DOCKET NO. A-1086-11T4
Marcia Blum, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Blum, on the brief). Frank J. Ducoat, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Mr. Ducoat, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo, Sabatino and Fasciale.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 09-12-2104.
Marcia Blum, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Blum, on the brief).
Frank J. Ducoat, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Mr. Ducoat, on the brief). PER CURIAM
Tried by a jury, defendant Leonardo Buccheri was found guilty of second-degree passion/provocation manslaughter, N.J.S.A. 2C:11-4(b)(2), as a lesser-included offense of murder; second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); and fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-3(d). After the verdict was returned, defendant pled guilty to second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b), without any recommendation as to sentencing. Following the appropriate merger, defendant was sentenced on the manslaughter conviction to a ten-year term with an eighty-five percent parole ineligibility period pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2; a concurrent eighteen-month term on the fourth-degree weapons offense; and a consecutive five-year term with a five-year period of parole ineligibility on the "certain persons" offense. Defendant's aggregate sentence then was a fifteen-year term, thirteen and one-half years to be served without parole. Defendant appeals, and we affirm.
Defendant was acquitted of third-degree hindering apprehension or prosecution, N.J.S.A. 2C:29-3(b)(1).
According to the State's proofs, on August 10, 2008, defendant and his fiancée, Soveira "Sophie" Rojas, and their children attended a summertime reunion barbeque for defendant's motorcycle club. Most people were eating, drinking and having a good time. Toward the end of the day, however, defendant and another man got into a heated verbal argument. Sophie, who appeared "intoxicated" to Harriet Collazo, the girlfriend of another club member, intervened and tackled defendant to the ground to prevent him from hitting the other man.
The picnic was winding down at that point, and everyone was packing up. Another couple, Vanessa and Vic, drove defendant's seven-year-old son and three-year-old daughter, and Sophie's nine-year-old son, back to defendant's Jersey City home. As defendant and Sophie were leaving the parking lot, he drove over a concrete parking barrier and got stuck. As several people assisted in lifting the car off the barrier, Sophie got into the driver's seat to prevent defendant, who she believed was drunk, from driving, and locked the door. After arguing with Sophie about who would drive, defendant eventually got into the passenger's seat and Sophie drove them out of the park.
Collazo and her boyfriend also headed to defendant's house and arrived about twenty minutes before defendant. Vanessa, Vic, and the children were already there. When defendant and Sophie arrived, defendant was driving. As defendant exited the car, he looked angry and had "a whole bunch of scars, scratches in his face and head," which he did not have when he got into the car at the park. Sophie's "face was blotchy" as if she had "been smacked"; her ear was red; her chest was scratched; and she was crying and holding her thumb, which was swollen. A portion of her hair had also been ripped out. Collazo consoled her while defendant brought items from the barbeque into the house. When defendant heard Sophie complaining about her hand, he said, "That ain't fucking nothing. I'm sorry. But that ain't fucking nothing, I have had worse, it will heal."
Shortly thereafter, Vanessa and Vic left, and about thirty minutes later, Collazo and her boyfriend also departed, leaving only defendant, Sophie, and the three children at the house. On their return to the Bronx, Collazo's boyfriend got a phone call informing him that Sophie had died.
Defendant called 911 at 7:43 p.m. and told the dispatcher, "I have an emergency, I have a gunshot wound at 312 Webster Avenue" and that "it was an accident." He reported that Sophie "shot herself by accident, she grabbed the firearm . . . she put it to herself, she pulled the trigger" and that "she's bleeding profusely, she's throwing up blood from her mouth." Defendant stayed on the line as the 911 dispatcher told him to continue to monitor her condition and put a clean cloth or towel over her wound. Defendant said that Sophie "was arguing, she was saying that she didn't wanna live anymore but we were at a barbeque and she was drinking a little bit." A few minutes into the call, defendant reported that Sophie had stopped breathing and that he didn't feel a pulse. He also told the dispatcher, "I don't know where the gun came from. I just empt[ied] the clip out I'm dumping all the bullets." According to the dispatcher, defendant sounded hysterical and his voice was so high-pitched that she thought he was a woman.
Jersey City police officer Kevin O'Connell was the first to respond at 7:49 p.m. When defendant eventually answered the door, he was talking on his cell phone — evidently to the 911 dispatcher — and was clearly upset and had blood on his hands, face, and clothing. Shortly thereafter, other police officers and an ambulance arrived, followed by personnel from the Prosecutor's Office. Defendant directed them to the upstairs middle bedroom, where O'Connell and another officer found Sophie lying in a pool of blood, not breathing, on the bedroom floor very close to the doorway. They also observed a gun and shell casing on the floor. The paramedics pronounced Sophie dead at 8:02 p.m.
Thereafter, two officers brought defendant outside and sat him in a police car with the door left open. Without being questioned, defendant started talking about the incident to Jersey City Police Detective Keith Armstrong. Defendant said that he had gone down to the car to look for Sophie's ring and when he returned with it, Sophie was on the bedroom floor crying. Defendant was standing in the bedroom doorway and "tried to get to [Sophie,]" but she was on the floor crying and holding the gun, stating something to the effect of "this is what [I] want."
A third officer, who had remained outside with defendant, described him as voluble and "rambling," but noted that he did not appear to be drunk.
