State v. Lodzinski

Decision Date26 May 2021
Docket NumberA-50 September Term 2019,083398
Citation251 A.3d 318,246 N.J. 331
Parties STATE of New Jersey, Plaintiff-Respondent, v. Michelle LODZINSKI, Defendant-Appellant.
CourtNew Jersey Supreme Court

Gerald Krovatin and David W. Fassett argued the cause for appellant (Krovatin Nau and Arseneault & Fassett, attorneys; Gerald Krovatin, Newark, David W. Fassett, and Gregory D. Jones, on the briefs).

Joie D. Piderit, Acting Assistant Prosecutor/Special Deputy Attorney General, argued the cause for respondent (Yolanda Ciccone, Middlesex County Prosecutor, attorney; Joie D. Piderit, of counsel and the briefs).

Lawrence S. Lustberg argued the cause for amici curiae American Civil Liberties Union of New Jersey and Association of Criminal Defense Lawyers of New Jersey (Gibbons and American Civil Liberties Union of New Jersey Foundation, attorneys; Lawrence S. Lustberg, Michael R. Noveck, Alexander Shalom, Newark, and Jeanne LoCicero, on the brief).

Paul J. Casteleiro argued the cause for amicus curiae Centurion Ministries, Inc., d/b/a Centurion (Centurion and Fox Rothschild, attorneys; Paul J. Casteleiro, of counsel and on the brief, and Karen A. Confoy, Jack L. Kolpen, Dominique J. Carroll, and Allison L. Hollows, on the brief).

Debra G. Simms, Deputy Attorney General, argued the cause for amicus curiae Attorney General of New Jersey ( Gurbir S. Grewal, Attorney General, attorney; Debra G. Simms, of counsel and on the brief).

PER CURIAM

The judgment of the Appellate Division is affirmed by an equally divided Court, but the six members of the Court who participated in this appeal unanimously modify the Appellate Division's holding with respect to its characterization of the scope of the evidence that should be considered in reviewing a post-verdict motion for a judgment of acquittal. See State v. Lodzinski, ––– N.J. Super. ––––, ––––, ––– A.3d ––––, 2019 WL 3714000 at 2–4 (App. Div. 2019). The Court's articulation of the appropriate scope of review is set forth in Justice Patterson's concurring opinion. See infra at 357–60, 251 A.3d at 333–35 (slip op. at 28-32).

The Court also unanimously affirms the Appellate Division's affirmance of the trial court's ruling that defendant Michelle Lodzinski was not entitled to a new trial because a juror substitution occurred, see Lodzinski, 2019 WL 3714000 at 10–12, ––– N.J. Super. at ––––, ––– A.3d –––– (slip op. at 27-34), for the reasons set forth in Justice Patterson's opinion, see infra at 379–84, 251 A.3d at 346–49 (slip op. at 60-66).

JUSTICE PATTERSON filed a concurrence, joined by JUSTICES FERNANDEZ-VINA and SOLOMON. JUSTICE ALBIN filed a dissent, joined by JUSTICES LaVECCHIA and PIERRE-LOUIS. CHIEF JUSTICE RABNER did not participate.

JUSTICE PATTERSON, concurring.

Defendant Michelle Lodzinski appeals the Appellate Division's decision affirming her conviction of the first-degree purposeful or knowing murder of her five-year-old son. She challenges her conviction on two grounds.

First, defendant contends that she was entitled to a judgment of acquittal notwithstanding the verdict under Rule 3:18-2 because the evidence presented was insufficient to support the jury's verdict that she was guilty beyond a reasonable doubt.

We review the trial court's denial of defendant's motion for a judgment of acquittal notwithstanding the verdict in accordance with State v. Reyes, 50 N.J. 454, 458-59, 236 A.2d 385 (1967). When a defendant moves for a judgment of acquittal after the verdict, we consider the evidence in its entirety, including the evidence that defendant presented. State v. Williams, 218 N.J. 576, 594, 95 A.3d 721 (2014). Affording to "the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom," we determine whether a reasonable jury could find defendant guilty beyond a reasonable doubt of purposeful or knowing murder. Reyes, 50 N.J. at 459, 236 A.2d 385.

Viewed in accordance with the Reyes standard, the evidence presented at trial -- including defendant's proofs -- is more than sufficient to support a reasonable jury's determination that defendant is guilty beyond a reasonable doubt. We therefore concur with the Appellate Division that the trial court properly denied defendant's motion for a judgment of acquittal notwithstanding the verdict under Rule 3:18-2.

Second, defendant argues that she is entitled to a new trial pursuant to Rule 3:20-1 because the trial court dismissed a juror who contravened its instructions by conducting independent research, and replaced that juror with an alternate instead of declaring a mistrial.

We find no abuse of discretion in the trial court's response to the juror's misconduct. By virtue of his admitted violation of the court's instructions, the juror made clear that he was unable to continue his jury service under Rule 1:8-2(d)(1) for a reason personal to him, and the court properly dismissed him from the panel. The trial court confirmed that the remaining jurors were not tainted by the incident; the jurors -- including several who had heard the dismissed juror say that he had conducted independent research -- stated that they would not allow the incident to affect their ability to fairly decide the case. There is no evidence that the jury had reached a preliminary or final determination on any issue prior to the substitution. The trial court properly instructed the reconstituted jury to deliberate anew, and the reconstituted jury heard playback of testimony and conducted deliberations before reaching its verdict. Accordingly, we concur with the Appellate Division that defendant is not entitled to a new trial.

