SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-4603-97T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
FRANK E. McDONOUGH,
Defendant-Appellant.
___________________________________
Argued October 11, 2000 - Decided January 26, 2001
Before Judges Skillman, Conley and Lesemann.
On appeal from Superior Court of New Jersey,
Law Division, Morris County, Indictment No.
96-05-00430-I.
William B. Smith, Assistant Deputy Public
Defender, argued the cause for appellant
(Ivelisse Torres, Public Defender, attorney;
Mr. Smith, of counsel and on the brief).
Joseph Connor, Jr., Assistant Morris County
Prosecutor, argued the cause for respondent
(John B. Dangler, Morris County Prosecutor,
attorney; Mr. Connor, on the brief).
The opinion of the court was delivered by
SKILLMAN, P.J.A.D.
Defendant was indicted together with codefendant Michelle
LeDonne for capital murder, in violation of N.J.S.A. 2C:11-
3(a)(1),(2), and other related charges. At the beginning of the
initial joint trial, the codefendant entered into a plea bargain
pursuant to which she agreed to plead guilty to reduced charges
and testify against defendant. The trial court then declared a
mistrial and defendant was subsequently tried alone. After a
trial that lasted nearly a month, defendant was found guilty of
both murders. In the capital penalty phase of the case, the jury
determined not to impose the death penalty. Thereafter, the
trial court sentenced defendant to consecutive terms of life
imprisonment, with thirty years of parole ineligibility, for each
of the murders. Defendant's convictions for conspiracy to commit
murder and a weapons offense were merged into his murder
convictions.
Defendant's convictions were based on the March 3, 1993
execution-style murders of Clayton Krause and Richard LeDonne in
a motel room in Parsippany. Krause and LeDonne both lived in the
Pittsburgh area, but stayed at the motel during the week while
they worked at a construction site in New York City. Shell
casings and bullet fragments found at the murder scene and the
autopsies of the victims indicated that the same nine millimeter
gun had been used to kill both men.
At the time of the murders, one of the victims, Richard
LeDonne, was married to codefendant Michelle LeDonne. Seven
months before, Michelle had begun an affair with defendant.
Approximately a month and a half before the murders, the
LeDonnes had purchased a $500,000 life insurance policy on the
victim's life. This policy was in addition to a $100,000 policy
on the victim's life that the LeDonnes had purchased at the time
of their marriage on February 14, 1991.
The LeDonnes lived in a duplex home. The other half of the
duplex was occupied by a distant cousin of Michelle named Anthony
Carelli, Jr., who was a drug addict with a substantial criminal
record. Carelli was also an FBI informant. Michelle moved out
of the duplex shortly after the murders, first into a newer
apartment and later into a home she purchased with some of the
proceeds from the insurance policies on her husband's life.
However, she continued to have contact with Carelli, and Carelli
got to know defendant when he visited Michelle's new home.
According to Carelli, defendant came to him sometime late in
1994 and asked if he "could get rid of a nine millimeter [gun.]"
Defendant told Carelli that the weapon was "hot." Carelli agreed
to help defendant, and Carelli sold the gun a few weeks later to
his cocaine supplier, Lamar Rodgers, in exchange for cash and
cocaine.
Shortly after selling the gun to Rodgers, Carelli told the
FBI about the transaction. The FBI determined by communications
with the Morris County Prosecutor's office that the gun Carelli
had sold to Rodgers was the same type of weapon used in the
Parsippany murders. The FBI then had Carelli attempt to
reacquire the gun from Rodgers. On February 1, 1995, Carelli had
a meeting with Rodgers, which the FBI recorded, during which
Carelli made an unsuccessful attempt to get the gun back from
Rodgers.
About one month later, on March 11, 1995, Rodgers brought
the gun to a party in the Pittsburgh area. A fight erupted
during the party, which resulted in two persons being shot to
death. In the course of this incident, Rodgers fired the nine
millimeter gun he had acquired from Carelli numerous times.
According to Rodgers, he disassembled the gun after this incident
and threw the pieces away. However, the police recovered shell
casings and bullet fragments from Rodgers' gun at this crime
scene. The State's ballistics expert, Dr. Robert Levine, a
firearms examiner with the Allegheny County Coroner's office,
concluded that the bullets fired by Rodgers in the Pittsburgh
shooting incident were fired from the same gun as the bullets
that had killed Krause and LeDonne.
At trial, Michelle LeDonne, Carelli, and Rodgers all
testified for the State against defendant. LeDonne denied that
she had been involved with defendant in planning the murders.
