l8-19 (19g4); State v. Peterkin. 226 N.J. Suoer. 25, 38 (App. Div. 1988). Although dismissal of an indictment is addressed to the sound discretion of the trial court, state v. Mccrar.v, 97 N.J. ljz,l44 (lgg4), such discretion should be exercised onJy where the indictnent is manifestly deficient or palpably defective. state v. Ramseur. 106 N.J. 123,232 (1987); State v. wein. 80 N.J. 491, 11 501 (1979). The due process clause imposes a limit on how long the govemment may delay initiating a criminal prosecution after it has evidence of a crime. State v. Azuirre, 287 N.J. Super. 128, 131 (App. Div. 1996), certif. denied, 144 N.J. 585 (1996). It is premised on the notion of fair play and notions ofjustice. ld. at 132. A defendant claiming a denial of due process from prearrest delay has the burden ofpersuasion to establish that there was no legitimate reason for the delay ard that he was prejudiced by the delay. Id.; State v. Roundtree. l18 N.J. Super.22,28-29 (App.Div. 1971). AccordStatev.Little.296N.J.Super.573,58l-582(App.Div. 1997),ceftif. denied, 150 N.J. 25 (1997). Once a defendant has shown prejudice, the State must show that there was a legitimate reason for the pre-arrest delay; the ultimate burden, though, resides with defendant. State v. Cichetto. 144 N.J. Super. 236,238 (App. Div. 1976). And, actual prejudice, not possible or presumed, is required to support a due process claim. State v. Azuirre. suora. 287 N.J. Super. at 134. "'Vague assertions oflost witnesses, faded tnemories, or misplaced documents are insufticient to establish a due process violation from pre-indicfinent delay."' State v. Alexander. 310 N.J. Super. 348, 355 (App. Div.) Guolting Azuirre.9994,287 N.J. Suoer. at 133), certif. denied. 156 N.J. 408 (1998) (qgql[ing United States v. Beszbom. 21F.3d62,67 (5th Cir.), cert. denied, sub. nom. Westrnoreland v. United States. 513 U.S. 934 (199a)); see also State v. Rodriguez, 112 N.J. Super. 513,516-17 (App. Div. 1970) (rejecting the defendant's contentior that he was unduly prejudiced by his failure to remember his activities on the critical dates that he sold marijuana to an undercover agent), certif. denied. 6l N.J. 156 (1972). The reasons for such a rigorous standard under the due process clause are that prosecutors should not be discouraged from thoroughly investigating possible crimes and should not be required to file charges in a hasty fashion. State v. Azuirre. supra- 287 N.J. Super . at 132-133. In addition, applicable statutes of limitations protect defendants from having stale charges brought against them. Id. In State v. Townsend, 186 N.J. 473 (2006), our Supreme Court addressed the issue ofa due process violation resulting from delay in prosecution. The court held that a defendant alleging a due process violation based on pre-indictrnent delay has the burden of showing that "(l) the state's delay in seeking an indictlent was a deliberate attempt to gain advantage over [the defendant], and (2) the delay caused defendant actual prejudice in his ability to defend the charge." Id. at489 (critine United States v. Gouveia- 467U.5.1g0, 192 (19g4) (emphasis t2 added)). In State v. Azuirre, 287 N.J. Super. 128, 1'32-33 (App. Div.), certif. denied. 144 N.J. 585 (1996), the Appellate Division recognized that it is "perfectly legitimate" for the prosecution to delay an indictnent "to gather additional evidence against aa accused or to broaden the investigation," and that prosecutors "should not be discouraged from thoroughly investigating possible crimes, particularly those involving multiple participants or multiple transactions." See also United States v. Lovasco.431 U.S. 783, 789 (1977). In Townsen& the defendant claimed a violation ofhis due process rights because his indictment for murder occurred some twenty years after the crime and initial investigation. Id. at 485-486. The defendant argued that the longet the pre-indictment delay involved, the less ofa burden an accused should have to show actual prejudice and a violation ofhis constitutional right to due process. Id.at488. The Supreme Court disagreed, decliniag to construe a defendant's due process rights under the New Jersey Constitution in such an expansive fashion. Id. at 488- 489. Instead, the Court applied the two-part test described above. The Court found that the defense had produced no evidence that the State's delay was tactical or intended to prejudice defendant. Id. at 489. Moreover, it found that the defense had demonstrated no actual prejudice arising from the delay, even though several alleged witnesses were now unavailable. Ibid. Defendant never proffered the substance ofthose witnesses' anticipated testimony, nor did he explain horv that testimony would have helped his case. Ibid. Thus, a due process claim requires that defendant prove illegitimate reason and actual prejudice. Defendant's claim fails because he has not made out either prong