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State v. Russo

Decided: August 24, 1990.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DAVID RUSSO, DEFENDANT-APPELLANT



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

J.h. Coleman, Muir, Jr. and Skillman. The opinion of the court was delivered by Skillman, J.A.D.

Skillman

[243 NJSuper Page 388] Defendant was convicted by a jury in a capital trial of purposeful and knowing murder, capital murder and felony murder, in violation of N.J.S.A. 2C:11-3a(1), 2C:11-3a(2) and 2C:11-3a(3); armed robbery, in violation of N.J.S.A. 2C:15-1; two counts of attempted murder, in violation of N.J.S.A. 2C:5-1

and 2C:11-3; possession of a handgun for an unlawful purpose, in violation of N.J.S.A. 2C:39-4a; two counts of second-degree aggravated assault, in violation of N.J.S.A. 2C:12-1b(1); and two counts of third-degree aggravated assault, in violation of N.J.S.A. 2C:12-1b(2).*fn1 Defendant also was acquitted of a charge of possession of a handgun without a permit, in violation of N.J.S.A. 2C:58-4. The jury was unable to agree upon a death penalty verdict. At sentencing, the court merged the knowing and purposeful murder and the felony murder convictions into the capital murder conviction and also merged the convictions for third degree aggravated assault into the convictions for second degree aggravated assault. After these mergers, the court sentenced defendant to a life term, with 30 years of parole ineligibility for murder, 20 years, with ten years of parole ineligibility, on both counts of attempted murder, ten years, with five years of parole ineligibility on both counts of second-degree aggravated assault, ten years, with five years of parole ineligibility for armed robbery, and seven years, with three years of parole ineligibility, for unlawful possession of a weapon. The sentences for murder and armed robbery, one count of attempted murder and one count of aggravated assault were made consecutive, with the other sentences to be served concurrently. Therefore, the aggregate sentence imposed on defendant was life plus 40 years, with 50 years of parole ineligibility.

The offenses for which defendant was convicted were committed on March 7, 1985 at Petteti Motors, a gas and automobile repair station located in Swedesboro, a small Gloucester County community. Defendant had been at the gas station a week or two earlier, when his car was towed there after breaking down on the New Jersey Turnpike. On that occasion,

he talked to two of the victims, Joseph Iovanisci and Dino Rossi, while he was filling out paperwork regarding his car and saw them process the gas station's receipts before closing for the evening.

Iovanisci and Rossi were also working when defendant returned to the gas station around 7 p.m. on March 7th. Defendant said that he was meeting someone at a local bar at 7:30 p.m. and that he had stopped by the gas station on his way. Defendant again engaged both Rossi and Iovanisci in casual conversation. Near the time for closing, the third victim, Ann Kiley, arrived to offer Rossi a ride after work. As Rossi was processing the gas station's receipts, defendant suddenly brandished a nine millimeter handgun and told him that this was a "stick up." Defendant then ordered the victims to walk from the office to the parts room of the gas station and to lie on the floor. After the three victims lay down, defendant began firing his gun at point blank range killing Iovanisci and inflicting serious brain damage on Kiley. Miraculously, Rossi, although shot twice, was not seriously injured.

Based on the gas station's towing records, defendant was quickly apprehended. Defendant provided the police with an oral statement, which was tape recorded, that essentially constituted a confession to the crime and also told the police where they could find the murder weapon as well as various other evidence.

At trial defendant relied on the defenses of diminished capacity and voluntary intoxication. In finding him guilty of purposeful and knowing murder, the jury evidently rejected both defenses.

On appeal, defendant makes the following arguments:

I. THE COURT DENIED THE DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL IN CONDUCTING A RULE 8 HEARING ON THE ISSUES OF DIMINISHED CAPACITY IN WHICH HE REQUIRED THE DEFENSE TO CONVINCE THE COURT BY A PREPONDERANCE OF THE EVIDENCE THAT THE CONDITION EXISTED OR THAT IT NEGATED AN ESSENTIAL ELEMENT OF THE OFFENSE.

II. THE COURT SHOULD HAVE CHARGED THE LESSER INCLUDED OFFENSES OF AGGRAVATED MANSLAUGHTER AND MANSLAUGHTER.

III. THE COURT'S CHARGE ON THE DEFENSE OF INTOXICATION WAS IMPROPER AND MISLEADING DENYING THE DEFENDANT A FAIR TRIAL.

IV. THE COURT DENIED THE DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO REPRESENT HIMSELF AT TRIAL.

V. THE DEFENDANT'S CONSTITUTIONAL RIGHT TO DUE PROCESS AND A FAIR TRIAL WERE VIOLATED.

VI. THE PROSECUTOR'S CONDUCT DURING THE TRIAL WAS GROSSLY IMPROPER WARRANTING A NEW TRIAL.

VII. THE TRIAL COURT, BY CERTAIN OF ITS RULINGS, INDICATED A BIAS AGAINST THE DEFENSE, AND DENIED THE DEFENDANT OF HIS RIGHT TO A FAIR TRIAL.

