State v. Lodzinski

• Decision Date: 07 August 2019
• Docket Number: DOCKET NO. A-2118-16T2
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Michelle LODZINSKI, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

467 N.J.Super. 447

254 A.3d 674

STATE of New Jersey, Plaintiff-Respondent,

v.Michelle LODZINSKI, Defendant-Appellant.

DOCKET NO. A-2118-16T2

Superior Court of New Jersey, Appellate Division.

Argued April 1, 2019

Decided August 7, 2019

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

Joie D. Piderit, Assistant Prosecutor, argued the cause for respondent (Andrew C. Carey, Middlesex County Prosecutor, attorney; Joie D. Piderit, of counsel and on the brief).

Before Judges Messano, Fasciale and Rose.

The opinion of the court was delivered by MESSANO, P.J.A.D.

On May 25, 1991, defendant Michelle Lodzinski reported that her son, five-year-old Timothy (Timmy) Wiltsey, went missing while both were attending a Memorial Day carnival in Sayreville. Search efforts began immediately, they became widespread, and descriptions of Timmy, the clothing and Teenage Mutant Ninja Turtles (TMNT) sneakers he was wearing, and his continued disappearance received national media attention. In October 1991, a schoolteacher walking in the area of Olympic Drive, near the Raritan Center industrial complex in Edison, found a child's TMNT sneaker; believing it might be related to the case, he provided it to law enforcement authorities. Defendant had worked for a company in Raritan Center for approximately six months in the late 1980s.

Police were able to match the model number of the sneaker to a shoebox defendant provided shortly after Timmy's disappearance. When first shown the sneaker, defendant said it was not her son's, describing features that distinguished it from the sneakers Timmy was wearing. In November 1991, defendant returned to view the sneaker a second time and told authorities it could be her son's. She did not disclose, however, that she had worked in Raritan Center. Also in November 1991, police and an FBI agent assigned to the case searched the area on foot near where the sneaker was found, but they discovered nothing of significance.

FBI agent Ron Butkiewicz and police officers returned to the same general area on April 23, 1992, and the following day, April 24, and found a matching sneaker and a pillowcase. Approximately 150 yards away, and across Olympic Drive, they found Timmy's skeletal remains in the stagnant water of Red Root Creek, a tributary of the Raritan River. They also discovered remnants of his clothing, a shovel and a TMNT balloon, like Timmy sometimes kept in his bedroom at home.

Approximately twenty-five feet above the remains, embedded in the soil in the bank of the creek, Butkiewicz found a blue blanket with multi-colored, metallic fibers. Although FBI testing on the blanket revealed nothing of evidential value, years later, a New Jersey State Police forensic scientist identified metallic fibers found on the pillowcase as being similar to those in the blanket, although he never performed a full trace analysis. In 1992, defendant and her parents could not identify the blanket, but, twenty-years later, detectives showed the blanket to three women who babysat Timmy in the late 1980s and early 1990s; they identified it as coming from defendant's home. Police also showed the blanket to several other witnesses when the investigation was reopened, but none of them could identify it.

The medical examiner who examined the remains at the scene, but died before trial, could not reach a conclusion about the cause of Timmy's death. However, another medical examiner, Dr. Geetha Natajarian, who reviewed the autopsy reports, photographs, and investigative and other forensic reports, testified. She, too, could not determine a cause of death, but through a process of elimination, opined that the manner of Timmy's death was a homicide. A forensic anthropologist, Donna Fontana, opined that Timmy's body had decomposed where it was found, at a "surface burial" site.

Although defendant was immediately a suspect in the investigation of Timmy's disappearance, and remained so after the authorities found his remains, she never admitted having a role in either his disappearance or his death. Within the first two months after her son's disappearance, however, defendant provided numerous statements that conflicted with the account she first provided on the night of the carnival, i.e., that she went to purchase a soda and Timmy simply disappeared.

On June 6, 1991, defendant told authorities that two men abducted Timmy. The next day, she claimed that a woman she knew only as "Ellen" was at the carnival and offered to watch Timmy as defendant purchased her soda. Two men accompanied Ellen. Defendant described them, but did not know who they were. Initially, defendant claimed the trio just disappeared with Timmy. In a later version, she said one of the men threatened her with a knife and told her not to say anything or they would harm Timmy.

Twenty-three years after Timmy's disappearance, a Middlesex County grand jury indicted defendant in a single count charging her with the first-degree murder of her son. Trial proceeded between March and May 2016. At the close of the State's case, defendant moved for a judgment of acquittal pursuant to Rule 3:18-1, which the judge denied. The jury found defendant guilty. After denying her motions for a judgment of acquittal notwithstanding the verdict (JNOV), Rule 3:18-2, or a new trial, Rule 3:20-1, the judge sentenced defendant to a thirty-year term of imprisonment with a thirty-year period of parole ineligibility.