However, she testified that defendant told her a week after the
murders that he had killed her husband. According to LeDonne,
defendant told her he had driven from the Pittsburgh area to the
Parsippany motel where her husband was staying. After Krause
responded to a knock on the door to the victims' room, defendant
led him into the bathroom and shot him in the head. Richard
LeDonne returned to the room a little while later, and defendant
then shot him too. According to LeDonne, defendant told her he
had committed the murders because he thought her husband had
found out about their affair and he was afraid her husband "was
going to do something to him." LeDonne also suggested that
defendant committed the murders because she had repeatedly told
him during their six month affair that she would not leave her
husband for him.
Despite being told by defendant that he had murdered her
husband, LeDonne continued her intimate relationship with him.
In fact, LeDonne and defendant lived together, for at least a
substantial part of the time, from the date of the murder until
their arrests more than two years later. When the police
executed the warrants for the arrests of defendant and LeDonne
and the search of their homes, they discovered defendant's
clothing and other personal belongings in one of LeDonne's
bedrooms and other evidence that indicated he and LeDonne were
still living together. The State also presented evidence that
during the two-year period following the murders, defendant and
LeDonne maintained a lavish lifestyle financed by proceeds from
the life insurance policies on Richard LeDonne's life, which
included purchasing a home, a Cadillac and a Corvette, and
enjoying a lavish vacation in Florida.
Defendant rested without presenting any evidence, and after
summations, the jury found him guilty of both murders.
On appeal, defendant presents the following arguments:
I. THE ERRONEOUS ADMISSION OF TESTIMONY TO
THE EFFECT THAT WARRANTS HAD BEEN ISSUED
FOR THE ARREST OF DEFENDANT AND MICHELLE
LEDONNE AND FOR THE SEARCH OF
DEFENDANT'S HOME AND THE HOME HE SHARED
WITH LEDONNE REQUIRES REVERSAL SINCE IT
SUGGESTED TO THE JURORS THAT A JUDGE HAD
AT SOME POINT HEARD THE EVIDENCE AGAINST
DEFENDANT AND LEDONNE AND HAD DETERMINED
THAT SUFFICIENT CAUSE EXISTED TO PLACE
THEM UNDER ARREST AND TO SEARCH THEIR
HOMES. (Not Raised Below)
II. REVERSAL IS REQUIRED DUE TO
PROSECUTORIAL MISCONDUCT DURING OPENING
STATEMENT, TRIAL AND SUMMATION. (Not
Raised Below)
III. THE TRIAL JUDGE ERRED WHEN HE PREVENTED
DEFENDANT FROM PRESENTING EVIDENCE
SUPPORTING THE ADMISSIBILITY OF PROOF OF
THE RESULTS OF MICHELLE LEDONNE'S
POLYGRAPH TESTS.
IV. THE CUMULATIVE EFFECT OF THE ERRORS SET
FORTH IN POINTS I THROUGH III, SUPRA,
REQUIRE REVERSAL.
V. DEFENDANT'S SENTENCE ON THE MURDER
CONVICTIONS MUST BE REVERSED SINCE THE
COURT ERRONEOUSLY FOUND THE AGGRAVATING
FACTOR SET FORTH IN N.J.S.A. 2C:44-1a(2)
TO BE PRESENT.
We conclude that defendant's arguments are without merit and
therefore affirm his conviction and sentence.
Defendant argues that the admission of testimony indicating that warrants were issued for his arrest and that of LeDonne, and for searches of their homes, requires a new trial because that testimony suggested to the jury that a judge had found sufficient cause to justify the arrests and searches. Defendant did not object at trial to the investigating officers' passing references to the arrest and search warrants or request a cautionary instruction. Therefore, defendant would be entitled to a new trial only if those references were clearly capable of producing an unjust result. R. 2:10-2.
In support of this argument, defendant relies upon State v. Milton, 255 N.J. Super. 514 (App. Div. 1992) and State v. Alvarez, 318 N.J. Super. 137, 145-48 (App. Div. 1999), in which this court held that references to arrest and search warrants suggested that a judge had found that the defendants were involved in criminal activity and that this was clearly capable of producing an unjust result. However, in State v. Marshall, 148 N.J. 89, 239-40, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed.2d 88 (1997), our Supreme Court squarely rejected this argument:
Defendant claims that trial counsel should have moved in limine to preclude references to the search warrants in the presence of the jury. Defendant also claims that trial counsel should have objected to police testimony that the search of James Davis's home was executed pursuant to a search warrant. Finally, defendant claims that the prosecutor's reference to the issuance of a search warrant for defendant's telephone records constituted an impermissible reference to a judicial finding of probable cause that defendant was involved with the murder of Maria Marshall.
We find those claims to be without merit. They have in common the proposition that the jury should be shielded from knowledge that search warrants have been issued in a criminal matter because the prior judicial determination of probable cause may influence the jury to assume guilt. We are aware of no authority in support of such a rule. We are satisfied that a properly instructed jury will not presume guilt based on the issuance of a search warrant. We note, moreover, that the fact that a warrant was issued might necessarily be put before a jury in order to establish that the police acted properly.