VIII. THE DEATH QUALIFICATION OF THE JURY IN THE CASE SUB JUDICE RESULTED IN A JURY WITH A DISPROPORTIONATE UNDERREPRESENTATION OF BLACKS AND WOMEN.

IX. THE COURT FAILED TO EXCUSE FOR CAUSE A NUMBER OF JURORS DURING VOIR DIRE.

X. THE COURT'S VOIR DIRE OF PROSPECTIVE JURORS WHO WERE IN FAVOR OF THE DEATH PENALTY WAS INADEQUATE IN THAT IT FAILED TO IDENTIFY JURORS WHOSE VIEWS IN FAVOR OF THE DEATH PENALTY WOULD SUBSTANTIALLY IMPAIR THEIR ABILITY TO GIVE A DEFENDANT A FAIR TRIAL.

XI. THE COURT ABUSED ITS DISCRETION IN ALLOWING THE JURY TO VIEW A 31 MINUTE VIDEOTAPE OF THE CRIME SCENE WHICH DEPICTED THE VICTIMS IN A GRUESOME AND SHOCKING WAY.

XII. THE SENTENCE IMPOSED ON THE DEFENDANT WAS EXCESSIVE UNDER THE CIRCUMSTANCES.

We reject defendant's arguments addressed to the conduct of the trial and affirm his convictions. However, we conclude that the trial court erred in failing to merge defendant's convictions for second degree aggravated assault with his convictions for attempted murder. We also conclude that the court erred in imposing a 20 year term of imprisonment, with ten years of parole ineligibility, on defendant's convictions for attempted murder, which was a second degree offense when these offenses were committed. Therefore, we modify defendant's sentence so as to impose an aggregate term of life imprisonment

plus 20 years imprisonment, with 40 years of parole ineligibility.

The only arguments made by defendant which require discussion are Points I, III, IV, VI and XII. Defendant's other points are clearly without merit. See R. 2:11-3(e)(2).

I

Defendant argues that the trial court improperly excluded his proposed expert testimony regarding the mental diseases of personality disorder and depression.

N.J.S.A. 2C:4-2 provides in pertinent part that:

Evidence that the defendant suffered from a mental disease or defect is admissible whenever it is relevant to prove that the defendant did not have a state of mind which is an element of the offense. . . . Mental disease or defect is an affirmative defense which must be proved by a preponderance of the evidence.

In State v. Breakiron, 210 N.J. Super. 442, 449, 510 A.2d 80 (App.Div.1986), a majority of this court held that evidence of a mental disease or defect is only admissible under N.J.S.A. 2C:4-2 if the trial judge is "persuaded by a preponderance of the evidence that the defendant suffered from a 'mental disease or defect which would negate a state of mind which is an element of the offense.'" However, the Supreme Court reversed this holding in State v. Breakiron, 108 N.J. 591, 532 A.2d 199 (1987), concluding that a defendant does not have to persuade the trial judge by a preponderance of the evidence that a mental disease or condition exists. Rather, for evidence of a mental disease or defect to be admissible, a defendant only need make a preliminary showing that "(1) that the condition he purports to establish is relevant to his ability to have formed the requisite criminal mental state; (2) that the medical theory underlying the effect of the condition upon the relevant mental state is generally accepted within the scientific community; and (3) that the evidence defendant plans to adduce is relevant to show the existence of the condition." Id. at 619, 532 A.2d 199.

Defendant's trial was held subsequent to the issuance of our opinion in Breakiron on May 22, 1986, but before the issuance of the Supreme Court's opinion on October 29, 1987. Consequently, the trial court applied a "preponderance of the evidence" standard in deciding whether defendant's evidence of the mental diseases of personality disorder and depression was admissible. Although the application of this standard was error, we conclude that this error was harmless because the evidence of the mental diseases of personality disorder and depression proffered by defendant would not have been admissible even under the standards of admissibility set forth in the Supreme Court's opinion in Breakiron.

Defendant offered testimony by two experts, Dr. David Bogacki, a clinical psychologist, and Dr. Kenneth Weiss, a psychiatrist, in support of his diminished capacity defense.

At a Rule 8 hearing regarding the admissibility of evidence of mental disease, Dr. Bogacki testified that defendant suffers from a depressive disorder, a personality disorder and polysubstance abuse. He further testified that "the combination of depression and polysubstance abuse" made it "very likely" that defendant would "act out his emotions physically." Moreover, "he was likely to behave in ways that would reflect paranoia and also would likely to be able to compromise his reality testing ability, and also lead [to] a transient psychotic episode where his judgment would be seriously compromised." However, on cross-examination Dr. Bogacki stated that he had not reached any conclusions regarding defendant's state of mind on March 7, 1985. In fact, in response to a question from the court as to whether defendant's mental disease existed on the day of the crime, Dr. Bogacki said:

It's very difficult for me to answer that, and I don't know whether -- without some serious reflection on my part, whether I should answer it.