Although defendant was not under arrest, Detective Armstrong read him his Miranda rights. Defendant continued to talk about the incident, stating that Sophie had stood at the foot of the bed near the closet and held the gun in her right hand with her left hand over the right, and that she had the gun to her chest and cocked it back and that it must have gone off by accident. After the gun had gone off, he grabbed Sophie and held her and tried to stop the bleeding, and then called 911.
Detective Armstrong provided defendant with a written Miranda rights and waiver form, which he signed at 8:38 p.m. Again, without being questioned, defendant further explained that he had met Sophie through the Myspace social networking website in January 2010, and that she had been living with him for about a month. He kept the gun, a black .45-caliber handgun, which he had gotten from a former tenant who owed him money, in his top drawer loaded with eight bullets. According to Armstrong, defendant did not appear drunk or upset, but was "rambling on, stating things over and over."
According to defendant's seven-year-old son, who testified on behalf of his father at trial, he had been home about ten to fifteen minutes and was at the foot of the stairs playing with Sophie's son when he heard a loud "pop" sound come from his father's bedroom. Then, he heard his father say, in a "moanish, saddish sort of voice" that "nobody would know, why did you do that?" His father never came downstairs.
Crime Scene Investigator Detective Michael Crowe arrived at the scene at around 8:58 p.m., took photographs and collected evidence. He recovered the .45-caliber handgun, which had blood stains on it, and an eight-round-capacity magazine, removed from the handgun, containing three live rounds, three blood-stained live rounds on the floor, one spent shell casing, and one spent bullet. These items were found between Sophie's body near the doorway and the bed, and not at the foot of the bed. Broken jewelry was also on the floor. No suicide note was found.
New Jersey State Police Investigator James Joyce, a firearms expert, examined the handgun, the magazine, the discharged shell and bullet, and the seven unfired cartridges collected from the scene. Joyce found that the gun was in proper working condition, and explained that it would take five-and-one-half pounds of pressure to fire it in single action (with the hammer manually cocked back), and ten pounds of pressure in double action (without the hammer cocked back). He also observed that the gun's serial number had been removed.
Joyce concluded that the bullet recovered from the scene had been discharged from the gun. Of the seven live rounds recovered, one had a small indentation suggesting that it may have been struck by the firing pin, but not with enough force to discharge the cartridge from the gun. Such a small indentation can also be made when a cartridge is cycled in the chamber of the gun. Joyce also conducted a test firing, known as a pattern test, to determine how far the front of the barrel of the gun was from its trigger when it was fired. With the same type of ammunition found at the scene, Joyce fired rounds into a cloth at three-inch intervals, beginning at "contact," where the muzzle actually touches the surface, and ending at 36 inches, at which very few particles are left around the surface. The results of that testing were then photographed and submitted to the medical examiner's office.
On August 11, 2008, Dr. Jennifer Amolat performed the autopsy of Sophie. Regional Medical Examiner/Assistant State Medical Examiner Dr. Lyla E. Perez, who was in charge when the autopsy was conducted, and who testified at trial, also examined the body and reviewed Dr. Amolat's autopsy report, which included photographs taken during the examination. Both Dr. Amolat and Dr. Perez determined the cause of death to be a gunshot wound to the upper right chest.
The manner of death was left pending because the autopsy findings were inconsistent with other information the medical examiner's office had received indicating the manner of death was suicide. Yet, the absence of gunpowder inside the bullet wound indicated that the gun was not pressed tightly against the skin when it was fired. Instead, there was stippling, or gunpowder residue, around the entry wound, which Dr. Perez testified is unusual for suicide wounds. The short exit wound indicated that Sophie's back was pressed against a very hard object, which Dr. Perez testified would not have been the floor.
On October 20, 2008, Dr. Perez determined the manner of death to be homicide based on the distance of the muzzle and the positioning of the gun. She formed this opinion only after she compared the autopsy photographs with the results of the test firing performed on the gun, which led her to conclude that the muzzle of the gun had been three to six inches away from where the bullet entered Sophie when it was fired, and that the stippling was perpendicular to the skin. She thus concluded that, in her opinion, it is "very unlikely that a person shooting herself will hold the gun — the gun at that particular angle and cause this gunpowder residue, stippling. It is usually very much a contact wound when there is a suicidal shot."
The autopsy also turned up evidence that Sophie died from aspirating blood, in which case her death would not have been instantaneous. Dr. Perez testified that it may have taken a "few minutes" for Sophie to die after being shot.
The examination also exposed other injuries to Sophie, namely, bruises and scrapes on her earlobe, thumb, arms, elbow, feet, and knees, as well as a broken fingernail. There was also subcutaneous bleeding in her lower abdomen that was most likely the result of blunt force trauma. The injuries were consistent with a physical struggle.
The toxicology report revealed that Sophie had a blood-alcohol level of 0.125. Although Sophie's hands were swabbed for gunpowder residue, no tests were conducted on that evidence. Nor was the gun tested for fingerprints.