ofthe test. There is no indication whatsoever that the State had an illegitimate reason or deliberately attempted to gain a tactical advantage by delaying the indictmeni. Rather, the discovery shows that the investigation was ongoing long after Timmy's remains were recovered. Investigators from multiple law enforcement agencies in conjunction with the prosecutors continued to review and consider the evidence. In 201 1, police reopened the homicide investigation of Timmy's death. As part of their investigation, on June 30, 2011, the blanket that was found close to ths Jspains of Timmy was shown to Jennifer Blair, the babysitter who reported Timmy missing onMay 25, 1991 . Jennifer Blair burst into tears when she saw the blanket and positively identified the blanket as coming from the defendant's home. This blanket had been previously shown to defendant aad her mother, but they failed to make a positive identification. 13 Identification of the blanket by Blair undermined defendant's claim that Timmy was abducted and provided a direct link between defendant and Timmy's remains. At no time during the investigation did defendant mention that Timmy had a blanket with him from her home at the time he was abducted. Nor had defendant claimed that a blanket was missing from her house. The blalket provided the necessary link between defendant and Timmy's murdet and gave rise to the instart prosecution. The interview of Blair occurred in the ordinary course of continuing an investigation of a cold case. Accordingly, there can be no showing of illegitimate reason on the part of the State. Rather, the blanket link was discovered tbrough diligent police work performed in good faith. ln any event, defendant fails to make out the second prong ofthe due process test - prejudice. The claim that she cannot interview possible witnesses that could have conoborated defendant's story is simply too vague and conclusory to satisfy the rigorous due process test. See State v. Alexander. supr4 310 N.J. at 355. Carol Macko Defendant claims that Carol Macko, now deceased, could have aided tlre defense at trial. Investigative reports reveal that on the night Timmy disappeared, Carol Macko was at Kennedy Park with her children. She was walking laps on the pathway that goes around the pond. She noticed a womaa, who fit tlre description of defendant, walking with two men and a small child, who fit the description of Timmy. One of the men rx:rs approximately the same age as defendant and the other was approximately 40 years old. these people (42). An investigative report indicates Macko saw walking away from the camival on the footpath around the pond toward Iocated on the opposite side of the park. She later saw the same group coming back a play area fiom the play area by way ofa different route, without the child. She thought this was odd and mentioned it to her 1 s-year old daughter, Tracy Tylicki. Macko reported what she observed to the police when she leamed of Timmy's disappearance. (42). The following day, Macko arrived at the Sayreville Police Department and gave a detailed statement to sergeant cox regarding what she saw the night before. (83). She added that she first saw the woman, two men and child pldy Frisbee, then she saw them enter the playground, then she saw them exit the playground. (84). Macko described the woman as thin, l4 approximately 5' 4" -5' 5" and wearing hot pink neon shorts. Her hair was dirty blond with streaks. (84). Tracy Tylicki and her two girlfriends, Debbie and Donna Wyckoff, were also interviewed by the police on May 28, 1991. They described the young boy as being approximately five years-old with a short haircut, red tank-top and Ninja Turtle sneaken. (85). They described the white woman as wearing a black tank top and neon pink shorts with blondish hair pulled back in a ponyail. (86). Following the interviews of Carol Macko, Tracy Tylicki and the Wyckoff sisters, defendant was asked if she was in Kennedy Park with two white males and Timmy and she denied that she was. (42, 66,67,83-86). Defendant now cla.ims that the defense will be disadvantaged at trial because she cannot call Carol Macko as a witness at trial to establish that Timmy was present at Kennedy Park. Defendant's due process claim fails because Carol Macko's daughter, Tracy Tylicki, and her two friends, Donna and Debbie Wyckoff, also viewed the two white males, white woman and young child and are still alive and available to testifr. Accordingly, defendant cannot show that she is prejudiced by Macko's death because three witnesses who were with Macko on the day of Timmy's disappeaftrnce, were able to observe the same thing Macko observed, and are available to testiff at trial. Marv Fuiciniti Mary Fulcinti was present in Kennedy Park on May 25, 1991 and told the police that she saw a young boy being led away by a white male. Defendant claims that she cannot locate