May 24, 2005
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT AND CROSS-RESPONDENT,
TERRENCE O'BRIEN, DEFENDANT-RESPONDENT AND CROSS-APPELLANT.
On appeal from (A-36-04) and certification to (A-75-04) the Superior Court, Appellate Division, whose opinions are reported at ____ N.J.Super. ____ (2004).
SYLLABUS BY THE COURT
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
(NOTE: This Court wrote no full opinion in this case. Rather, the Court's affirmance in part and reversal in part of the judgment of the Appellate Division is based substantially on the reasons expressed in the opinion and dissent below.)
This is a criminal case. On January 11, 1993, defendant, Terrence O'Brien, was released from the hospital after a nearly month-long stay for treatment of a chronic psychiatric illness. Shortly thereafter, he learned that his sister, Noreen, was pregnant with the child of a Mexican man with whom she was involved in a relationship. Defendant learned from a close friend of his sister that Hernandez, the father of Noreen's unborn child, was in this county illegally and further that he probably suffered from hepatitis.
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 because he was "having bad dreams and hearing voices and wanted to go to the hospital and speak with someone because he didn't want to hurt anybody." A Middletown Township police officer transported defendant to the hospital and left him with hospital security. Shortly thereafter, defendant left the hospital "against medical advice," apparently before seeing a physician or crisis worker.
The following morning, defendant went to a friend's apartment where he drank some coffee and removed two knives from a kitchen drawer. His sister, Noreen, picked him up at his friend's apartment and the two went 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. Adrienne Smith, a postal clerk, reported that after some time passed, and after Noreen completed her transaction and was working at one of the utility tables inside the post office, defendant walked up and stood behind her. At that point, he was blocking Smith's view of Noreen. Smith was assisting another customer when she heard Noreen say, "stop . . . [Y]ou're hurting me." At that point, in full view of passersby, defendant stabbed his sister numerous times. Eventually, an off-duty police officer entered the post office and got defendant away from his sister. While the officer restrained defendant on the floor, defendant said, "I wouldn't hurt her, that's my sister. I love her."
After defendant was processed at police headquarters, he was taken to Monmouth Medical Center for treatment of a cut. His sister also had been taken to that hospital. In the course of questioning at the hospital, defendant stated that he was upset with his sister because she had been dating "an illegal foreigner" who had hepatitis, and that he did not want her to "ruin" the family, so he "had to take care of it and stop her." Defendant was further questioned by a detective after being given his Miranda warnings for a second time, repeating his story and seeming responsive, albeit agitated and tense. Throughout his stay at the hospital, defendant repeatedly asked the officers about his sister's status. When he was finally told that she had died, he seemed visibly relaxed and said, "good this is what I wanted to do . . . . I wanted to kill her." At that point, the detective re-advised defendant of his Miranda rights. He repeated, however, that he had intended to kill his sister to "save" his family.
At trial, defendant relied on an insanity defense. He presented two psychiatric experts in his defense and the State produced one expert in its behalf. All three experts agreed that defendant had a mental illness (chronic paranoid schizophrenia); that he understood the nature and quality of his conduct when he stabbed and killed his sister; that schizophrenic persons are capable of formulating criminal intent and capable of strong emotions, just as persons who are not mentally ill; and that a schizophrenic person can be deluded in one area of thought while intact in another. The issue on which the experts differed was whether defendant knew that stabbing his sister was wrong -- the defense experts taking the position that he did not. The jury rejected the insanity defense and found defendant guilty.
On appeal, defendant raised eight issues. The Appellate Division unanimously affirmed in respect of seven issues but, with Judge Carchman dissenting, reversed on the issue of whether the trial court erred in failing to sustain defense counsel's objections to the cross examination one of defendant's expert witnesses, Dr. Simring. The cross-examination had centered on defendant's rejection from the Marines years earlier based on a criminal conviction. Prior to trial (and based on an earlier appeal), it had been determined that no mention would be made of that prior conviction. However, when Dr. Simring testified that defendant had not been able to join the Marines, the prosecutor began a line of questioning, attemptimg to get Dr. Simring to admit that mental illness had played no part in that rejection and/or that Dr. Simring had not earlier testified to that fact. Dr. Simring had resisted answering the prosecutor's questions because "it was his suspicion that the . . . assault [on which the conviction had been based] was because of an undiagnosed mental illness." Dr. Simring told the trial judge at sidebar that he believed that his testimony at the prior trial had suggested that possibility and that the prosecutor's line of questioning in this proceeding made it look as if he were not credible and trying to hide things. Defense counsel also had objected, noting that the entire line of questioning was irrelevant to the issue of defendant's sanity at the time of this incident. Defense counsel further objected to the prosecutor's closing remarks in respect of Dr. Simring's credibility, characterizing them as improper because they were designed to make him appear deceitful and to make the insanity defense appear to be a sham. The trial judge overruled defense counsel's objection and further refused to issue any curative instruction, finding that Simring's credibility had not been adversely affected by the prosecutor's line of questioning.