I.
A.
1.

Timothy Wiltsey (Timmy) was born in Iowa on August 6, 1985. 1 He was the son of defendant, then seventeen years old, and George Wiltsey, an eighteen-year-old resident of Iowa. When Timmy was six months old, defendant moved with him to New Jersey, her home state.

After defendant and Timmy arrived in New Jersey, they moved into the home of her sister and brother-in-law, Linda and David Hisey. When Timmy was about two and a half years old, defendant and Timmy moved into their own apartment in South Amboy. They later moved to two different apartments, also in South Amboy.

Defendant worked for a series of employers following her return to New Jersey. For approximately six months in 1988 and 1989, defendant worked as a secretary for Florida Fulfillment, a direct mail business, at its New Jersey office located at Raritan Center in Edison. Raritan Center was described at trial as a hotel, office building, and warehouse complex with extensive wooded areas surrounding the commercial buildings and a stream known as Red Root Creek running through a portion of the property.

After leaving her job at Florida Fulfillment, defendant worked for a few months at a law firm. In February 1991, she started a new job as a secretary at Consumers, a retail catalogue service located in Edison.

When defendant lived in her first apartment in South Amboy, a teenage neighbor, Dawn Matthews, babysat for Timmy. Later, following defendant's move to a different neighborhood in South Amboy, her niece Jennifer Blair, later Jennifer Blair-Dilcher, became Timmy's primary babysitter. When she babysat for Timmy, Blair-Dilcher was sometimes accompanied by her friend Danielle Gerding.

Shortly after Timmy's fifth birthday, defendant enrolled him in kindergarten at St. Mary's School in South Amboy for the 1990-1991 school year. The school nurse at St. Mary's described Timmy as a good boy who was healthy but was frequently late for school. School records reflect that Timmy arrived late for school sixty-three times during his kindergarten year and was absent on an additional twenty-five school days.

The record contains no indication that defendant was ever accused of abusing Timmy prior to the murder charge against her. Several witnesses testified at trial that they viewed her to be a loving and dedicated mother to her son, and that she considered the child her first priority.

2.

On Friday, May 24, 1991, defendant and Timmy visited the home of her brother's former girlfriend and offered to take defendant's niece, who was approximately Timmy's age, to a carnival at Kennedy Park in Sayreville the following day. The next day, however, defendant did not pick up her niece for the carnival or contact the child's mother.

A neighbor testified that on the morning of Saturday, May 25, 1991, she saw Timmy playing with another child in the street near his home; she stated that she shouted at him to get off the street and that he complied with her instruction.

That evening, Timmy's babysitters, Blair-Dilcher and Gerding, went to the carnival in Sayreville and looked for defendant and Timmy. They found defendant standing alone. Defendant said that she did not know where Timmy was and that he had been missing for fifteen minutes.

Blair-Dilcher and Gerding immediately began searching for Timmy. Between 7:45 p.m. and 8:00 p.m., Gerding notified an auxiliary police officer, Kevin Skolnik, that her friend's son was missing. Skolnik approached defendant and inquired about the missing child. Defendant, who did not appear to the officer to be upset, said that "she went to get her soda, she turned her back and her son was missing." Defendant told Skolnik that Timmy "had Ninja Turtle sneakers, he had a crew cut, [and] a t-shirt on."

Skolnik initially joined defendant in searching for Timmy and then informed his lieutenant, who in turn notified the Sayreville Police Department. Officer Timothy Brennan interviewed defendant, who again said that after she purchased a soda, she turned around and Timmy was gone.

Carnival employees and defendant made announcements over the loudspeaker about the missing boy, and police officers shut down the carnival rides. Sayreville police officers and firefighters conducted an extensive search of the carnival site and the surrounding...

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10 cases
  • State v. Lodzinski
    • United States
    • New Jersey Supreme Court
    • May 26, 2021
    ...motion for a judgment of acquittal notwithstanding the verdict under Rule 3:18-2." State v. Lodzinski (Lodzinski I ), 246 N.J. 331, 339, 359, 251 A.3d 318 (2021) (Patterson, J., concurring). All six Justices agreed that "[w]hen a defendant moves for a judgment of acquittal after the verdict......
  • State v. Lodzinski
    • United States
    • New Jersey Supreme Court
    • October 6, 2021
    ..."the scope of the evidence that should be considered in reviewing a post-verdict motion for a judgment of acquittal." State v. Lodzinski, 246 N.J. 331, 339 (2021); accord id. at 359-60 (Patterson, J., concurring). The concurring opinion stated the unanimous view of the Court that "[w]hen a ......
  • State v. Nasr
    • United States
    • New Jersey Superior Court — Appellate Division
    • June 7, 2022
    ... ... State the benefit of all favorable testimony and inferences ... to be drawn from the testimony and determine whether a ... reasonable jury could find defendant guilty beyond a ... reasonable doubt. State v. Lodzinski , 246 N.J. 331, ... 340 (2021) (Patterson, J., concurring) ...          In ... reviewing a decision on a motion for acquittal, "the ... trial judge is not concerned with the worth, nature[, ] or ... extent (beyond a scintilla) of the evidence, but only with ... ...
  • State v. Lodzinski
    • United States
    • New Jersey Supreme Court
    • December 28, 2021
    ...in its entirety, including the evidence that defendant presented," a standard that conforms with "federal constitutional norms." Id. at 340, 359-60. Court split three-three on the application of the proper standard, and the judgment of the Appellate Division was affirmed "by an equally divi......
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