Fulcinti and her absence at trial creates a due process violation. Defendant's claim is without merit. The State located Mary Fulciniti in South Carolina and has provided her contact information to the defense. Holmes Protection. Inc. Defendant further asserts that employees of Holmes Protection, Inc., could be helpfirl to the defense because they were responsible for patrolling Raritan center and would have seen defendant dumping Timmy's body on the aftemoon of May 2s,1991. Again, defendant's due process violation claim is based on speculation. The State does not know the precise time when 15 Timmy's body was brought to Raritan Center. Defendant does not assert how often Raritan Center was patro.lled or what areas were in fact patrolled. Moreover, the State does not know u'hen Timmy's body was dumped in Raritan Center or whether it could have been wihessed by someone patrolling the area. As this court is aware, Raritan Center is an enormous industrial park; short of having surveillaace camerzrs on each road, a patrol detail could not possibly be aware of all the goings-on in the park at any given time. Therefore the existence of patrols around Raritan Center is immaterial. Defendant's claim rests on pure speculation that the patrol guards would have relevant and probative evidence. Defendant utterly failed to show how her ability to defend herself was prejudicially compromised due to the pre-arrest delay. Defendant did not present concrete evidence showing that her ability to defend herself was materially harmed. State v. Azuirre. supra- 287 N.J. Super. at 134. POINT V DR. NATARAJAN'S TESTMONY AND REPORT DOES NOT VIOLATE CRAWFORD. The State does not intend to introduce Dr. Schuster's report into evidence at trial. Rather, the State intends to admit the report of Dr. Nataraj an who completed her own independent review ofthe relevant repofts and findings regarding Timmy's remains and arrived at her own conclusion. In addition to Dr. Natarajan, the State intends to call Dr. Kenneth Gromen to testifr regarding Timmy's dental records, Dr. Donna Fortana, a forensic anthropologist, and Dr. Jay Kartegener, D.M.D., regarding the post-mortem identification of Timmy. Dr.Natarajan Conducted an Independent Review and Arrived at a Conclusion krdeoendent of Schuster. Dr. Natarajan's report a::d testimony do not violate Crawford. Our Supreme Court recently concluded in two cases that United States Supreme Court precedent did not "lead to the conclusion that in every case, no matter the type of testing involved or the type ofreview conducted by the person who does testiry, the primary aaalyst involved in the original testing must tesdry to avoid a con-frontarion clause violation." state v. Roach, 219 N.J. sg,77 (2014) (quoting Michaels. 219 N.J. 1,33 (2012). Ia Michaels, this Court reiterated that no United States 16 Supreme Court case "stands for the proposition that in all cases the primary analyst who performed the test must testiff when a differen! sufficiently knowledgeable expert is called to testifr at trial." 219 N.J. at 33. The Court also recognized that to require the analyst who conducted the procedure to testiff in every case "would take confrontation law to a level that is not onJy impractical, but, equally importantly, is inconsistent with our prior law addressing the admissibility ofan expert's testimony in respect of the substance of underlying information that he or she used in forming his or her opinion." ld. at 33-34. Our Court has already held that an expert can with the Rules of Evidence to the obj ective hndings contained in testi$ in keeping a deceased medical examher's autopsy report in rendering expert opinion testimony. See State v. Reddick, 53 N.J. 66, 68-69 (1e68). To determine whether facts underlying an expert's opinion were properly disclosed at trial in Michaels, the Supreme Court focused on whether the witness was knowledgeable about the particular information used in forming his opinion to which he testified and whether he had a means of See veriffing the underlying facts, even though id. at 35-36. '[A] truly independent reviewer" he was not the primary creator of the data- of forensic results can testiry to those results and to his conclusions based on those results, without violating the Confrontation Clause so long as the testiffing expert (l) is knowledgeable about the process yielding the results, (2) has independently verified the accuracy of the process and results, and (3) has formed an independent opinion based on the results. See id. at 45-46. This three-part test was squarely met here. Firs! Dr. Natarajan is a highly qualifred and experienced medical examiner who has testified as an expert many times in Middlesex County, whom this Corut is well-acquainted with. Dr. Natarajan is certainly qualified to discuss in detail how an autopsy is performed. There can be no dispute that Dr. Natarajan was knowledgeable