Defendant's reliance on State v. Milton, 255 N.J. Super. 514, 605 A.2d 757 (App. Div. 1992), is misplaced. That case dealt with a prosecutor's reference to a search warrant that had the capacity to mislead the jury. Defendant does not claim that any reference to search warrants in these proceedings was misleading, and we are satisfied from our own review of the record that the references of which defendant complains were accurate.
Insofar as this court's rationale in Milton and Alvarez may conflict with Marshall, we are of course required to follow the Supreme Court's decision in Marshall.
In any event, this case is distinguishable from both Milton and Alvarez. In Milton, the defendant was charged with drug offenses based on evidence obtained in a search of a house that he occupied with his parents and two brothers. The defense was that the drugs found in the search belonged to one of the defendant's brothers. We concluded that the reference during the State's case to a warrant to search the house was not objectionable. 255 N.J. Super. at 520. However, we reversed the defendant's conviction because the State also presented testimony concerning an unexecuted warrant to search his person. We concluded that this testimony was unnecessary to the presentation of the State's case and that it implied that the State had presented undisclosed evidence to the issuing judge that defendant was likely to be in possession of drugs:
[T]he defendant was unquestionably prejudiced by the mention of the existence of a warrant to search his person. The natural inference from the mention of the warrant itself, confirmed by the cautionary instruction of the trial judge, was that sufficient independent proof had been presented to a neutral judge to believe that defendant would be found in possession of drugs.
[Ibid.]
In Alvarez, the defendant was convicted of various weapons
offenses based on evidence obtained in a search of a house where
he resided together with other transients. The State presented
evidence that the search was conducted pursuant to a warrant and
that there also was a warrant for defendant's arrest before the
search was conducted. The State did not present any evidence
concerning the basis for the issuance of either warrant. The
defense was that the weapons were not found in defendant's own
bedroom and could have belonged to any of the various other
persons who resided in the house. We concluded that evidence of
the search warrant was prejudicial because it "suggest[ed] that a
judicial officer with knowledge of the law and the facts believed
that evidence of criminality would be found in defendant's
room[,]" and that "the repetitive references to the arrest
warrant for defendant suffer[ed] the exact infirmities we
condemned in Milton." 318 N.J. Super. at 148.
In short, the evidence of the warrants in Milton and Alvarez
not only indicated that a judge had found sufficient basis to
justify their issuance, but also implied that the State had
presented evidence to the judge that was not introduced at trial
which indicated that the defendant was likely to be in possession
of contraband. Consequently, the evidence of the warrants in
Alvarez and Milton had the same capacity for prejudicing the
defendant as the hearsay evidence of an informer's tip that the
Court found to constitute reversible error in State v. Bankston,
63 N.J. 263, 271 (1973), -- that is, that "a non-testifying
witness has given the police evidence of the accused's guilt."
In fact, Bankston was the sole authority cited by the court in
Milton to support its conclusion that evidence of the warrant to
search the defendant was inadmissible. 255 N.J. Super. at 520.
In contrast, the passing reference to the warrants for
LeDonne's and defendant's arrests and the searches of their homes
did not imply that the State had presented any evidence to the
issuing judge that was not also heard by the jury. The jury
heard extensive evidence concerning the evidence obtained in the
lengthy police investigation that preceded issuance of the
warrants. This evidence included the large insurance policies on
Richard LeDonne's life, the relationship between Michelle LeDonne
and defendant, the information Carelli furnished the FBI that
defendant had given him a gun he described as "hot," which was
the same type of gun as the murder weapon, and a sworn statement
by Rodgers concerning his purchase of the gun from Carelli and
the discharge of the gun during the shooting incident in
Pittsburgh. The jury also heard evidence that before the
warrants were issued in May 1995, Dr. Levine, the firearms
examiner in the Allegheny County Coroner's office, had concluded
that the bullets fired by Rodgers in the March 11, 1995 shooting
incident in Pittsburgh were fired from the same gun used in the
murders. Thus, the implication that the State had presented
evidence to the issuing judge that was not presented at trial,
which we found to require exclusion of the evidence of the search
and arrest warrants in Milton and Alvarez, is not present in this
case. Instead, the jury heard a wealth of compelling evidence
against defendant and the codefendant which obviously had been
obtained before the warrants were issued. Therefore, this case
is controlled by the Court's holding in Marshall that the jury
does not have to be "shielded from knowledge that . . . warrants
have been issued in a criminal matter because the prior judicial
determination of probable cause may influence the jury to assume
guilt." 148 N.J. at 240.
[At the court's direction, its discussion of
defendant's other arguments has been omitted from the
published opinion.]
Affirmed.