On certification to the Superior Court, Appellate Division, whose opinion is reported at 374 N.J. Super. 25 (2005).
(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).
The primary issue in this appeal is whether expert testimony related to battered women and battered woman's syndrome was properly admitted at a murder trial, twenty years after the crime was committed, to convince the jury that the victim's dying declaration exonerating defendant was not credible.
On December 11, 1981, Walter Townsend lived with his girlfriend, Norma Williams, and her two sons, seven-year-old Jason and three-year-old Brian. That evening, the boys witnessed how Townsend beat their mother with a two-by-four with exposed nails. Townsend then took Williams and the boys to the hospital, but not before crashing his blue pickup truck through the gate to Williams's garage. On the way to the hospital, Townsend instructed Jason to tell the police that Williams was struck by a red tow truck and that three men came out of the truck and beat her with sticks. Townsend threatened to kill Jason if he did not tell that story. Jason told the story to police, but with inconsistencies, and later recanted the red tow truck story altogether. Williams died at 12:10 a.m., but not before being questioned by police. When asked if Townsend had hit her, Williams nodded "no". She also nodded "no" when asked if a truck had struck her and "yes" when asked if a car had struck her. Upon investigating the scene, the officers observed no debris, broken glass, or blood outside the home. The officers found blue paint on the gate and, later at the hospital, observed recent damage to Townsend's blue truck. Inside the home, the officers found blood on a couch. However, the officers could not find any evidence to support the theory that Townsend had struck Williams with his truck and could find no other evidence in support of Jason's story that Townsend beat Williams inside the home. No other witnesses could be found, although there was a thirteen-year-old girl whose mother restricted her from speaking to police. The police completed the investigation without filing any charges against Townsend. The State did not prosecute Townsend, recognizing the weaknesses in its case.
Thereafter, Jason and Brian lived with other relatives. When Brian turned eighteen, he moved to Trenton. In May 2001, Brian read a newspaper article about unsolved homicides that mentioned his mother. Brian contacted Jason and discussed the article. Later, Jason called the Mercer County Prosecutor's Office and requested that the investigation be reopened. On August 2, 2001, the prosecutor reopened the investigation. A number of witnesses that heard or saw something on the evening of December 11, 1981, including the then thirteen-year-old girl, were interviewed. Brian gave a formal statement in which he outlined how Townsend beat his mother with a board containing exposed nails. Williams had another son, a fifteen-year-old living with his grandparents at the time of the crime, who testified that he moved out because he could not tolerate Townsend's physical abuse of his mother. Also at trial, the jury received copious and harrowing eyewitness testimony from the victim's children describing numerous instances of domestic violence by Townsend against their mother.
Mercer County Medical Examiner Dr. Raafat Ahmad had performed an autopsy on Williams's body in December 1981. At that time, she listed the manner of death as "undetermined." When Dr. Ahmad reviewed the autopsy results again in May 2002, she concluded Williams's injuries were more consistent with having been beaten to death. The State also presented the testimony of Dr. Judith Kabus, a licensed professional counselor. Dr. Kabus was a clinical supervisor who worked with abused women, incest victims, and rape victims at the Women's Center of Monmouth County from 1984 to 1998. She had counseled "hundreds" of battered women. The trial court found Dr. Kabus qualified to testify as an expert on battered women in general and battered woman's syndrome. Dr. Kabus testified that although there is a slight difference between them, both groups often lie about the abuse or the origin of their injuries to protect the batterer, as well as to protect themselves from more abuse. For the defense, Dr. Ronald J. Coughlin testified that although lying to protect their batterers is a common behavioral characteristic of both groups of women, he was not aware of any research to support that finding.
Defendant did not testify. The jury found him guilty of murder. The trial court imposed an extended sentence of "thirty years to life" imprisonment with five years of parole supervision. The State concedes that the sentence imposed was unlawful and that defendant must be resentenced because the statute in effect at the time of the crime provided that the extended-term sentence for a conviction for murder was a specific term of years between thirty years and life imprisonment.
Defendant appealed his conviction and sentence. The Appellate Division reversed the conviction, finding that the admission of the victim's dying declaration did not justify permitting Dr. Kabus's testimony on battered women and battered woman's syndrome, and that it was plain error not to give a specific jury instruction to explain the limited purposes for which the State could use the battered woman's syndrome testimony. The panel, however, rejected defendant's claims that it was error to admit evidence of his alleged prior instances of violence upon Williams and that the twenty-year delay in prosecuting the matter was a due process violation.
The State petitioned for certification and defendant filed a cross-petition. The Supreme Court granted both petitions and granted amicus curiae status to the New Jersey Coalition for Battered Women.
The trial court properly admitted expert testimony concerning the common characteristics of battered women and battered woman's syndrome, and the failure of the trial court to give a limiting instruction on the use of the expert's testimony was harmless error. In addition, the twenty-year delay between the date of the crime and the date defendant was indicted did not violate defendant's due process rights.
