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State v. McBride

Decided: October 21, 1986.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
BENJAMIN MCBRIDE, DEFENDANT-APPELLANT



On appeal from Superior Court of New Jersey, Law Division, Essex County.

Furman, Dreier and Stern. The opinion of the court was delivered by Dreier, J.A.D.

Dreier

Defendant has appealed from convictions on two counts of second degree aggravated assault, N.J.S.A. 2C:12-1b(1), and two counts of third degree terroristic threats, N.J.S.A. 2C:12-3. The charges were contained in two indictments consolidated for trial involving events occurring on May 10th, 20th and June 30th, 1982 and March 15th, 1983. Defendant was sentenced to a total of 25 years with 10 years of parole ineligibility. A $200 Violent Crimes Compensation Board penalty was also imposed. The original indictments additionally accused defendant of attempted murder and unlawful possession of a weapon concerning the June 30, 1982 incident, but the jury returned a not guilty verdict as to these two counts.

Defendant opposed the consolidation of the trials and twice moved unsuccessfully for a severance. Defendant's family had provided funds for private counsel concerning the June 30, 1982 and March 15, 1983 incidents embodied in one indictment; the Public Defender was assigned to represent defendant as to the May 10th and May 20th incidents described in the other. As a result of the consolidation, defendant was, therefore, represented by two attorneys at the trial. The trial judge ruled that although both could participate and question each witness, neither would be permitted to "cross-examine" (in the sense of asking leading questions on direct examination) of the other's witnesses. Defendant's motion to dismiss the indictment based upon the May 10th and 20th, 1982 attacks, based solely upon hearsay testimony before the grand jury, was denied by the court, as was defendant's motion to bar questioning concerning his 1964 atrocious assault conviction, 1979 involuntary manslaughter

conviction, and 1978 municipal marijuana possession conviction, should he choose to testify. During trial, defense counsel were precluded from cross-examining the State's medical experts Drs. Saur and Vij concerning their reliance upon the report of a clinical psychologist, Dr. Fox, who had invoked the psychologist-patient privilege established by N.J.S.A. 45:14B-28. Dr. Fox also refused to testify on the same ground.

The victim of the alleged attacks and threats was defendant's wife. They had been married less than four and one-half months prior to the May 10, 1982 incident. At that time, defendant was angered because his wife had received in her maiden name, an award as "Outstanding Mother of the Year" from her church. He allegedly beat defendant later that evening as they returned from a political affair in Newark. Although she attempted to escape, defendant drove them home and locked the victim in their house. She found a key, ran to a neighbor and then was taken to Beth Israel Hospital where police were summoned. The victim sustained a laceration over her eye, bruising and swelling of her hands and knees, and head trauma. She was released from the hospital the next day and no arrest was made.

On May 19-20, 1982 the McBrides attended an election meeting after which they, with her minister and another woman went to the McBride house for cocktails. The couple argued vehemently. The guests attempted to intervene, and the victim fled into the street with defendant in pursuit. He caught her and brought her back to the house and allegedly stated "I missed you last time -- I'm going to kill you this time." Defendant was arrested and released on bail.

On June 30, 1982 the victim was home alone when the living room window was smashed, setting off the burglar alarm which in turn cut off the telephone line. She went downstairs, and found herself confronting defendant. After a struggle, the

victim was struck in the head with a metal pipe, and when she tried to escape, the defendant caught her, banged her head on the asphalt driveway and choked her, whereupon she blacked out. The police investigation of the incident revealed no evidence consistent with an attempted burglary. As a result of the attack of June 30, 1982, the victim was hospitalized in three different institutions through November 24, 1982. The ensuing condition, which apparently impaired both her consciousness and cognitive functions, resulted in an organic brain syndrome, the symptoms of which are disturbed mental behavior and "confabulation" (the making-up of stories), as well as retrograde amnesia (the inability to recall events just before the injury). Whether this condition was caused by her head injuries or by some other psycho-neurological disorder not related to the injury was not developed at trial as a result of the exclusion of Dr. Fox's report and testimony.

After the victim's release from the hospital, she resumed living with her husband, allegedly without memory of who had assaulted her on June 30, 1982. When in January 1983, the grand jury initially returned an indictment concerning the May 10th and May 20th, 1982 incidents, she requested that the indictment be dismissed, since she and her husband had reconciled. She refused to testify before the grand jury on this indictment, and, in fact, signed a power-of-attorney in favor of her husband during this period. Furthermore, she filed a claim with the Violent Crime Compensation Board concerning the June 30, 1982 incident, contending that the perpetrator was unknown.

On March 15, 1983 defendant allegedly again threatened to injure his wife. A day or two later she claims to have fallen down a staircase bumping her head, after which she had a "flashback" and regained the memory of the June 30, 1982 incident. She did not seek treatment for this accident. She brought charges against defendant for the June 30th incident and reactivated her complaint based upon the May 10th and

20th events. There apparently was some question as to the medical basis of defendant's claim that a blow to the head restored her memory; even the State's witness on cross-examination referred to this sudden revelation as an "exaggeration."*fn1

Defendant has through counsel submitted six points on this appeal:

POINT I

Denial of defendant's motion to sever the indictments for purposes of trial constituted an abuse of the discretion reposing in the trial court, and constituted prejudice to the defendant's right to a fair trial and his right to counsel.

POINT II

The trial court abused its discretion in ruling that defendant's prior convictions could be used to impeach him.

POINT III

The trial court improperly forbade defendant's counsel from cross examining the State's expert witnesses by referring to the report of another expert, upon whom he had relied in forming his opinion.

POINT IV

The defendant was denied the effective assistance of counsel.

POINT V

The trial judge should have disqualified himself, since he knew the victim, and the court's conduct during the trial was inappropriate and denied the ...


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