On appeal from Superior Court of New Jersey, Law Division, Monmouth County, 93-03-0386.
The opinion of the court was delivered by: Weissbard, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman, Wecker and Weissbard.
Defendant, Terrence O'Brien, appeals his conviction after trial by jury on both counts of an indictment charging him with the purposeful or knowing murder, N.J.S.A. 2C:11-3, of his sister, Noreen O'Brien, and possession of a weapon for an unlawful purpose. N.J.S.A. 2C:39-4(d). After merging the weapons conviction into the murder conviction, defendant was sentenced to a term of life imprisonment with a thirty year period of parole ineligibility. This was defendant's second trial on these offenses; we reversed his prior convictions on both charges. Regrettably, we must again reverse and remand for a new trial. We conclude that the prosecutor engaged in an inappropriate and harassing line of questioning in his cross-examination of defendant's primary expert witness on the insanity issue, which was the sole issue on trial, thereby unfairly impugning the witness' credibility in the eyes of the jury. Despite timely objection to this line of attack, the trial judge permitted it to continue. We cannot find the resulting error harmless in the context of this "battle of the experts."
We will set out only so much of the tragic and horrific details of the crime as are necessary for an understanding and resolution of the issue we find dispositive.
On January 11, 1993, defendant was released from the hospital after a nearly month-long stay for treatment of a chronic psychiatric illness. Shortly thereafter, defendant learned that his sister, Noreen, was pregnant and involved in a relationship with a Mexican man.
Laurie Bleefeld, a co-worker and close friend of the victim, testified that Noreen had gone on vacation to Cancun, Mexico in the spring of 1992. While there, she entered into a romantic relationship with a man she met in Cancun, Luis Hernandez. In the fall of 1992, Noreen again traveled to Cancun and returned to the United States with Hernandez. Noreen and Hernandez lived with Bleefeld for a short time until they found their own apartment. Bleefeld knew that Hernandez was in the United States illegally. She was concerned that Hernandez might have hepatitis because his skin and the whites of his eyes were "yellowish" and he "seemed to be dragging." Noreen became pregnant by Hernandez. She was excited about the pregnancy, discussed it with Bleefeld, and spoke about it openly at social gatherings.
On January 14, 1993, shortly before midnight, defendant summoned the police to his parents' home, stating that he needed to be transported to the hospital. Police Officer Daniel Murdoch, of the Middletown Township Police Department, picked defendant up at about 11:33 p.m. Defendant appeared depressed, but was dressed neatly and "otherwise calm." On the way to the hospital, defendant told Murdoch that "he was having dreams, bad dreams and hearing voices and he wanted to go [to the hospital] and speak with someone because he didn't want to hurt anybody." Murdoch left defendant with hospital security.
Shortly thereafter, defendant left the hospital "against medical advice," apparently before seeing a physician or a crisis-unit worker. Defendant later explained that he left the hospital "because it was taking too long."
The following morning, January 15, defendant went to a friend's apartment where he drank coffee and removed two knives from a kitchen drawer. Noreen picked him up at his friend's apartment and they proceeded to the West End Post Office on Brighton Avenue in Long Branch. Defendant asked Noreen whether she knew what she was doing to their parents as a result of her relationship with Hernandez. They entered the post office between 11:00 and 11:30 a.m.
According to Adrienne Smith, a postal clerk, defendant looked "scary creepy . . . because he had on a big heavy coat with his hands curled up." Noreen completed her transaction and then walked to one of the utility tables inside the post office.
There were five or six customers in the post office at that time. Defendant left the post office by himself.
After most of the customers had left, defendant re-entered the post office. He approached the service window and bought two stamps from Smith, the only remaining postal employee. There was only one other customer present. After purchasing the stamps, defendant approached the tables where Noreen was working. Defendant stood behind her, blocking Smith's view of Noreen. Smith was assisting the other customer when she heard the victim say, "stop. . . . [Y]ou're hurting me." Smith tried to see what was happening but defendant was blocking her view. It looked like defendant was hitting the victim.
In fact, in full view of passersby, who could see the events through the front window of the post office, defendant stabbed his sister numerous times. Eventually, an off-duty police officer entered the post office and managed to get defendant away from his sister and to drop one of the two knives he was holding. While the officer restrained defendant on the floor, defendant said, "I wouldn't hurt her, that's my sister. I love her."
Defendant was taken to police headquarters and processed. Because of a cut on his finger, the police took defendant to Monmouth Medical Center where his sister had also been taken for treatment. In the course of questioning at the hospital, defendant stated that he was upset with his sister, "that she was dating an illegal foreigner who had hepatitis, and he didn't want her to ruin the family in any way. So he had to take care of it and stop her." Defendant was examined by two psychiatrists at the hospital, one of whom recommended that he be taken to Trenton Psychiatric Hospital apparently based upon a suicide threat, defendant's need to be medicated and his general mental state.
