For reversal and reinstatement -- Chief Justice Wilentz and Justices Clifford, Schreiber, Handler, Pollock, O'Hern and Garibaldi. The opinion of the Court was delivered by Clifford, J.
[96 NJ Page 642] We granted certification, 93 N.J. 308 (1983), to review the Appellate Division's reversal, in an unreported opinion, of defendant's conviction for manslaughter, a violation of N.J.S.A. 2C:11-4b. The order granting certification limited the appeal to two issues: (a) What standard should a trial court apply in determining whether to issue a curative instruction or, in the alternative, to order a mistrial, when the jury has heard inadmissible, prejudicial testimony? (b) Were the curative instructions
given in this case sufficient to eliminate the prejudicial impact of the medical examiner's testimony?
Our review of the record leads us to the conclusion that any prejudice caused by the witness's comment was remedied by the specific, forceful instruction given to the jury. We therefore reverse the judgment of the Appellate Division and reinstate the judgment of conviction.
Defendant, Laura Winter, a registered nurse, was indicted for aggravated manslaughter, in violation of N.J.S.A. 2C:11-4a, arising out of the death of a patient under her care at Beth Israel Hospital in Newark. The theory of the State's case was that Winter killed the patient, Anna Mudryj, by transfusing incompatible blood intended for another patient, thereby causing a transfusion reaction in the victim. The State claimed further that defendant took steps to conceal her conduct, including failing to inform the patient's doctor of her error, secreting and disposing of the remainder of the blood upon realizing her mistake, and changing notations on Anna Mudryj's chart to mask the effects of the transfusion reaction. The defendant denied giving the transfusion.
On the last day of testimony in this lengthy trial, the State called as a rebuttal witness Dr. Robert Goode, the acting New Jersey Medical Examiner. Dr. Goode testified as to the cause of death, based on medical records, autopsy reports, witnesses' statements, and microscopic slides. Included in the statements he relied on in forming his opinion were those of Anna Mudryj's daughter, Jaroslawa Misseck, and her husband, who had related their observations of Mudryj's discomfort following the alleged transfusion of incompatible blood. On cross-examination, defense counsel asked Dr. Goode, "How do you know who the Missecks' were?" The response by Dr. Goode, as follows, gives rise to this appeal:
Originally when I was told about the case it was said that -- I was told that somebody had made a complaint that Mrs. Mudryj said, "they're out to murder me," or "she's trying to murder me," or something like that. I said, "get me all the information you can," and I said, "I'll need all the statements, all of the history, all of the hospital charts, all of the autopsy reports, et cetera, to review it."
The trial court had, at the beginning of the trial, cautioned against any attempted introduction of these clearly inadmissible statements and had instructed counsel to admonish their witnesses to avoid any reference thereto. Dr. Goode, having been brought in only on rebuttal, apparently had not been so instructed. Upon hearing the Medical Examiner's digression into the area of Mudryj's alleged declaration, the court stated, "I'm going to strike the last answer of the witness." This evidently sparked a non-verbal response from defense counsel, for the court then inquired of him, "You don't want it stricken?" At that point defendant's lawyer indicated that he wished to make an application, whereupon the jury was excused and defendant moved for a mistrial, which was denied. When the jurors returned to the jury box, following a recess of five minutes, the trial court instructed them as follows:
Ladies and gentlemen, I instruct [ sic ] the last answer of this witness -- you are to disregard the last response of this witness. You are not to consider that response, in any way, for any purpose. As I told you at the outset of these proceedings and as I have emphasized throughout the course of this trial, you are to make your ultimate decision in this case based solely upon the evidence admitted at the trial. The evidence consists of the testimony of witnesses. Now, I struck the last answer of this witness. It is not evidence in the case, it cannot have any effect or influence on you when you deliberate and reach your verdict and in no sense are you to consider that answer in making your decision. You're not to consider it, in any way. You are not to discuss it among yourselves during your deliberations. You are to totally disregard the last statement of this witness. Do you understand my instructions? The record should reflect that all the jurors are nodding their heads in the affirmative. Do each of you feel that he or she can comply with those instructions? The record should reflect that all the jurors are nodding their heads in the affirmative.
The jury returned a verdict finding Laura Winter guilty of the lesser-included offense of simple manslaughter, consisting of a recklessly-committed criminal homicide. N.J.S.A. 2C:11-4b. Defendant was sentenced to five years in the New Jersey
State Prison and fined $25.00, payable to the Violent Crimes ...