On appeal, defendant raises the following issues:
I. WITHOUT MEDICAL BASIS, THE MEDICAL EXAMINER TESTIFIED THAT THE GUNSHOT "WAS NOT SELF-INFLICTED," THUS DIRECTLY CONTRADICTING THE DEFENSE CLAIM THAT IT
WAS SELF-INFLICTED. (PARTLY RAISED BELOW)
II. THE MEDICAL EXAMINER'S OPINION THAT THIS WAS NOT SUICIDE AND WAS THEREFORE HOMICIDE WAS NET OPINION.
III. THE JURY SHOULD HAVE BEEN CHARGED ON THE AFFIRMATIVE DEFENSE OF PREVENTION OF SUICIDE UNDER N.J.S.A. 2C:3-7(e). (NOT RAISED BELOW)
IV. DESPITE DEFENDANT'S REPEATED STATEMENTS THAT SOPHIE SHOT HERSELF ACCIDENTALLY, THE JURY WAS NEVER INSTRUCTED ON THAT DEFENSE. (NOT RAISED BELOW)
V. THERE WAS INSUFFICIENT EVIDENCE TO WARRANT AN INSTRUCTION, AND CONVICTION, ON PASSION/PROVOCATION MANSLAUGHTER. (NOT RAISED BELOW)
VI. IT WAS FLAGRANT MISCONDUCT FOR THE PROSECUTOR TO MANUFACTURE THE CHARGE THAT DEFENDANT "WAITED UNTIL [SOPHIE] WAS DEAD TO CALL 911." (NOT RAISED BELOW)
VII. THE CUMULATIVE EFFECT OF THE ERRORS AT DEFENDANT'S TRIAL DEPRIVED HIM OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. (NOT RAISED BELOW)
VIII. IMPOSITION OF THE MAXIMUM TERM ON THE MANSLAUGHTER CONVICTION AND A CONSECUTIVE TERM ON THE GUN CHARGE, AMOUNTING TO AN AGGREGATE SENTENCE OF 13 1/2 YEARS WITHOUT PAROLE, IS EXCESSIVE.
Defendant contends it was reversible error to admit Dr. Perez's expert testimony because it critically failed to account for the possibility of an accidental shooting. As such, the omission of this vital link reduces the expert's testimony to no more than a "net opinion." We disagree.
In the first place, no such objection was voiced during Dr. Perez's testimony, and only raised for the first time during the post-verdict motion for a new trial, when it was soundly rejected. And for good reason. The key issue at trial was whether the gunshot wound was self-inflicted or caused by defendant. In opining about the manner of death, Dr. Perez ruled out both "suicide" and "self-inflicted" injury. To be sure, Dr. Perez never explicitly discussed the possibility that Sophie accidentally shot herself, nor did she expressly indicate whether she meant "self-inflicted" to encompass accidental self-inflicted injury or was simply using the term interchangeably with "suicide." However, by concluding that the death was a homicide, Dr. Perez clearly implied that the death was not self-inflicted, either intentionally or unintentionally. Indeed, in determining the victim's death to be a homicide, Dr. Perez testified that it is "very unlikely that a person shooting herself" would have held the gun from that angle and distance. This reasoning seems no less applicable to an unintentional self-inflicted bullet wound.
But even assuming the expert failed to rule out an accidental self-inflicted shooting, that fact does not render her opinion an inadmissible "net opinion." As a threshold matter, it is undisputed that Dr. Perez was qualified to offer her expert opinion as to the cause and manner of death, and she testified to such without objection, based on her occupational experience and specialized scientific knowledge in forensic pathology acquired over many years. See Bellardini v. Krikorian, 222 N.J. Super. 457, 463 (App. Div. 1988); Correa v. Maggiore, 196 N.J. Super. 273, 282 (App. Div. 1984).
In addition to her qualifications to testify as an expert, Dr. Perez formed her opinion as to the cause and manner of death based on facts and data. See Biunno, Current N.J. Rules of Evidence, comment 2 on N.J.R.E. 702 (2002). N.J.R.E. 703 provides the permissible bases of expert opinion:
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.As construed by applicable case law, N.J.R.E. 703 requires that an expert's opinion be based on facts, data, or another expert's opinion, either perceived by or made known to the expert, at or before trial. Buckelew v. Grossbard, 87 N.J. 512, 524 (1981); Nguyen v. Tama, 298 N.J. Super. 41, 48-49 (App. Div. 1997). In this regard, the facts need not be admissible in evidence if they are "of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject." State v. McBride, 213 N.J. Super. 255, 269 (App. Div. 1986) (internal quotation marks omitted); see also State v. Townsend, 186 N.J. 473, 494 (2006).
Conversely, an expert opinion lacking in such foundation and consisting of bare conclusions unsupported by factual evidence, or by reasonable inferences drawn from the record, is inadmissible as a "net opinion." Johnson v. Salem Corp., 97 N.J. 78, 91 (1984); Buckelew, supra, 87 N.J. at 524; Rosenberg v. Tavorath, 352 N.J. Super. 385, 401 (App. Div. 2002). The net opinion rule requires an expert "to give the why and wherefore" of his or her opinion, rather than a mere conclusion. Jimenez v. GNOC, Corp., 286 N.J. Super. 533, 540 (App. Div.), certif. denied, 145 N.J. 374 (1996), overruled in part on other grounds, Jerista v. Murray, 185 N.J. 175 (2005). A trial court "may not rely on expert testimony that lacks an appropriate factual foundation and fails to establish the existence of any standard about which the expert testified." Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 373 (2011).