The Appellate Division held that although considerable latitude is customarily allowed in the cross-examination of a witness, the prosecutor's cross-exam of Simring in this matter went well beyond the bounds of proper questioning, and with the trial court's approval, degenerated into badgering of such a degree as to unfairly undermine the credibility of defendant's main witness. The panel further held that the trial court erred in failing to give a curative instruction in respect of the prosecutor's improper conduct. Thus, the panel held that the misconduct had the clear capacity to substantially prejudice defendant's right to have the jury fairly evaluate the merits of his insanity defense. Although Judge Carchman believed that the prosecutor might have been "walking a narrow line" in his cross-exam of Simring, he considered the line of questioning to be narrow, relevant, brief, and proper cross-exam for impeachment purposes. He did not believe it amounted to misconduct and even if it had, he didn't believe it precluded defendant from receiving a fair trial. Judge Carchman agreed with the majority on the remainder of the issues on appeal.
Another of those issues dealt with whether the trial court erred in refusing to ask prospective jurors during voir dire whether they could accept that if defendant were acquitted by reason of insanity, procedures were in place to provide adequately for defendant while protecting the safety of the public. In its final charge, the trial court instructed the jury that such procedures existed, but had refused to address the issue during voir dire, reasoning that it was inappropriate to interject a post-judgment dispositional issue at that stage and that the question was unnecessary to expose bias. The Appellate Division noted that it is within the trial court's discretion to determine when and whether to inquire of prospective jurors about attitudes concerning substantive defenses or other rules of law that may become implicated in the trial or in the charge, and held that the trial judge's voir dire was sufficiently probing and thorough to secure an unbiased jury.
The State appealed to the Supreme Court as of right based on Judge Carchman's dissent in the Appellate Division. The Supreme Court granted defendant's petition for certification limited solely to the issue of whether the trial court erred in refusing to ask prospective jurors during voir dire whether they could accept that if defendant were acquitted by reason of insanity, procedures were in place to provide adequately for defendant while protecting the safety of the public.
HELD: Judgment of the Appellate Division is AFFIRMED in part, based on the unanimous opinion of the Appellate Division, and REVERSED in part, based on the dissenting opinion of Judge Carchman, and defendant's conviction and sentence are reinstated. The trial court did not err in refusing to ask prospective jurors during voir dire whether they could accept that if defendant were acquitted by reason of insanity, procedures were in place to provide adequately for defendant while protecting the safety of the public, and the trial judge's voir dire was sufficiently probing and thorough to secure an unbiased jury. The prosecutor did not exceed the bounds of proper cross-examination in his questioning of defendant's psychiatric expert.
JUSTICES LONG and WALLACE filed a separate opinion concurring in part and dissenting in part. They would have affirmed the judgment of the Appellate Division on all issues, substantially for the reasons expressed in both the unanimous and majority portions of that court's opinion.
CHIEF JUSTICE PORITZ and JUSTICES LaVECCHIA, ZAZZALI, ALBIN, and RIVERASOTO join in the Court's opinion in its entirety. JUSTICES LONG and WALLACE dissent from that portion of the opinion that reverses the judgment of the Appellate Division.
Argued March 15, 2005
Defendant was charged with the knowing or purposeful murder of his sister, Noreen O'Brien. Convicted, he appealed to the Appellate Division, which reversed and remanded for a new trial. Tried a second time to a jury, defendant was convicted of knowing or purposeful murder, N.J.S.A. 2C:11-3, and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d). The trial court merged the convictions and sentenced defendant to a term of life imprisonment with a thirty-year parole ineligibility term.
On appeal to the Appellate Division, defendant raised eight issues. That court unanimously affirmed in respect of seven issues but with Judge Carchman dissenting, reversed on the issue of whether the trial court erred in failing to sustain defense counsel's objections to the cross-examination of defendant's expert witness.
The State appealed as of right to the Court based on Judge Carchman's dissent. R. 2:2-1(a)(2). Defendant petitioned for certification of the remaining seven issues.
On November 10, 2004, the Court granted defendant's petition for certification, 182 N.J. 149 (2004), limited solely to the issue of whether the trial court erred in refusing to ask prospective jurors during voir dire whether they could accept that if defendant were acquitted by reason of insanity, procedures were in place to provide adequately for defendant while protecting the safety of the public.
On the voir dire issue, the judgment of the Appellate Division is affirmed, substantially for the reasons expressed in the unanimous portion of that court's opinion. ___ N.J.Super. ____ (decided July 13, 2004). The judgment of the Appellate Division in respect of the cross-examination of defendant's expert witness is reversed, substantially for the reasons expressed in Judge Carchman's dissenting opinion. ___ N.J.Super. at _____.
The judgment of the Appellate Division is affirmed in part and reversed in part. Defendant's conviction and sentence are reinstated.
CHIEF JUSTICE PORITZ and JUSTICES LaVECCHIA, ZAZZALI, ALBIN, and RIVERA-SOTO join in the Court's opinion in its entirety. JUSTICES LONG and WALLACE dissent from that portion of the opinion that reverses the judgment of the Appellate Division.
JUSTICES LONG and WALLACE, concurring in part and dissenting in part.
We would affirm the judgment of the Appellate Division on all issues, substantially for the reasons expressed in both the unanimous and majority portions of that court's per curiam opinion.
Chief Justice Poritz PRESIDING
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