However, rather than being taken to the Psychiatric Hospital, defendant was questioned by a Long Branch detective after being given his Miranda*fn1 warnings for a second time. The detective asked defendant what had happened. Defendant replied: "My sister is going with a foreigner. She wouldn't listen. I had to stop her." When asked why, defendant stated, "To keep the family together." When asked what the problem was with dating a foreigner, defendant replied: "He's a Mexican. He's in the country illegally. She's pregnant. He had hepatitis. The baby was going to be born sick." Napoletano asked defendant what he had done to stop his sister, defendant replied, "I don't know. I blacked out, and I don't want to talk about it." The
detective described defendant's demeanor during questioning as "tense," "agitated," and "very edgy." He paced around the room and did not stay still. However, defendant's answers were responsive to the officer's questions, and he made no comments that were tangential to the subject matter discussed. Defendant appeared to "perfectly understand" everything that was said to him.
Throughout his stay at the hospital, defendant repeatedly asked the officers about his sister's status. When Noreen arrived at the emergency room, she had no pulse and was not breathing. The emergency trauma team managed to resuscitate her only after they surgically opened her chest and manually pumped her heart. She died in an operating room later that day.
When the officers learned that the victim had died, it was decided that defendant would not be told unless he again asked about her status. When defendant next asked about his sister's status, he was tense and edgy. However, when the detective told him that his sister had died, defendant visibly relaxed, sat down on a gurney, and appeared relieved. Defendant said: "Good, this is what I wanted to do." He then "made the sign of the cross" and added, "I'm happy. I'm in a good mood because that's what I wanted. I wanted to kill her."
At this juncture, the detective re-advised defendant of his Miranda rights and asked whether he understood them. Defendant responded, "yeah, I had to do it to save my family." Defendant was again asked whether he understood his rights, and he again confirmed that he did. When asked why he had to save his family, defendant stated that the victim went to Cancun and got involved with a Mexican, "an illegal alien." Defendant further explained that he "had to stop her," because "it was an unhealthy baby" and "an unhealthy situation." Asked whether he followed the victim to the post office, defendant stated: "No, we went together. I had to do what had to be done." Defendant again made the sign of the cross and stated, "good. That's what I wanted." The detective asked defendant why he wanted that result, and defendant replied, "I told you, that's it."
An autopsy of the victim's body revealed that she had been stabbed thirty-three times. The medical examiner confirmed that the victim was two-months pregnant.
At trial, defendant relied upon an insanity defense. As his primary psychiatric expert, defendant presented Dr. Steven Simring. In addition, Dr. John J. Verdon testified as defendant's expert on surrebuttal. The State produced one expert, Dr. Timothy Michals. All three experts agreed that defendant had a mental illness; specifically, chronic paranoid schizophrenia. All three experts further agreed that defendant understood the nature and quality of his conduct when he stabbed and killed the victim. The experts also agreed that schizophrenic persons are capable of formulating criminal intent. Further, they agreed that a schizophrenic person is capable of strong emotions such as anger, jealousy and rage, just as are persons who are not mentally ill. The experts also agreed that a schizophrenic person's symptoms can be more or less severe at various times, and that a schizophrenic person can be deluded in one area of thought while intact in another.
The issue upon which the experts differed was whether defendant knew that stabbing the victim was wrong. The defense experts opined that defendant did not know his conduct was wrong, while the State's expert opined that he did. Thus, the issue for the jury was whether, at the time he killed the victim, defendant's illness was so acute or "out of control" that he did not know killing the victim was wrong, or whether, despite his illness, he did know the wrongfulness of his conduct.
There is no need to detail Simring's testimony, which was based on an interview he conducted with defendant in January 1994; his review of defendant's medical history as evidenced by hospital records dating from the early 1980s; psychiatric reports by various treating doctors; records of medications prescribed; police reports; witness statements; defendant's statements to the police; the autopsy report; and letters written by defendant prior to the offense. In Simring's view, at the time of the stabbing and for many years prior, defendant was suffering from chronic paranoid schizophrenia. He opined that at the time of the offense, defendant's illness was in a state of "flare-up," and that he was "acutely ill," "psychotic" and suffering from a profound thinking disorder. Defendant had been hospitalized for his schizophrenia in 1984, 1987, 1988 (for eighteen months), and 1991. Most recently, in 1992, defendant was twice admitted to hospitals as a result of delusions and agitation. In December 1992, about six weeks prior to the homicide, defendant was admitted to Jersey Shore Medical Center because of anxiety and delusional thinking. He complained of vision problems that he attributed to "Judge Milberg and Steven King, the author, [who] were putting substances into his eyes." Defendant was released from the hospital on January 11, 1993, four days prior to the stabbing. Upon his release, defendant first learned of the victim's pregnancy.