In this regard, in denying defendant's motion for a new trial based on the claim that Dr. Perez offered a net opinion, the judge found:
In this case, the record is clear that the expert's testimony was based on the factual data gathered from the deceased's autopsy. The State's expert, Dr. Lyla Perez, personally reviewed the autopsy performed by Dr. Jennifer Amolat; thus, it follows that Dr. Perez's testimony was based on facts and data perceived by her through the victim's autopsy, which was itself performed by a doctor qualified to conduct autopsies.
Furthermore, Dr. Perez testified that she discussed her opinion with Dr. Jennifer Amolat. . . .
Finally, Dr. Perez testified that she based her opinion on her observance of pictures of the gunshot wound. As stated before, an expert may be qualified to give their opinion based on occupational experience or knowledge acquired over a period of years; Dr. Perez clearly falls within this category, having previously conducted numerous autopsies on gunshot victims. . . .
The judge went on to state that Dr. Perez "testified in detail about the gunshot [wound] to the chest suffered by the victim," including "the appearance of the stippling around the wound, the location of the entrance wound, the angle of the entrance of the wound, the abraded and contused [exit] wound, and finally a review of gunshot pattern testing which was conducted by the State Police."
We agree. Dr. Perez relied on her extensive experience in forensic pathology, her personal observations, and facts and data supplied to her by others in reaching her conclusion that Sophie's manner of death was homicide. While she did not conduct the autopsy of Sophie herself, she examined the body and reviewed the autopsy report and photographs taken during the examination, and performed her own independent analysis comparing the results of the autopsy with the results of a test firing on the gun.
Despite the fact that Dr. Perez provided a factual basis and supporting data for her opinion, defendant ascribes fatal fault to her failure to account for the possibility that Sophie accidentally shot herself. Yet, "[t]he failure of an expert to give weight to a factor thought important by an adverse party does not reduce [her] testimony to an inadmissible net opinion if [s]he otherwise offers sufficient reasons which logically support [her] opinion." Rosenberg, supra, 352 N.J. Super. at 402; see also State v. Freeman, 223 N.J. Super. 92, 115-16 (App. Div. 1988), certif. denied, 114 N.J. 525 (1989). "Rather, such an omission merely becomes a proper 'subject of exploration and cross-examination at a trial.'" Rosenberg, supra, 352 N.J. Super. at 402 (quoting Rubanick v. Witco Chem. Corp., 242 N.J. Super. 36, 55 (App. Div. 1990), mod. on other grounds, 125 N.J. 421 (1991)); see also Hisenaj v. Kuehner, 194 N.J. 6, 23-25 (2008).
Nor does an expert have to produce more evidence than is necessary to support her opinion. Glenn Wall Assocs. v. Twp. of Wall, 99 N.J. 265, 280 (1985). Rather, "[i]nsufficient factual support for an opinion undermines its foundation and justifies its rejection by the trier of fact." Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment 4 on N.J.R.E. 703 (2012) (citing Champion Dyeing & Finishing Co. v. Centennial Ins. Co., 355 N.J. Super. 262, 273-74 (App. Div. 2002)).
We reiterate that an expert's testimony is not inadmissible merely because it fails to account for some particular condition or fact which the adversary considers relevant. The adversary may on cross-examination supply the omitted conditions or facts and then ask the expert if his opinion would be changed or modified by them. See State v. Doyle, 77 N.J. Super. 328, 339 (App. Div. 1962), aff'd, 42 N.J. 334 (1964). Thus, even assuming that Dr. Perez's findings did not consider the possibility of an "accidental" self-inflicted wound, this would have been an appropriate matter to ask the expert about on cross-examination.
In fact, on cross-examination, Dr. Perez made clear that the absence of a close contact wound does not completely rule out suicide as a possibility, but is "inconsistent" with suicide. Dr. Perez admitted that even a small person could grip the gun and point it at themselves with the muzzle three to six inches away. She opined, however, that it is "very unlikely that a person shooting herself will hold . . . the gun at that particular angle and cause this much gunpowder residue, stippling."
it is within the special function of a jury to decide if the facts on which the answer of an expert is based actually exists, and the value or the weight of the testimony of the expert is dependent upon and no stronger than the facts on which it is predicated.In other words, it is for the jury to determine the credibility, weight and probative value of the expert's testimony. Hisenaj, supra, 194 N.J. at 23-25; Savoia v. F.W. Woolworth Co., 88 N.J. Super. 153, 162 (App. Div. 1965). The opinion of an expert can rise no higher than the facts and reasoning upon which it is based. Johnson, supra, 97 N.J. at 91. Indeed, even if the testimony of an expert is uncontradicted, it is still for the jury to exercise its independent judgment in considering the matter. Chattin v. Cape May Greene, Inc., 216 N.J. Super. 618, 640 (App. Div.), certif. denied, 107 N.J. 148 (1987).
[Id. at 511 (internal quotation marks omitted).]
Here, the trial judge correctly instructed the jury on its proper role. The judge twice gave the jurors the model charge on expert testimony, explaining that the jury is not bound by an expert's opinion and may give it as much weight as they think is proper. The judge told the jurors that in reaching that determination, they may consider the reasons given for the opinion, the qualifications and credibility of the expert, and the facts upon which the opinion is based.
Moreover, Dr. Perez was subject to cross-examination and the defense had every opportunity to undermine her opinion and draw out the distinction between intentional and accidental self-inflicted injury. In fact, as noted, on cross-examination, Dr. Perez admitted that it was possible Sophie held the gun at the distance it was determined to be from her body and that "it is certainly a possibility that it was a suicide or by the hand of the decedent."
