NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6576-06T4

STATE OF NEW JERSEY,

APPROVED FOR PUBLICATION

March 16, 2011

APPELLATE DIVISION

v.

MELANIE McGUIRE,

Defendant-Appellant.

_____________________________________

March 16, 2011

Argued October 27, 2010 - Decided

Before Judges Fuentes, Ashrafi and Nugent.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 05-10-164-S and 06-10-116-S.

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 brief).

The opinion of the court was delivered by

ASHRAFI, J.A.D.

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.

I.

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 indictment.

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 parole.

II.

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 PROPERLY.

C. THE TRIAL COURT FAILED TO INVESTIGATE

EVIDENCE THAT JURORS MAY HAVE BEEN

POSTING TO INTERNET MESSAGE BOARDS

DURING DELIBERATIONS.

D. THE TRIAL COURT APPLIED THE WRONG

STANDARD AND BURDEN OF PROOF.

II. PROSECUTORIAL MISCONDUCT REQUIRES

REVERSAL AND REMAND

A. THE STATE'S RELIANCE ON THE ABSENCE

OF EVIDENCE IT SUCCESSFULLY EXCLUDED

FROM THE CASE REQUIRES REVERSAL (NOT

RAISED BELOW).

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 MITIGATING FACTOR.

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 (2006).

To aid our assessment of plain and harmless error, we will review in detail the evidence presented at the trial.

III.

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 there.

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 defendant.

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 time.

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 one.

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 date.

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 Bill's murder.

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 time.

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 May.

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 facility.

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 defendant.

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 General."

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 anonymous communications.5

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.

IV.

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.

A.

1.

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 run.

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 chemical match.

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.

2.

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 science."

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 striation patterns.

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 distinctive marks.

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 "cliffs."

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 test