On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Ind. No. 02-03-0479.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 4, 2006
Before Judges Graves and Lihotz.
Defendant Pedro De Jesus was convicted by a jury of murder, N.J.S.A. 2C:11-3 (count one), and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39- 4d (count two). Defendant was sentenced to a thirty-year prison term, with a thirty-year parole bar on court one and a concurrent five-year prison term on count two. Appropriate monetary sanctions were also imposed.
On appeal, defendant asserts:
POINT I THE COURT ERRED IN PERMITTING THE STATE'S EXPERT TO TESTIFY AS TO OTHERWISE INADMISSIBLE STATEMENTS MADE TO POLICE BY A FRIEND OF THE VICTIM, AND IN DENYING DEFENSE COUNSEL'S REQUEST FOR A MISTRIAL ON THAT BASIS.
POINT II THE COURT ERRED IN FAILING TO MERGE THE CONVICTION FOR POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE INTO THE CONVICTION FOR MURDER. (Not Raised Below.)
We recite the facts in the record relevant to this appeal. Defendant lived with his girlfriend, Maria Castle, and her two minor children. On the evening of November 18, 2001, defendant was drinking and arguing with Castle about her sixteen year-old daughter's failure to attend school. Early the next morning, the sixteen year-old found her mother on the front porch bleeding heavily. Castle told her daughter that defendant had stabbed her. Castle later died as a result of her stab wounds. After his arrest, defendant cooperated with the police and provided a sworn confession that he had stabbed Castle with a knife from the kitchen drawer.
At trial, defense expert, psychiatrist John Verdon, reviewed the report issued after defendant's psychiatric examination. Dr. Verdon opined that although defendant stabbed Castle, killing her, defendant's judgment was impaired due to his substance abuse such that he lacked the capacity to commit a knowing and purposeful murder. In rebuttal, the State's expert, forensic psychologist Louis Schlesinger, testified defendant neither suffered from addiction nor mental disease or defect which would interfere with his ability to act purposely and knowingly at the time of the stabbing.
Defendant maintains a mistrial was required after Schlesinger, in the course of testifying, discussed the statement of Denise Andrade, regarding her telephone call to Castle on the night of the incident, despite the trial court's prior ruling barring the State's use of Andrade's statement in its case in chief. Schlesinger repeated that portion of Andrade's statement made to police wherein she overheard defendant talking to Castle, repeating the phrase, "so that's what you want Maria." After a side-bar colloquy, the court allowed no further testimony about Andrade's statement and denied the motion for mistrial.
In charging the jury, the court gave the following instruction:
As a general rule[,] witnesses can testify only as to the facts known to them. This rule ordinarily does not permit the opinion of a witness to be received as evidence. However, an exception to this rule exists in the case of an expert witness who may give his or her opinion as to any matter in which he or she is versed and which is material to the case.
You are not bound by such expert's opinion. But you should consider each opinion and give it the weight to which you deem it entitled[,] whether that ...