On appeal from Superior Court of New Jersey Law Division, Mercer County.
Approved for Publication July 26, 1997.
Before Judges Skillman, A.a. Rodriguez and Cuff. The opinion of the court was delivered by Skillman, J.A.D.
The opinion of the court was delivered by: Skillman
The opinion of the court was delivered by
Defendant was indicted for robbery, in violation of N.J.S.A. 2C:15-1, felony murder, in violation of N.J.S.A. 2C:11-3a(3), and purposeful or knowing murder, in violation of N.J.S.A. 2C:11-3a(1)(2). A jury acquitted defendant of these charges but found her guilty of theft, in violation of N.J.S.A. 2C:20-3, which was submitted to the jury as a lesser included offense of robbery, and aggravated manslaughter, in violation of N.J.S.A. 2C:11-4, which was submitted to the jury as a lesser included offense of purposeful or knowing murder. The court sentenced defendant to a thirty year term of imprisonment, with fifteen years of parole ineligibility, for aggravated manslaughter, and a concurrent six month term of imprisonment for theft. In addition, defendant pled guilty pursuant to a plea bargain to a charge under a separate indictment of possession of cocaine, in violation of N.J.S.A. 2C:35-10a(1), for which she was sentenced to a four year term of imprisonment to be served concurrently with her sentence for aggravated manslaughter.
On appeal defendant makes the following arguments:
I. THE TRIAL JUDGE DEPRIVED DEFENDANT OF HER CONSTITUTIONAL RIGHT TO PRESENT EVIDENCE AND OF DUE PROCESS OF LAW BY BARRING EXPERT TESTIMONY THAT WHEN SHE KILLED ARTHUR HINES SHE WAS SUFFERING FROM POST-TRAUMATIC STRESS DISORDER (PTSD) RESULTING FROM BEING SEXUALLY ABUSED AS A CHILD.
II. DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE AND UNDULY PUNITIVE.
We conclude that the trial court committed reversible error by refusing to allow defendant to present expert testimony relating to post traumatic stress disorder (PTSD). Consequently, defendant's convictions must be reversed and she must be granted a new trial. This Conclusion makes it unnecessary for us to consider defendant's arguments relating to her sentence.
Because defendant argues that expert testimony relating to PTSD would have supported her claim that she acted in self-defense or, in the alternative, was guilty of passion/provocation manslaughter rather than murder or aggravated manslaughter, it is appropriate to set forth defendant's version of the alleged offense. On November 4, 1991, the date of the offense, defendant was twenty years old and the victim, Arthur Hines, who was defendant's father, was seventy-three years old. Defendant testified that beginning when she was nine and continuing until she was thirteen, the victim had committed repeated sexual assaults upon her. These assaults originally took the form of touching her breasts and genital area and escalated to sexual intercourse when she was around eleven. According to defendant, the victim used physical force to commit these sexual assaults, which occurred two or three times a month for several years, and did not stop until the victim moved out of the house when defendant was thirteen. The victim continued to make sexual advances towards her over the next seven years, but she was able to rebuff them. Despite the sexual abuse which the victim had perpetrated upon her, defendant maintained a relationship with the victim, which included periodic visits to his apartment.
On the day of the killing, defendant went to the victim's apartment to get a ride to a local welfare office. The victim was fully dressed when she walked into his apartment, and she sat down on the edge of his bed to watch television. However, according to defendant, the victim went into the bathroom shortly thereafter, emerged wearing only boxer shorts and a shirt, sat down on the bed, and put his arm around her shoulder. Defendant testified that this conduct made her think about the first time he had sexually assaulted her. Defendant stood up and told the victim to stop, but he again grabbed her. Defendant made eye contact with the victim at this point, and according to defendant, "I just knew what he wanted." Defendant pushed the victim away with both hands, and he "stumbled backwards," but did not fall. The victim immediately came back towards her and grabbed her around the waist. Defendant tried to break loose, but could not. When defendant saw a hammer on top of a tool box next to where the victim was holding her, she picked it up and struck him. The victim stumbled backwards toward the outside door of the apartment but did not fall down. According to defendant, the victim pushed himself up and said, "you little son of a bitch, I'll kill you," and started walking back towards her. Defendant then hit the victim's head with the hammer numerous additional times, killing him. Defendant testified that she was afraid during this confrontation not only that the victim would sexually assault her but also that he would seriously injure or kill her. Defendant also testified that she did not feel she could escape "in safety" without using physical force.
According to the defendant, she immediately left the victim's apartment and went to her mother's house without taking anything. However, she returned to the apartment later, at which time she put the victim's pants partially back on his legs, took $40 which had fallen out of one of the pockets, and used the money to purchase cocaine.
On cross-examination, the prosecutor confronted defendant with a statement she gave to the police shortly after the killing. Defendant stated at that time that her attack upon the victim was unprovoked, and that immediately afterwards she had taken $40 out of his pocket which she used to purchase cocaine. Defendant did not mention in that statement that the victim had sexually assaulted her. In fact, defendant admitted that the first time she ever mentioned the victim's alleged sexual assault to anyone was in her fourth interview with Dr. Hall, the ...