1. We have not previously addressed the standard our courts should apply when evaluating a request to dismiss an indictment based on unreasonable delay between the date of the crime and the date the charge is presented to a grand jury. Statutes of limitations protect defendants from oppressive pre-indictment delay. They are the guidepost to guard against overly stale criminal prosecutions. Our Legislature has declared that there is no statute of limitations for prosecution of the crime of murder. Despite that, the Due Process Clause of the United States Constitution provides an overlay to protect against oppressive pre-indictment delay. Just as we apply the federal test in the analogous speedy trial context, we will apply the federal standard in determining whether a due process violation resulted from excessive pre-indictment delay. That standard requires the defendant to show: (1) the State's delay in seeking the indictment was a deliberate attempt to gain an advantage over him, and (2) the delay caused defendant actual prejudice in his ability to defend the charge. Here, there was no evidence to suggest that the State intentionally delayed seeking an indictment to obtain a tactical advantage. Further, defendant failed to meet the actual prejudice prong of the test. We affirm the judgment of the Appellate Division denying defendant's motion to dismiss the indictment. (Pp. 11-17)
2. We turn now to the issue whether Dr. Kabus was qualified to testify about battered women and battered woman's syndrome and whether her opinion was an inadmissible net opinion. More than twenty years ago, we recognized that sociologists and psychologists had studied the affects a "sustained pattern of physical and psychological abuse can have on a woman." State v. Kelly, 97 N.J. 178, 192-93 (1984). We have no doubt that the ramifications of a battering relationship is still a subject that is beyond the ken of the average juror. Moreover, it is beyond debate that "battered women's syndrome has gained general acceptance as a scientific doctrine within the professional community." Id. at 225. The question before us is whether expert testimony concerning the traits of a battered woman who has not been diagnosed as suffering from battered woman's syndrome is reliable. We conclude that the record before us amply demonstrates that the characteristics of battered women with or without a diagnosis of battered woman's syndrome are sufficiently reliable to support expert testimony as an aid to the jury. Here, the evidence was overwhelming that Dr. Kabus was qualified to offer the proffered testimony. We find no manifest error to disturb the trial court's determination that based on her training and experience, Dr. Kabus was qualified to give expert testimony on battered women and battered woman's syndrome. (Pp. 17-23)
3. Rule 702 permits a qualified expert witness to testify "in the form of an opinion or otherwise," and Rule 703 addresses the "bases of opinion testimony by experts." Rule 703 is intended to permit expert opinion based on "facts or data derived from (1) the expert's personal observations, or (2) evidence admitted at the trial, or (3) data relied upon by the expert which is not necessarily admissible in evidence but which is the type of data normally relied upon by experts in forming opinions on the same subject." Richard Biunno, New Jersey Rules of Evidence 896 (2005). The corollary of that rule is the net opinion rule, which forbids the admission into evidence of an expert's conclusions that are not supported by factual evidence or other data. We find that Dr. Kabus's education, training, and most importantly, her experience, provided a sound foundation for her opinion and that her opinion was not a net opinion. (Pp. 23-30)
4. Finally, we address whether a new trial is required because the trial court failed to give a limiting instruction on the proper use of expert testimony in respect of the characteristics shared by battered women and women suffering from battered woman's syndrome. Defendant raised this issue for the first time on appeal and did not object at trial. Consequently, we consider it under the plain error rule. R. 2: 10-2. We are convinced, under the circumstances, that the jury should have been instructed that the expert testimony was admitted for the limited purpose of assessing the victim's credibility. Despite that shortcoming, we conclude that the expert testimony did not have the capacity to reach an unjust result. Considering the charge as a whole and the arguments of counsel, we are satisfied that the absence of an instruction to limit the use of the expert's testimony to evaluation of the victim's credibility was harmless error. Because we do not have a model jury charge for the use of expert testimony concerning the characteristics of battered women and battered woman's syndrome, we refer the matter to the Committee on Model Criminal Jury Charges for its consideration and development of a proposed model charge. (Pp. 30-33)
The judgment of the Appellate Division is AFFIRMED IN PART and REVERSED IN PART, and the matter is REMANDED to the trial court to reinstate the judgment of conviction and to resentence defendant.
JUSTICE RIVERA-SOTO filed a separate opinion, CONCURRING IN PART and DISSENTING IN PART, stating that he concurs with the majority's conclusion that defendant's due process rights were not violated as a result of the twenty-year delay, but would, in the circumstances presented, hold the battered woman's syndrome expert testimony offered by the State to be inadmissible, find the trial court's admission of that evidence and its use without a proper limiting instruction to be reversible error, and would order defendant's conviction reversed, and the case remanded to the Law Division for a re-trial.
CHIEF JUSTICE PORITZ and JUSTICES LONG, LaVECCHIA, ZAZZALI, and ALBIN join in JUSTICE WALLACE's opinion. JUSTICE RIVERA-SOTO filed a separate opinion, concurring in part and dissenting in part.
The opinion of the court was delivered by: Justice Wallace, JR
Delivered the opinion of the Court. Twenty years after the death of his girlfriend, defendant was indicted for her murder. At trial, the State presented expert testimony related to battered women and battered woman's syndrome to convince the jury that the victim's dying declaration exonerating defendant was not credible. The jury found defendant guilty of murder. On appeal, the Appellate Division reversed, finding error in the admission of testimony about battered women and battered woman's syndrome and plain error in the trial court's failure to give a limiting instruction on the use of such testimony. The panel, however, found no due process violation based on the twenty-year pre-indictment delay. We granted the State's petition for certification and defendant's cross-petition. We now reverse the judgment of the Appellate Division and reinstate the jury verdict.