Under all of these circumstances, we conclude that the absence of any reference to an accidental self-inflicted wound does not reduce Dr. Perez's testimony to an inadmissible net opinion. The expert gave sufficient reasons, based on facts and data, to logically support her opinion.
Defendant contends that Perez's reference to "police report[s], statement[s], witnesses" in forming her expert opinion violated defendant's Sixth Amendment right of confrontation by allowing the jury to speculate that the State had additional evidence of her guilt not presented at trial. We disagree.
Defendant never objected to this brief portion of Dr. Perez's testimony, Rule 1:7-2, and therefore his belated claim on appeal is governed by the plain error standard, Rule 2:10-2; State v. Winder, 200 N.J. 231, 252 (2009).
Moreover, defense counsel asked Dr. Perez on cross-examination about other information she considered in reaching her ultimate conclusion, information defense counsel characterized as "not science." She testified that she considered "police reports and evidence, as well as testimony." The prosecutor objected, but neither the basis for that objection nor the sidebar that followed are part of the record. Defense counsel then had Dr. Perez confirm again that she did not include what evidence she reviewed in reaching her conclusion in any report. On re-direct, Dr. Perez testified that this "other information" consisted of reports from medical examiner's office investigators who went to the crime scene, crime scene photographs, police reports, and the test pattern results.
Defendant now presents her Confrontation Clause challenge for the first time. While it is true that the State may not suggest that it has information of defendant's guilt it had not presented to the jury, State v. Branch, 182 N.J. 338, 351-52 (2005); State v. Bankston, 63 N.J. 263, 268-69 (1973), that is not what occurred here. Dr. Perez did not convey the substance of those "reports" or "statements" to the jury, nor act as their "conduit," but rather gave an independent expert opinion based on her review of that material and, far more importantly, her own independent testing — namely a personal examination of the body and autopsy photographs — and her comparison of those photos with the results of firearm pattern testing testified to by another expert at trial, all sources typically relied on by those in her field. See State v. Torres, 183 N.J. 554, 576-79 (2005).
As noted, as a qualified expert, Dr. Perez was permitted to consider facts and data, such as police reports and witness statements, not otherwise admissible but of the type reasonably relied upon by experts in the same field. N.J.R.E. 703; Torres, supra, 183 N.J. at 576-79. An expert "is generally permitted to detail for the trier of fact all of the materials, including films, test results, hospital records, and other experts' reports, on which he relied." Agha v. Feiner, 198 N.J. 50, 62 (2009).
More importantly, Dr. Perez did not offer this other information for the truth of the matter asserted therein. She was only responding to defense counsel's question about what information, if any, she relied on for her opinion other than the autopsy and test firing results. And in this regard, viewing Dr. Perez's testimony in its entirety, it is clear that in reaching her conclusion that Sophie's death was a homicide, she primarily relied on her own physical examination and comparison of the test firing results with the autopsy photos, rendering her reference to the other information harmless at worst, R. 2:10-2; State v. Heisler, 422 N.J. Super. 399, 423 (App. Div. 2011), and clearly incapable of leading the jury to a result it otherwise would not have reached, Winder, supra, 200 N.J. at 252. Under the circumstances, Perez's reference to this other information did not violate the Confrontation Clause.
Nor did Dr. Perez's reliance on Dr. Amolat's autopsy report, an aspect never challenged by defendant below or even on appeal. See State v. Williams, 212 N.J. 103 (2012) (grant of certification limited to the constitutional issue of "whether the admission of the testimony by the pathologist who did not perform the autopsy violated defendant's right of confrontation").
Here, Dr. Perez was the supervisor in the office and in charge of the examination. She was present at certain times during the autopsy and personally examined the body. Indeed, she "probably did" view the body when some of the photographs in the autopsy report were taken, because staff performing the autopsy would call her in at times to ask questions. Dr. Perez also reviewed the photographs and results of the final autopsy report independently and with Dr. Amolat. Moreover, Dr. Perez did not merely rely on Dr. Amolat's autopsy report but performed her own independent analysis, comparing, most critically, the autopsy photographs with the test firing results. Accordingly, unlike the testifying experts in Bullcoming v. New Mexico, ____ U.S. ____, ____, 131 S. Ct. 2705, 2709, 180 L. Ed. 2d 610, 615-16 (2011), and Williams v. Illinois, ____ U.S. ____, ____, 132 S. Ct. 2221, 2227, 183 L. Ed. 2d 89, 98 (2012), Dr. Perez's supervisory role and involvement was active, direct and meaningful, more than sufficient to allay any concerns (not, by the way, voiced by defendant herein) that she was acting simply as a conduit or stand-in for a non-testifying expert. Once again, we perceive no Confrontation Clause violation in her testimony.
Five justices in Williams, supra, agreed that the expert's testimony was properly admitted, despite that expert's reliance on another expert's written report. In its plurality decision, the Court held that "[o]ut-of-court statements that are related by the expert solely for the purpose of explaining the assumptions on which that opinion rests are not offered for their truth and thus fall outside the scope of the Confrontation Clause." Id. at ____, 132 S. Ct. at 2227-28, 183 L. Ed. 2d at 98-99.
