On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Middlesex County, 97-9-1187-I.
Before Judges Kestin, Fall and Weissbard.
The opinion of the court was delivered by: Kestin, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 2, 2002
Defendant, Armando Negron, was convicted by a jury of murder, N.J.S.A. 2C:11-3a(1), (2), and possession of a weapon for unlawful purpose, N.J.S.A. 2C:39-4a. These convictions occurred in a second trial after the jury in an initial trial was unable to reach a verdict. On sentencing, the trial court merged the convictions and imposed a prison term of seventy-five years subject to the provisions of N.J.S.A. 2C:43-7.2, requiring service of eighty-five per cent of the term before defendant would be eligible for parole and subjecting him to five years of parole supervision upon release. Appropriate provision was made for the imposition of statutory assessments, penalties and fees, and of other conditions.
On appeal, defendant raises the following issues:
POINT I BECAUSE THERE WAS INSUFFICIENT EVIDENCE PRESENTED TO PROVE THAT ARMANDONEGRONKILLEDLAZARACUNHA, THE DEFENSE MOTION FOR A JUDGMENT OF ACQUITTAL SHOULD HAVE BEEN GRANTED.
POINT II THE TRIAL JUDGE ERRED IN REFUSING TO GRANT THE DEFENSE REQUEST FOR A MISTRIAL AFTER THE PROSECUTOR REPEATEDLY DISPARAGED DEFENSE COUNSEL AND THE EXPERT WITNESSES WHO TESTIFIED.
POINT III THE DEFENDANT'S SENTENCE IS EXCESSIVE.
We reverse on the basis that defendant was denied a fair trial by the prosecutor's conduct of the State's case.
The victim, Lazara Cunha, was murdered on August 12, 1998. Defendant and Cunha worked in the same office in New Brunswick. They had been friends for several years and often lunched together. Cunha was in her fifties and was married. Defendant was in his thirties and was single.
A number of their co-workers testified at trial concerning the relationship. According to one, because of the difference in their ages Cunha had taken defendant "under her wing" and they seemed to have "a mother/son relationship." Another co- worker testified that defendant had expressed a sexual interest in Cunha. A third co-worker testified that defendant had stated that Cunha had been making advances toward him. Some co-workers stated that, in the months before the murder, Cunha's relationship with defendant changed----they were no longer close and Cunha seemed to distance herself from defendant.
On the day of her death, at about 8:30 a.m., Cunha, appearing upset, told a fellow employee that she was going to follow defendant to a gas station to leave his car for repairs and drive him back to work. Defendant had been seen by other employees before 8:00 a.m. sitting in his car in the office parking lot. Another employee saw Cunha's beige Jaguar leave the parking lot just after 8:30. At about the same time, two other fellow employees on their way to work saw defendant pacing on the pavement near an intersection down the street from their place of employment, with his car, a red Suzuki, nearby. Defendant declined their offer of assistance.
A few minutes later, a driver passing by saw a woman seated behind the wheel of a Jaguar. Her head was moving and she was apparently conversing with a man standing at the driver's-side window. A few minutes after that, other witnesses saw a man, later identified as defendant, looking into a gold Jaguar parked at the curb in the same location, and then returning to a red car parked nearby. One of those witnesses testified that she first saw defendant looking into the driver's side of the Jaguar, running to the front of the car and looking inside through the windshield, and returning to his position at the driver's-side window. Then, he ran to a red jeep-type vehicle parked in a driveway and entered it. That witness described defendant as running the entire time, as if panicked or in a rush. Two other witnesses saw the Jaguar moving erratically, slowly gliding and then coming to a stop near the driveway. One of them testified that the Jaguar's emergency flashers were lit. Photographs later taken at the scene by the police showed the Jaguar squarely parked at the curb.
A few minutes later, Cunha was discovered by a passerby, sitting in the driver's seat of the Jaguar, wearing her seatbelt and slumped over the steering wheel. The Jaguar's engine was running, its right blinker was on, and Cunha was bleeding profusely from facial injuries.
The police were summoned. They determined that Cunha had been shot in the head and was dead. It appeared that no robbery had occurred, as none of her belongings were disturbed.
When immediate investigation disclosed that Cunha had left work to meet defendant at the gas station, the police went to his home in Newark. He was not there, but his car was located at his sister's home at another Newark address.
The day following, defendant called his sister from Toledo, Ohio. A week later he surrendered to the police at Newark Airport after disembarking from a flight from Puerto Rico.