At the Rule 8 hearing, the proposed testimony of Dr. Weiss was presented to the court by admitting into evidence by stipulation two reports he prepared before the trial. Dr. Weiss's first report expressed the opinion that:

[A]t the time of the incident, Mr. Russo was suffering from mental disease which, with respect to the shootings, rendered him incapable of performing knowing and purposeful behavior. The mental diseases in question were 1) multiple substance intoxications, including influences of alcohol, cocaine and heroin; and 2) depression. A predisposing factor in this mental state was Mr. Russo's extreme state of agitation due to both severe marital distress and the anniversary date of his father's death. My examination has made it quite clear to me that such behavior was entirely out of character for Mr. Russo, strongly indicating a deranged mental state. I therefore support the use of a psychiatric defense to negate criminal responsibility.

Dr. Weiss explained these opinions in further detail in his second report, as follows:

[T]he determinants of Mr. Russo's derangement were manifold, and most likely included influences of genetics, early development, traumatic emotional separations, extreme turmoil upon marital separation, unresolved grief for his father, extreme hostility toward his father-in-law, serious mental depression, and multiple substance abuse and intoxications.

David Russo committed the crimes on March 7, 1985 in a state of mind reflecting mental disease and which represented a distinct departure from his ordinary behavior and judgment. I believe that he was potentially violent toward his father-in-law at the time he left Delaware on his way to New York. . . . It is entirely possible that he had stopped at the service station as an unwitting way to short circuit the killing of his father-in-law in New York. It is my opinion that in a fragmented and extremely emotionally aroused state his anger resurfaced, this time in a way that became directed toward the individuals in the service station. I do not believe that he was capable of forming the specific intent to commit these crimes. I believe that they were spontaneous and fragmented pieces of behavior tinged with outrage and hostility, but which bore no relationship in reality to his true intentions. It is for this reason that I would support the notion that his mental state negated the elements of knowing and purposeful behavior at that time.

Based on this evidence, the trial court concluded that "[t]he statements by the doctors do not indicate that the defendant had any of the features of either a manic episode or major depressive episode . . . at the time of the [crime]" and that

"defendant does not meet the diagnostic criteria . . . for antisocial personality disorder." Therefore, while the trial court expressed its decision in terms of a failure of proof of relevant mental disease by a preponderance of the evidence, the actual thrust of its opinion was that defendant had not proffered any evidence at all of the kind of depression or personality disorder which could negate the mental state required for a conviction of the offenses with which he was charged. We agree with this conclusion.

In Breakiron the Supreme Court stated that in order to qualify as evidence of a "mental disease or defect" within the intent of N.J.S.A. 2C:4-2, "at a minimum the evidence must be shown to be able 'to negate a mental element of the crime charged,' or to otherwise impair cognition." Id. at 619, 532 A.2d 199 (citations omitted). Therefore, "[n]ot every mental disease or defect has relevance to the mental states prescribed by the Code. . . . Some, such as depression or anti-social disorders, have little or no relevance to knowledge." Id. at 618 n. 10, 532 A.2d 199.

Thus, the Court concluded in State v. Pitts, 116 N.J. 580, 607-610, 562 A.2d 1320 (1989) that the psychiatric testimony presented by defendant was not of a character which required the court to submit a diminished capacity instruction to the jury. The Court noted that:

[Defendant's psychiatrist] did not testify that defendant's state of mind when he stabbed the victims was caused by his mental disorders; rather, he based his opinion on what defendant had told him about the homicides and on the physical evidence, as well as on his testing of defendant. Nor did [defendant's psychiatrist] testify that defendant's particular mental disorders were generally acknowledged among psychiatrists to be capable of affecting one's ability to possess the state of mind required by the Code for murder. [ Id. at 609-610, 562 A.2d 1320].

The evidence proffered by defendant of the mental disease of depression and personality disorder suffers from deficiencies similar to the evidence which the Court found inadequate in Pitts. Dr. Bogacki declined to express any opinion at all as to defendant's state of mind on the day of the crime. And while

Dr. Weiss's first report stated that one of the mental diseases from which defendant was suffering was "depression," his second report stated that at the time of the crime defendant was "in a fragmented and extremely emotionally aroused state of anger." Moreover, Dr. Weiss did not express an opinion that defendant was suffering from a personality disorder. Most significantly, neither Dr. Bogacki nor Dr. Weiss testified that depression or personality disorder "were generally acknowledged among psychiatrists to be capable of affecting one's ability to possess the state of mind required by the Code for murder," Id. at 610, 562 A.2d 1320, or any of the other offenses of which defendant was convicted. Additionally, the Supreme Court expressly stated in Breakiron that the mental diseases which defendant contends were erroneously excluded from consideration by the jury, "depression" and "anti-social disorders," "have little or no relevance to knowledge." 108 N.J. at 618 n. 10, 532 A.2d 199; see also State v. Carroll, 242 N.J. Super. 549, 557-558, 577 A.2d 862 (App.Div.1990). Consequently, we conclude that the evidence of "depressive disorder" and "depression" proffered by defendant did not purport to establish his inability to have formed the mental state required for the offenses of which he was convicted and therefore its exclusion was consistent with the Supreme Court's opinion in Breakiron.

II

Defendant contends that the trial court's instruction regarding intoxication was misleading because it indicated that the jury had to conclude that defendant acted knowingly or purposely ...


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