Defendant next contends that the court should have sua sponte charged the jury on the affirmative defense of prevention of suicide, N.J.S.A. 2C:3-7(e). This argument is without merit. R. 2:11-3(e)(2). In the first place, the defense does not permit deadly force to prevent suicide and, in any event, it is not rationally based in, much less clearly indicated by, the trial evidence.
N.J.S.A. 2C:3-7(e) provides that "[t]he use of force upon or toward the person of another is justifiable when the actor reasonably believes that such force is immediately necessary to prevent such other person from committing suicide [or] inflicting serious bodily harm upon himself[.]" However, there is an exception for the use of deadly force:
The use of deadly force is not in any event justifiable under this subsection unless the actor reasonably believes that it is likely that the person whom he seeks to prevent from committing a crime will endanger human life or inflict serious bodily harm upon another unless the commission or the consummation of the crime is prevented and that the use of such force presents no
substantial risk of injury to innocent persons.
In the only case addressing this provision, we stated that the provision
"appears to be a separate justification for force used to prevent crime, but that appearance is largely illusory." Cannel, Criminal Code Annotated, Comment N.J.S.A. 2C:3-7 at 192 (2000-2001). "The subsection merely incorporates other relevant sections, . . . and its deadly force provision is a restatement of [N.J.S.A.] 2C:3-4 and [N.J.S.A.] 2C:3-5 with the additional limitation that there be no substantial risk to innocent persons." Ibid.
[State v. Hogan, 336 N.J. Super. 319, 349 (App. Div.), certif. denied, 167 N.J. 6 35 (2001).]
In other words, the statute permits force to prevent a crime or a suicide, and even allows deadly force to save the innocent from a potentially lethal attack by a third party; but under no circumstances does it permit killing someone to prevent that person from killing him- or herself. To argue otherwise is absurd as it would create a risk of death equal to the risk sought to be avoided, and that risk is unjustifiable.
But even if such a defense were available, it was not rationally based in the trial evidence. Although defendant points to his statement that the gun went off as he approached Sophie to prevent her from shooting herself, he never stated that he used forced against her. At most, "he tried to get to her, but she had the gun in her hand already, and she was stating that this is what she want[s]." In fact, defendant's own statements to the police indicate that he did not touch Sophie until after she had shot herself, at which point he held her and tried to stop the bleeding. Also absent is any proof that a third person was endangered by Sophie's actions. Thus, accepting defendant's own version of the facts, he did not even use force to prevent the suicide, and therefore the N.J.S.A. 2C:3-7(e) defense is simply not applicable.
Defendant also contends that the trial court should have sua sponte instructed the jury on the defense theory that Sophie shot herself accidentally. There was no error here, much less plain error, since no such instruction was necessary. See State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970).
In State v. Giberson, 153 N.J. Super. 241, 246 (App. Div. 1977), the court held that the defendant's theory of an accidental stabbing did not require a special instruction, and that a "sufficient instruction was inherent in the judge's statement as to the elements of the crime of atrocious assault and battery which the State was required to prove beyond a reasonable doubt."
While sometimes it may be appropriate and necessary to tailor a charge to the facts of the case in order to guide the jury's deliberations, a failure to do so will likely not amount to prejudicial error where "the facts of the case and the claims of the State and the defense [are] quite clear." State v. Angoy, 329 N.J. Super. 79, 85 (App. Div.), certif. denied, 165 N.J. 138 (2000). The "failure to tailor a jury charge to the given facts of a case constitutes reversible error where a different outcome might have prevailed had the jury been correctly charged." Reynolds v. Gonzalez, 172 N.J. 266, 289 (2002).
Here, the facts were not complex and the parties' conflicting versions were clear. Two people were in the bedroom when Sophie suffered a fatal gunshot and the only question was the shooter's identity. The jury needed no special instruction to guide their analysis of that issue. Indeed, they were made aware of the defense theory throughout the trial through defendant's various statements to police that Sophie shot herself accidentally, and those statements were highlighted for the jury during his counsel's summation.
Moreover, that the victim may have caused her own death accidentally is not a "separate" or "affirmative" defense requiring a special instruction. Rather, the claim is simply an attack on the State's proofs, namely that someone other than defendant committed the crime. Yet for each of the homicide and weapons charges, the trial judge correctly instructed the jury that the State was required to prove beyond a reasonable doubt that defendant caused Sophie's death and that he possessed the gun used to kill her. Thus, given that defendant's position was clear and the facts uncomplicated, no special instruction of the defense theory of the case was required.
In yet another first-time challenge to the court's instructions, defendant argues there was insufficient evidence to charge passion/provocation manslaughter as a lesser-included offense of murder. We disagree.
In his motion for a judgment of acquittal and a new trial, defendant argued that the manslaughter verdict was against the weight of the evidence. The judge disagreed, reasoning:
Additionally, prior to all the above evidence, testimony established a verbal and physical alter[c]ation between the victim and defendant which commenced at a barbecue attended by motorcycle club members. Defendant appeared to be intoxicated, and the decedent broke up a fight between the [d]efendant and another person. DefendantWe agree.
was apparently very upset by her conduct, and the victim insisted he not drive.
Also, testimony was admitted that the victim's child was driven home by other persons attending the barbecue, apparently due to her concern about [d]efendant's drinking. Defendant had attempted to drive and caused the vehicle to become "wedged" on a parking "stop." The victim then proceeded to drive home. Once the couple arrived home, witnesses testified [d]efendant was driving and the victim was very upset, crying, and had marks on her face which appeared to show she had been "slapped."