about the autopsy process employed by Dr. Schuster. Neither Roach nor Michaels required the testifuing experts to have obsewed the process, only that the experts relied on their general knowledge of the "procedures and protocols" aad their,training and knowledge', of the procedures involved. See Roach.219 N.J. at 78. second, Dr. Natarajan independently verified the accuracy of Dr. Schuster's findings by reviewing the medical records of rimothy wilstey, scene photographs, autopsy report of Marvin Schuster and photographs, anthropology report of Dr. Donna Fontana, forensic odontology report t7 of Dr. Jay Kartagener, postmortem radiology reports and dental records of Timothy Wiltsey, and no disparities were noted. As a result of her knowledge of the process and her review of the photographs and reports before her, Dr. Natarajan formed an independent opinion as to those matters and will testifr to those matters at trial. This will afford defendant a meaningful oppornurity to confront the expert conclusions. Although Dr. Natarajal reviews Dr. Schuster's report, she makes her own, independent observations and conclusions. The Supreme Court has found that, provided there is aa extensive explanation as to how the testi8,ing expert reached her conclusions, an expert who says that he agreed with the nontestifring expert should "not eviscerate" the independence oftris detailed expert ieview and testimony. Roach. 219 N.J. at 82. Even testimonial facts "can 'belong' to more than one person if the verification and truly independent review . . . are performed and set forth on the record by the testifuing witness." Michaels. 219 N.J. at 46. The Supreme Court has recognized that "the reality that more than one expert can responsibly verifr a process, find a fact to be reliable, and draw a conclusion." Id. In Michaels, it was conceded that the testiffing expert did not actually conduct the tests himself, nor did he directly observe the analysts perform the tests. Id. at 41. Moreover, he "acknowledged that there is a 'human element' to the testing procedures[.]" Id. at I 1 . Nevertheless, the Court in Michael's found that Michaels's opportunity to cross-examine the testiffing expert about the testing and its results was "meaningfirl confrontation" that was "in no way equivalent to the surrogate testimony . . . in Bullcomins ." Id,. at 4445. In Roach, the Court found that the testifuing expert need not be a supervisor but could be any qualified expert who meets the criteria. 219 N.J. at 79. This case is very similar to Roach. The expert in Roach reviewed the nontestifying analyst's work on which she made her own independent findings. ld,. at 67 . She incorporated the other analyst's results into her own report from which she testified, stating in detail how she compared her own independent profile of the DNA taken from Roach to the other analyst's profile of the DNA found on the victim; she then identified a DNA match that provided the crucial link between Roach and the victim. Id. The expert even testified that she agreed with the nontestiSing analyst's results. Id. Although the other analyst's report was not admitted into evidence, it was repeatedly refened to in the testimony. Id. at76. In fact, it was recognized as integral The ooly major difference from the present case is to the expert's testimoty. ld.at77. tlat in Roach, the nontestiSing analyst's report was crucial; whereas here, Dr. schuster's report merely provided what other 18 witnesses wiil testify to and his findings are not in dispute - Timmy's cause of deatl is unknown yet the surrounding circumstances establish it was a homicide. Although the autopsy report may have been important to Dr. Natarajan's testimony, it was not as iategral as the nontestifring analyst's DNA profrle in Roach. In short, the same result should obtain here. See State v. Saurbrv. 447 S.W.3d 780,783-89 (Mo. Ct. App.2014) (applying same analysis to reach same result for expert testimony referring to contents of autopsy report). In Michaels. the Court recognized that 'laking the most rigid approach to confrontation rights in the context offorensic reports carries practical drawbacks that range from moderate to severe." 219 N.J. at 48. The Court was concemed that a rigid approach "leaves no meaningfi solution where the analyst [is] deceased." Id. Nor can it be assumed that a re-examination is even possible. Id. An effective re-autopsy here, now more than twenty-three years after the murder, would be unlikely and impractical, if not impossible. To suppress an autopsy report because the examher has died would ignore valuable forensic evidence in favor of inferior altematives. And a dubious re- autopsy would be pointlessly insensitive to victims' families. "[T]o bar admission ofthe out-of-court records at issue here could undermine, not fortiry, the accuracy of faclfinding at a criminal trial." Williams v. Illinois. 