We conclude that the trial court properly admitted expert testimony concerning the common characteristics of battered women and battered woman's syndrome, and that the failure of the trial court to give a limiting instruction on the use of the expert's testimony was harmless error. We agree with the courts below that the twenty-year delay between the date of the crime and the date defendant was indicted did not violate defendant's due process rights. We remand to correct the sentence.
The State presented evidence at trial to show that on December 11, 1981, defendant lived with his girlfriend, Norma Williams, and her two sons, seven-year-old Jason and three-year-old Brian. That evening, defendant entered the home and told the two boys to go upstairs. The boys did so but stopped on the staircase and watched as defendant repeatedly struck their mother with a two-by-four with exposed nails until she was motionless. Defendant then picked her up and called the boys to accompany him to the hospital.
While leaving the driveway, defendant crashed his blue pickup truck through the gate to the garage. On the way to the hospital, defendant instructed Jason to tell the police that a red tow truck struck his mother, after which three men jumped out of the truck and beat her with sticks. Defendant threatened to kill Jason if he did not tell that story.
At the hospital, Williams was examined in the emergency room by Dr. Abrid. Williams was drowsy but conscious, her blood pressure was low, and she had alcohol on her breath. She had a cut over her eye, multiple bone swelling, and internal injuries. Dr. Abrid found no damage to the brain stem, and Williams's eye movements were normal. Dr. Abrid ordered oxygen and a blood transfusion for Williams.
The police were called to investigate. Patrolman Joseph Salvatore and his partner arrived at the hospital around 6:45 p.m. and tried to speak to Williams. After telling Salvatore she was struck by a car, Williams lost consciousness. Salvatore then located defendant and the boys in the waiting room and questioned them. Defendant told Salvatore that when he arrived home and found Williams bleeding and leaning against the gate to their home, he immediately drove her to the hospital. Jason told Salvatore that a red truck hit his mother and three men got out of the truck and beat her with sticks before leaving. Salvatore did not question Brian because of his youth.
Detective Theodore Pogorzelski arrived at the hospital around 9:30 p.m. After the doctor informed him that Williams was in critical condition and unable to talk, Detective Pogorzelski met with defendant and the boys. Jason repeated his story about the red truck, but when asked about the three men, he said he did not see them beat his mother.
At some point, Detective Pogorzelski was informed that he could try to speak to Williams. He told Williams the reason he was there and that her prognosis did not look good. Williams's only response was to moan. When the detective asked if defendant had hit her, Williams shook her head from side-to-side indicating "no." Then he asked her if a truck had hit her, and she replied by shaking her head "no." When the detective asked if a car struck her, she moved her head up and down indicating "yes." Williams did not respond when asked the color of the car. She died at 12:10 a.m., shortly after the questioning.
Meanwhile, Detectives Taylor and Pascillo were looking for evidence of a hit-and-run accident in front of Williams's home. They discovered that one of the chain-link gates to the driveway was damaged and had blue paint on it but found no debris, broken glass, or blood in the area. The police went door-to-door looking for witnesses but were unsuccessful. Later, when Officer Thomas Hoffman examined defendant's blue truck parked near the hospital, he observed recent damage to the left rear.
A few hours after Williams died, defendant and the boys were taken to the police station. Officer Hoffman claimed he overheard defendant tell Jason not to say anything to the police. At the station, defendant was separated from the boys. Initially, Jason was reluctant to talk to the police. When he decided to talk, he accused defendant of fighting with his mother and striking her with a board. Jason stated that defendant told him to tell the story about the red truck and the three men. He also said that defendant's truck hit the driveway gate on the way to the hospital.
Prior to interviewing defendant, Detectives Pogorzelski and Taylor informed him of his Miranda*fn1 rights. After waiving his rights, defendant denied instructing Jason to tell the police that a red tow truck struck Williams and stated that he never threatened Jason. He claimed he was at the corner bar when Jason ran inside and exclaimed that a red car had smashed the gate to their driveway. Defendant said he immediately went home and discovered Williams on the driveway, moaning that a red car smashed through the gate.
That same day, Detective Pogorzelski re-interviewed Jason in the presence of his two uncles. Jason again accused defendant of killing his mother. Because Brian was only three years old, the police did not question him.
Defendant consented to a search of the house he shared with the decedent. The police found blood on the couch but no weapons. Defendant explained that he had placed Williams on the couch before taking her to the hospital. Pursuant to a search warrant, the police searched defendant's truck. They were unable to find any evidence to support the theory that defendant had struck Williams with his truck.
The police canvassed the neighborhood again but located no witnesses. One neighbor, thirteen-year-old Annissa Gaines, was prevented from speaking to the police by her mother. The police completed the investigation without filing any charges against defendant. The State recognized the weaknesses in its case: seven-year-old Jason was the ...