A trial court "shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense." N.J.S.A. 2C:1-8(e); State v. Cassady, 198 N.J. 165, 178 (2009). "Although a 'rational basis' requires more than a mere 'scintilla of evidence,' it is '[n]evertheless . . . a low threshold.'" State v. Erazo, 126 N.J. 112, 123 (1991) (quoting State v. Crisantos, 102 N.J. 265, 278 (1986)). It is the court's independent obligation to instruct on the lesser-included offense "when the facts adduced at trial clearly indicate that a jury could convict on the lesser while acquitting on the greater offense." State v. Jenkins, 178 N.J. 347, 361 (2004).
Murder is defined as a criminal homicide committed by an actor who purposely or knowingly causes death or serious bodily injury resulting in death. N.J.S.A. 2C:11-3(a)(1)-(2).
Passion/provocation manslaughter is a lesser-included offense of murder. State v. Robinson, 136 N.J. 476, 482 (1994). It is defined as "[a] homicide which would otherwise be murder under section 2C:11-3 . . . committed in the heat of passion resulting from a reasonable provocation." N.J.S.A. 2C:11-4(b)(2). Passion/provocation manslaughter has four elements: "(1) reasonable and adequate provocation; (2) no cooling-off time in the period between the provocation and the slaying; (3) a defendant who actually was impassioned by the provocation; and (4) a defendant who did not cool off before the slaying." State v. Josephs, 174 N.J. 44, 103 (2002). The first two elements are objective, and if they are supported by the evidence, the trial court should give an instruction on the offense and leave determination of the remaining two subjective elements to the jury. Ibid.
In State v. Mauricio, 117 N.J. 402 (1990), the Court found evidence of passion/provocation manslaughter sufficient to require a jury instruction on the offense where the defendant had been engaged in two violent physical confrontations with a bouncer in the space of about twenty minutes, and shot the bouncer over half an hour later. Id. at 414-15; 417-18.
Here, as well, we find a rational basis in the evidence to support a jury charge on passion/provocation manslaughter. There is proof that defendant and Sophie were engaged in a heated exchange that began at the barbeque, continued throughout the ride home and into the evening, eventually culminating in her death. There is also evidence that both had been drinking to the point Sophie was concerned about defendant driving her home. Whatever the nature of the argument at its inception, the fight escalated into a mutually violent domestic battle, as both sustained visible injuries. As to Sophie, she had been smacked, scratched and some of her hair had been pulled out, and her autopsy revealed blunt force trauma to her abdomen, consistent with a struggle. Suffice it to say, the evidence and inferences therefrom are consistent with adequate and reasonable provocation with little time, if any, for defendant to cool off. There was, accordingly, a rational basis upon which a jury could, and did, conclude that defendant killed Sophie in the heat of passion arising from a reasonable provocation.
Defendant claims the prosecutor's single comment during summation that defendant waited until Sophie was dead to call 911 was unfounded in the evidence, and therefore constituted prosecutorial misconduct. We disagree.
During summation, the prosecutor argued:
[Dr. Perez] told you, [concerning Sophie's death,] I can't tell you how long, minutes -- I don't know her health, I don't know the conditions, it wasn't instant. Why is that important? The 911 call, I told you, there's a lot of items in there, a lot of statements that you need to listen to.
You know what's important that you won't hear in there? You won't hear Sophie. She's coughing, vomiting blood he says to the EMT operator. He's checking for a pulse, he's this far away, you don't hear her coughing blood, you actually don't hear anything.
You hear the police come in downstairs, that gets picked up. Why? I say because he waited until Sophie was dead to call 911. He waited because she could still speak, [and] he didn't want the police to show up and her tell them what happened.
These are inferences you can draw from the evidence, from the time it took the police to get there from the 911 call. From what you hear and do not hear on that tape.
Once again, we apply the plain error standard to defendant's claim as he failed to object to these remarks at trial. In this context, to amount to reversible error, the prosecutor's conduct must be "so egregious as to deprive defendant of a fair trial." State v. Timmendequas, 161 N.J. 515, 575 (1999). It "must have been clearly and unmistakably improper, and must have substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense. . . . Generally, if no objection was made to the improper remarks, the remarks will not be deemed prejudicial." Id. at 575-76 (internal quotation marks and citations omitted); see also State v. Ingram, 196 N.J. 23, 42-43 (2008). On this score, we note that prosecutors are given considerable leeway in closing arguments so long as their comments are reasonably related to the evidence in the record and reasonable inferences drawn therefrom. State v. Daniels, 182 N.J. 80, 99 (2004); State v. Frost, 158 N.J. 76, 82 (1999).
With this in mind, we are satisfied that the prosecutor's challenged comment was based on reasonable inferences derived from the evidence in the record. First, the prosecutor did not misrepresent any of the evidence in the record. He correctly noted that had Sophie been coughing up blood as defendant told the dispatcher, the 911 recording would have picked it up since defendant was in the same room as the victim, just as the police could be heard in the recording coming into defendant's house downstairs. Moreover, based on defendant's statements to the dispatcher, it appears he was conveying that Sophie was alive at the beginning of the call but dead seconds later. Yet, this time sequence is contradicted by Dr. Perez's testimony that Sophie's death was not instant but slow, over a few minutes, during which Sophie, who was in pain, would have screamed or made other audible noises that would have been recorded. Given these facts, the State was clearly entitled to draw the reasonable inference, as could the jury, that defendant called 911 after Sophie had died.