Before us, defendant raises the following points:

POINT I

[DEFENDANT'S] CONVICTION SHOULD BE REVERSED, AND JUDGMENT OF ACQUITTAL SHOULD BE ENTERED, BECAUSE NO EVIDENCE SUGGESTED, MUCH LESS PROVED, THAT [DEFENDANT] CAUSED TIMOTHY'S DEATH.¹

POINT II

[DEFENDANT'S] CONVICTION SHOULD BE VACATED AND A JUDGMENT OF ACQUITTAL ENTERED BECAUSE THE STATE VIOLATED HER RIGHT TO DUE PROCESS OF LAW BY WAITING [TWENTY-THREE] YEARS TO SEEK HER INDICTMENT AND BRING HER TO TRIAL.

POINT III

THE TRIAL COURT COMMITTED ONE OR MORE REVERSIBLE ERRORS BY UNNECESSARILY AND IMPROPERLY INVOKING RULE 1:8-2(d)(1) TO REMOVE AND REPLACE A DEFENSE-LEANING JUROR WHO WAS ABLE TO CONTINUE DELIBERATING, WHEN DELIBERATIONS HAD ALREADY PROGRESSED TO AN ADVANCED STATE AND WITHOUT FINDING THAT THE RECONSTITUTED JURY WOULD BE IN A POSITION TO CONDUCT OPEN-MINDED AND FAIR DELIBERATIONS, THEREBY VIOLATING [DEFENDANT'S] RIGHT TO A FAIR TRIAL BY AN IMPARTIAL JURY.

POINT IV

ALTERNATIVELY, THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY FAILING TO DECLARE A MISTRIAL UPON LEARNING THAT

THE JURY HAD BEEN TAINTED BY OUTSIDE INFORMATION THAT HAD THE CAPACITY TO INFLUENCE THE RESULT.

We have considered these arguments in light of the record and applicable legal standards. We affirm.

I

Whether made before a verdict is returned, see Rule 3:18-1, or after, see Rule 3:18-2, the standard for deciding a motion for acquittal is the same. State v. Tindell, 417 N.J. Super. 530, 548-49, 10 A.3d 1203 (App. Div. 2011).

[T]he governing test is: whether the evidence viewed in its entirety, and giving the State the benefit of all of its favorable testimony and all of the favorable inferences which can reasonably be drawn therefrom, is such that a jury could properly find beyond a reasonable doubt that the defendant was guilty of the crime charged.

[ State v. D.A., 191 N.J. 158, 163, 923 A.2d 217 (2007) (citing State v. Reyes, 50 N.J. 454, 458-59, 236 A.2d 385 (1967) ).]

"The trial judge must consider only the existence of such evidence, not its ‘worth, nature, or extent.’ " State v. Brooks, 366 N.J. Super. 447, 453, 841 A.2d 505 (App. Div. 2004) (quoting State v. Kluber, 130 N.J. Super. 336, 342, 327 A.2d 232 (App. Div. 1974) ).

"It is generally stated that whether the motion to acquit is made at the end of the State's case or after the end of the entire case the standard is the same, i.e., only the State's proofs will be considered." State v. Sugar, 240 N.J. Super. 148, 152-53, 572 A.2d 1170 (App. Div. 1990) (emphasis added) (citing Kluber, 130 N.J. Super. at 341-42, 327 A.2d 232 ). An exception to this general rule applies when "a defendant has had the benefit of the submission to the jury of a lesser[-]included offense based upon proofs adduced on his own case," and is convicted of that lesser-included offense. Id. at 153, 572 A.2d 1170. In those circumstances, "the sufficiency of the evidence should be tested upon a consideration of the entire record and not merely a limited application of the Reyes criteria to the State's proofs." Ibid.²

"The approach is the same though the testimony is circumstantial rather than direct; indeed in many situations circumstantial evidence may be ‘more forceful and more persuasive than direct evidence.’ " State v. Mayberry, 52 N.J. 413, 437, 245 A.2d 481 (1968) (quoting State v. Corby, 28 N.J. 106, 119, 145 A.2d 289 (1958) ); accord Tindell, 417 N.J. Super. at 549, 10 A.3d 1203. Even though the evidence must be sufficient to support a finding of guilt beyond a reasonable doubt, "[i]nferences need not be established beyond a reasonable doubt." Tindell, 417 N.J. Super. at 549, 10 A.3d 1203 (citing State v. Taccetta, 301 N.J. Super. 227, 240, 693 A.2d 1229 (App. Div. 1997) ). As the Court has said:

[A] jury may draw an inference from a fact whenever it is more probable than not that the inference is true; the veracity of each inference need not be established beyond a reasonable doubt in order for the jury to draw the inference. Nevertheless, the State's right to the benefit of reasonable inferences should not be used to shift or lighten the burden of proof, or become a bootstrap to reduce the State's burden of establishing the essential elements of the offense charged beyond a reasonable doubt.

[ State v. Brown, 80 N.J. 587, 592, 404 A.2d 1111 (1979) (citations omitted).]

We apply the same legal standard as the trial judge and review the denial of a motion for acquittal...