Although many witnesses testified to the circumstances surrounding Cunha's murder and facts bearing upon her relationship with defendant, some placing defendant in the vicinity of Cunha's vehicle at around the time of her death, there were no witnesses to the actual homicide and none had heard a gunshot. With the exception of a single character witness, defendant presented no fact witnesses. The State's theory was that defendant, spurned by Cunha, had shot her while standing beside her car. Defendant's theory was that Cunha had been shot by someone else while driving and was discovered by defendant in her injured condition. Expert witnesses on behalf of the State and defendant provided conflicting hypotheses supporting the respective theories of the case based on scientific analyses regarding the circumstances of the death. The focus of much of that testimony was whether Cunha could have been shot before her vehicle came to rest where found.
The State's medical expert was the State Medical Examiner, Dr. Faruk Presswalla, a forensic pathologist with extensive experience in that field. Dr. Presswalla testified that the cause of death was a gunshot wound to the left side of Cunha's head above and behind the ear, which traveled toward the right in a downward direction, entering the skull and penetrating the brain, shattering the brain stem and fracturing the base of the skull, and lodging under the skin of the right cheek from where it was recovered. According to Dr. Presswalla, the brain stem injury immediately rendered Cunha unconscious with no ability for voluntary movement or motor function beyond small involuntary twitches. He concluded that the shot came from outside the driver's-side window, which was either partially or completely open since the bullet did not go through the glass. Gunpowder residue and particle lead found on Cunha's shirt indicated that the shot had been fired at an intermediate range, from a distance of about three feet.
Dr. Abbott Krieger, a professor and neurosurgeon with extensive practice and research experience in brain injuries, testified as a medical expert for the defense. In support of the thesis that Cunha had already been injured when defendant was seen at the side of her car, he opined that Cunha had been shot while operating her car causing her to drive erratically. He stated that a person who was severely brain injured and unconscious could move his or her arms and legs and even turn his or her head in reflexive motion.
Another defense expert, Dr. Ira Kuperstein, a forensic engineer, provided supporting opinion for the thesis that Cunha could have driven after having been shot. Based on the location of one of the State's witnesses, Dr. Kuperstein also questioned the ability of that witness to have discerned some of the detail provided in his testimony.
Because no one had witnessed the actual homicide and because there was no direct scientific evidence connecting defendant to the crime, the jury was left with the task of determining whether the circumstances established were an adequate basis for finding beyond a reasonable doubt that defendant had murdered the victim. In the face of the testimony placing him at the scene around the time of Cunha's death and providing some evidence of motive, defendant had offered his theory that Cunha had been shot by someone else while driving and that her vehicle had come to rest at the location where defendant had parked his car. Despite testimony that tended to establish that Cunha had intended to follow defendant from their office's parking lot to a nearby service station, no one saw them leave the parking lot together. Indeed, although one witness placed defendant in his car in the parking lot before 8:30 a.m., others saw him alone shortly after 8:30 a.m. at the location where Cunha's body was found. Thus, there was some basis in the evidence for the jury to conclude that Cunha had driven to that location while defendant waited there, and to use that inference to support either the State's theory or defendant's.
Accordingly, the conflicting testimony of the respective experts, especially the medical experts, became a critical element in the case. If the jury accepted Dr. Presswalla's opinion that Cunha was incapable of propelling her car from the roadway to the curb once shot, it might well conclude that she had pulled the car to the curb before being injured and that defendant had shot her. If, on the other hand, Dr. Krieger's contrary opinion----as fortified by Dr. Kuperstein's physical depictions----regarding the decedent's physical capacities after sustaining the wound inflicted were to be accepted, the jury might well be inclined to find reasonable doubt regarding defendant's guilt. If the choice were to be seen as close, the trial might have as unsatisfactory a result as had occurred in the previous trial of the same charges, where the jury was unable to reach a unanimous verdict.
In this context, the prosecutor embarked on a conceptually allowable effort to discredit both the credibility of defendant's experts as well as the substance of their testimony. He did so, however, in ways that exceeded the bounds of fairness, with the result that the trial was infected with the same shortcomings as were found to have existed in State v. Smith, 167 N.J. 158 (2001).
We set aside numerous instances of quibbling, argumentation, baiting and contentiousness in the prosecutor's cross- examination of Dr. Krieger, some of which earned the prosecutor well-deserved censure by the trial judge. We concentrate primarily upon the instances of Smith-type prosecutorial excess and other similar tactics which the testimonial record reveals.
They began with a focus on several malpractice cases in which Dr. Krieger had been one defendant and which had resulted in sizeable settlements for the claimants. The prosecutor referred to the fact that Krieger was licensed in several states and had been chief of neurosurgery in several different hospitals, inquiring: "You wouldn't be jumping around from state to state and hospital to hospital because of all the mistakes you've been making, right?" The witness responded that his presence in New Jersey for twenty-five years was not jumping around.
Then, after summarizing the different theories propounded by Drs. Presswalla and Krieger, the prosecutor turned to concentrate on the fee charged by Krieger for his services as an expert. The trial transcript reveals the following:
Q: Doctor, let's get to the real difference between you and Presswalla, okay? A I thought that was the real difference.
Q: What's your standard fee for testifying as an expert witness?
A: Sixty-five hundred dollars.
Q: If I told you Dr. Presswalla doesn't get paid to testify, certainly not $6500 a shot, would you disagree with me?
A: I don't know what he's getting paid.
Q: He's employed by the State as the Chief Medical Examiner for the State.
[DEFENSE COUNSEL]: That's inaccurate.
THE COURT: That's not a question first of all. It's testimony.
[DEFENSE COUNSEL]: He does get paid out of State. [sic] It's inaccurate.
THE COURT: The objection is sustained. Don't argue with the witness and don't make comment. Ask questions.
Q: What's your standard fee?
A: My standard fee is $6500.
Q: And that's to put together like you did in this case a three-page report and come in here and share your views for a couple hours and then go home, correct?
A: No, that's not correct. It's really -
THE COURT: Let him finish his answer.
A: (Continuing) I'm reviewing all the medical records provided to me, having several conferences with [defense counsel], appearing in court, freeing up my time to be here. In fact, in this trial I'm not charging my standard fee.
Q: You're cutting it down?
Q: Because things are tough with you. Because your medical malpractice keeps going up every time you screw up, isn't that right?
[DEFENSE COUNSEL]: Objection, judge. There's no foundation for that question.
THE COURT: Objection sustained.
THE WITNESS: Can I answer the question?
THE COURT: I'm going to let you answer the question after I give counsel an instruction.
One, let the witness finish the answers. I understand you have a number of questions. I understand this is vigorous cross examination. I have no problem with that. You must let the witness answer the question before you begin your next question; and don't argue with the witness. Go ahead.
[THE PROSECUTOR]: I would then ask you to instruct the witness to answer my question. I would ask you to instruct the witness to answer my question and not lecture on tangencies.
THE COURT: When that occurs I will.
Go ahead, you can answer.
A: The reason I was willing to testify for less than half my fee is because I felt so strongly that the understanding of the physiology was being completely misstated and I really felt an obligation, a civic obligation, to come in here and to explain to the jury what happens physiologically so that when they make their decision at least they'll make it on the basis of all the information and understanding what the physiological disruptions of the brain do in terms of clinical functioning. I wanted to make that very clear and explain it and that's why I'm here.
Q: You know that's not true because you know you could not get your standard fee. It was reduced for reasons known to you, me, and [defense counsel].
A: And I could have walked away.
THE COURT: Wait a minute. That's not a question.
Ladies and gentlemen, there's no evidence before you that there was a reduction in the witness' fee for any reason whatsoever. It's simply not before you. That's a gratuitous statement. It's one of those gratuitous statements I've been referring to during the entire course of this trial and you are to disregard it.
[THE PROSECUTOR]: Judge, are you aware of how this witness is being paid?
THE COURT: You are not asking questions of me. You're posing questions to the witness. Would you like me to address that with you at side bar?
[THE PROSECUTOR]: Yes, I would.
(The following is a discussion at side bar:)
THE COURT: There is no evidence before this jury by a witness as to what reductions, if any, occur in the payment of this witness. You are not a witness. You're not permitted to testify. I'm sick of these gratuitous statements. Do you understand?
[THE PROSECUTOR]: Yes, but let me explain.
THE COURT: Let's go back on the record.
[THE PROSECUTOR]: I need to make a record.
THE COURT: Let's go. (End of discussion at side bar.)
Q: Your bill in this case was scrutinized, was it not?
Q: You haven't submitted it yet?
Q: Twenty-nine hundred dollars for your civic duty, that's what it's worth?
A: That's what I am going to submit for my bill.
THE COURT: I didn't hear the end of ...