On January 15, 1993, hours before the stabbing, defendant went to the emergency room at Riverview Medical Center complaining of insomnia. Simring surmised that hospital personnel "apparently wanted to admit him," but that defendant refused. Simring opined that defendant's insomnia and attempt to obtain relief by visiting the hospital were signs that his schizophrenia was "breaking through again." There was considerable other evidence upon which Simring also relied, including bizarre, delusional letters defendant wrote in 1986 and 1991, which need not be detailed. Simring concluded that defendant did not know it was wrong to kill the victim, because defendant "thought he was acting in a bizarre form of self defense." Defendant "genuinely did believe based on his internal psychotic thinking, that he was doing the right thing and the legal thing" when he stabbed and killed the victim. Simring acknowledged on cross-examination that notwithstanding defendant's statement to the police upon apprehension that the victim "was his sister" and he would not "hurt her," defendant knew that he had stabbed the victim and understood the nature and quality of his actions.
The State's expert, Michals, agreed that at the time of the stabbing, defendant suffered from a mental illness. However, in his view, defendant knew he was killing the victim and that causing her death was wrong. In formulating his opinion, Michals analyzed the police reports and witness statements, documentation of defendant's psychiatric history, hospital records, and information culled from his own examination of defendant on June 20, 1994. Again, we do not set out the great detail provided by Michals in support of his opinion.
The other defense expert, Verdon, interviewed defendant on June 23, 1999, and again on September 1, 1999, and found him competent to stand trial. Although defendant continued to suffer from paranoid schizophrenia at that time, he was receiving medication and was "relatively organized and intact."
During both interviews, defendant discussed his delusional beliefs concerning Judge Milberg and Steven King. However, defendant reported that he no longer felt that the judge was possessing his body.
Verdon testified that between the June and September interviews, defendant's thinking became more disorganized. He attributed this to the relatively low dosage of antipsychotic medication defendant was taking.
In forming his opinion that defendant did not know his actions were wrong, Verdon found particularly significant defendant's hospital visit the night before the stabbing, as well as his transfer to the Vroom Building shortly after his arrest. Verdon noted that in the commitment papers authorizing defendant's transfer to Vroom, Dr. Phillips, a psychiatrist at Monmouth Medical Center, described defendant as "an acutely psychotic man who had impaired judgment at the time and who was thought to be actively deluded having a fixed false belief." Also, in Verdon's opinion, the fact that defendant committed the stabbing in front of many witnesses, reflected the marked impairment of his judgment. Further, defendant's statement immediately after the stabbing to the effect that he loved his sister and would not hurt her, was indicative of his psychotic condition and demonstrated his ambivalence, a cardinal symptom of schizophrenia. According to Verdon, defendant's subsequent expression of relief upon learning of the victim's death, signified his "psychotic resolution" and also demonstrated that defendant did not know that it was wrong to stab the victim.
As noted, the jury rejected the insanity defense and found defendant guilty.
On this appeal, defendant raises the following issues for our consideration:
DEFENDANT'S ORAL STATEMENTS SHOULD HAVE BEEN SUPPRESSED BECAUSE THEY WERE NOT VOLUNTARY AND BECAUSE THE POLICE DID NOT SCRUPULOUSLY HONOR HIS RIGHT TO REMAIN SILENT
B. The State Failed to Prove That Defendant Knowingly and Intelligently Waived His Miranda Rights Or That His Statements Were Voluntary
C. Defendant's Statement Should Have Been Suppressed Because the Police Did Not Scrupulously Honor His Right to Remain Silent
D. Defendant's Statement Made After He Was Told of His Sister' s Death Should Have Been Suppressed Because It Was Made After He Invoked His Right to Counsel and as a Result of The Inherently Compelling Pressure of Police Conduct
THE PROSECUTOR'S MISCONDUCT DEPRIVED DEFENDANT OF A FAIR TRIAL AND DENIED HIM DUE PROCESS OF LAW. (Partially Raised Below)
THE JUDGE'S REFUSAL TO DETERMINE THROUGH VOIR DIRE THAT PROSPECTIVE JURORS WERE WILLING AND ABLE TO ACCEPT THE FACT THAT PROCEDURES WERE IN PLACE TO PROTECT THE PUBLIC FROM THOSE DEFENDANTS FOUND NOT GUILTY BY REASON OF INSANITY DEPRIVED DEFENDANT OF HIS RIGHT TO DUE PROCESS OF LAW AND THE RIGHT TO A FAIR TRIAL BY AN ...