567 U.S. _, 132 S. Ct. 2221,2251 (2012) (Breyer, J., concurring). Justice Breyer warned of the dangers in barring reliance on an autopsy report: Autopsies . . . are often conducted when it is not yet clear whether there is a . . . suspect or whether the . . . autopsy will ultimately prove relevant in a criminal trial. [They] are typically conducted soon after death. And . . . repetition ofthe autopsy may not be possible. What is to happen if the medical examiner dies . . . ? Gd) Defendants get meaningful confiontation when they cross-exa:nine the qualified medical examiner who, as here, will testiffing to her own independent expert conclusions, which are based on her independent review ofthe medical records of rimothy wiltsey, scene photographs, autopsy report of Marvin schuster and photographs, anthropology report ofDr. Donna Fontan4 forensic odontology report of Dr. Jay Kartagener, postrnortem radiology reports and dental records of Timothy wiltsey. Dr. Natarajan is not merely parroting Dr. Schuster's findings. The supreme court rejected the view that "denigra.tes the validity and legitimacy ofindependent review in forensic science." Roach,219 N.J. at 82. Such effective confrontation ofthe 19 independent expert is entirely consistent with the notion that a defendant is not entitled to a perfect trial, only a fair one. State v. Feaster, 156N.J. 1,84 (1998). Moreover, defendant will have the opportunity to cross-examine in State's witnesses, including Dr. Donna Fortaaa, a forensic anthropologist, and Dr. Jay Kartegener, D.M.D., regarding the post-mortem identification of Timmy, and challenge the data upon which Dr. Nataraj an relied to make her report. Dr. Nataraian's Reoort Is Not a Net Ooinion Defendant's claim that Dr. Natarajan's report and proposed testimony amounts to a net opinion is without merit. The net opinion rule "requires an expert to give the why and wherefore of his or her opinion, rather than a mere conclusion." Rosenbers v. Tavorath. 352 N.J. Super. 385, 401 (App. Div. 2002) (quotation omitted); State v. Townsend- 186 N.J. 473, 494 (2006). Dr. Natarajan has done exactly that in her report and will testi$ consistent with those findings. Dr. Natarajan explained in her report the reasons for her conclusion that the cause of death remains undetermined and that the manner of death was a homicide. She stated that she examined the enumerated materials and from them, she concluded that Timmy did not have any significant medical or behavioral issues that would lead to his death in a remote creek bed some distance from where he was last seen alive. (Da Exhibit E, page 2). Dr. Natarajan stated that unless there were traumatic injuries identified in the skeletal remains, the cause of death must remain objectively undetermined. Id. She further considered that manaer of death detemrinations are based on the circumstances surrounding the terminal events and noted that in this case, there was nothing to suggest natwal, accidental or suicidal manner of death. From these findings, Doctor Natarajan concluded that the cause of death remained undetermined and the manner of death of was homicide, finding that tiere was nothing to suggest a natural, accidental or suicidal manner of death. Id. Defendant might not like Dr. Natarajan's analysis or conclusion but it certainly is not a net opinion. Her opinion is directly tied to the evidence in this case. eview of Serqeant Crocco's Report was Prooer Defendant further claims that Doctor Natarajan improperly relied on sergeant Scott Crocco's investigative report in arriving at her conclusion. 20 Sergeant Crocco's report was the most recent law enforcement report generated in this case. This report summarizes thousands of pages of discovery. Dr. Natarajal is certainly entitled to review investigative repofis relevant to her determination. Medical examiners are statutorily required to take charge of a dead body and perforrn an investigation to determine the manaer of death, whether 86. In this it be homicide, suicide, accidental or undetermiled. N.J.S.A. 52:l7B- case, Dr. Natarajan had to evaluate under what circurnstances Tirnmy disappeared and the conditions ofhis remains when found to arrive at an accurate conclusion or whether the death was natural or unnatural. Sergeant Crocco's report gave Dt. Natarajan the necessary background of Timmy's disappearance so she could understaad the circumstances surrounding his death. CONCLUSION For the foregoing ree6ons, the State respectfirlly urges this Court deny defendant's motion to dismiss the indictment, admit defendant's statements and permit Dr. Natarajan to testifu. Respectfi:lly submitted, / Christie L. Bevacqua Deputy 1't Assistant Prosecutor Attomey Id #: 033211997 R. Scott Lamountain, Assistant Prosecutor Joie Piderit Assistant Prosecutor Joseph Surman, Assistant Prosecutor On the Brief Gerald Krovatin, Esq. 60 Park Place Suite 1 100 Newark, NJ 07102 2t