Defendant next argues that his fifteen-year sentence, thirteen and one-half years to be served without parole, was excessive. He claims the court improperly weighed aggravating sentencing factors, ignored mitigating factors and wrongly made the term on the "certain persons" conviction consecutive. We disagree.
Our role in reviewing sentences is limited. We do not substitute our judgment for that of the sentencing court. State v. Natale, 184 N.J. 458, 489 (2005). Nor do we substitute our "assessment of aggravating and mitigating factors for that of the trial court." State v. Bieniek, 200 N.J. 601, 608 (2010). Instead, we simply determine whether "the application of the [legislative sentencing] guidelines to the facts of this case makes the sentence clearly unreasonable so as to shock the judicial conscience." State v. Roth, 95 N.J. 334, 364-65 (1984).
Here, the court properly found aggravating factors three (risk of offending), N.J.S.A. 2C:44-1(a)(3); six (prior criminal record), N.J.S.A. 2C:44-1(a)(6); and nine (need to deter), N.J.S.A. 2C:44-1(a)(9). In support of these sentencing circumstances, the court noted:
Factor 3 applies because [defendant] kept a gun in his home. I mean, there's a risk that an offense will occur if he keeps that gun in his home as a person that's a convicted felon. The extent of his prior criminal record speaks for itself and the need to deter by the law.As to the latter, the court cited to defendant's lengthy criminal record, including six juvenile adjudications, fifteen arrests, two prior indictable convictions in New Jersey — one for resisting arrest and one for burglary — and one prior felony conviction in New York for robbery. Thus, there is an appropriate factual basis upon which to find these aggravating factors. State v. Miller, 411 N.J. Super. 521, 534-35 (App. Div. 2010), aff'd in part and rev'd in part on other grounds, 205 N.J. 109 (2011).
The court also found that these aggravating factors predominated over non-existing mitigating factors. In this regard, defendant complains the judge ignored such mitigating considerations as his employment history, home ownership, and raising a daughter. To be sure, N.J.S.A. 2C:44-1(b)(11) directs the sentencing court to consider whether "[t]he imprisonment of the defendant would entail excessive hardship to himself or his dependents." Clearly, the court was aware from the pre-sentencing report that defendant had legal custody of his young daughter whom he was raising. Indeed, the judge made express reference to the fact that defendant was forty-three years old with two children. This circumstance, however, was minimized in comparison to the strength of the countervailing aggravating factors. In this regard, the sentencing court has discretion in how much weight to accord mitigating factors, State v. Dalziel, 182 N.J. 494, 504-05 (2005), and is not obligated to "explicitly reject each and every mitigating factor argued by a defendant" as long as the court "provides reasons for imposing its sentence that reveal the court's consideration of all applicable mitigating factors," Bieniek, supra, 200 N.J. at 609. We find no abuse of discretion in the court's weighing process.
Nor do we find any error in the imposition of a consecutive sentence on the "certain persons" conviction. In the first place, the judge imposed the mandatory minimum sentence of five years with a five-year period of parole ineligibility. N.J.S.A. 2C:39-7(b). No lower sentence was possible.
With regard to its consecutive nature, the "status" offense of being a certain person prohibited from carrying a weapon is aimed at a different evil than offenses like manslaughter. Thus, the crimes and their objectives are independent of each other and involve separate actions, committed at different times and places and involving different victims. See State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).
In arguing for consecutive sentences, the prosecutor stated:
Specifically, under our sentencing scheme, and State v. Yarbough states there are no free crimes in the state of New Jersey for these convictions. And especially in this case again, as the certain person[s] charge first is a completely distinct crime from manslaughter, the elements are completely distinct, and as I stated previously, there's a different timing issue in this case as the defendant possessed that gun for a significant amount of time prior to the death of [Sophie].The sentencing court agreed that "there are no free crimes under Yarbough," and we can infer that the judge concurred with the remainder of the prosecutor's arguments. Thus, under the circumstances, a consecutive sentence was appropriate.
. . . .
But I think it's important to note that because the defendant possessed a handgun that he specifically was prohibited from possessing, a defaced firearm as a certain person and possessed that handgun, that's really the reason [Sophie] then was killed on August 10th, 2008.
If . . . we follow that jury verdict of this being a passion provocation manslaughter, the defendant's introduction of a firearm, specifically a handgun he's not to have, into that volatile situation on August 10th, 2008, Your Honor heard the testimony and there was drinking going on
that day, there w[ere] arguments and fighting going on that day; the defendant's introduction of this handgun into this situation, and not a handgun he obtained that day or at the time of this crime, a handgun he possessed for a significant time period beforehand, the State believes that that in itself shows that the manslaughter charge should be consecutive to the certain person[s] charge.
A sentence that would run concurrent effectively would be giving the defendant a free crime, possessing that gun, separate from the manslaughter charge. . . .
In conclusion, the sentencing court followed the correct legislative guidelines, gave controlling weight to the aggravating factors based soundly in the record, and properly imposed a consecutive term for the "certain persons" offense. The aggregate sentence does not shock our conscience.
Defendant's remaining arguments are without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION