November 16, 2006
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
FRANKLIN JACK BURR, II, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Ind. No. 04-05-0726.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 26, 2006
Before Judges Weissbard, Payne and Graves.
Defendant Franklin Jack Burr, II, appeals from his conviction of second-degree sexual assault, N.J.S.A. 2C:14-2b, and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. After merging the endangering into the sexual assault, a six-year term of imprisonment was imposed, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.
For the present purposes, we need only relate that defendant was a piano teacher and the ten-year-old victim was one of his students. The assaults, which consisted of fondling, were said to have taken place at the Jewish Community Center (JCC) in Edison. Defendant's wife also gave piano lessons to the victim, and the victim's older brother at the JCC.
On appeal defendant raises a number of issues, including the following:
THE VERDICT MUST BE SET ASIDE BECAUSE THE DEFENDANT WAS NOT ALLOWED TO INTRODUCE EVIDENCE OF HIS MEDICAL DISABILITY THAT WOULD HAVE EXPLAINED HIS BEHAVIOR
A. Evidence of Mental Disease or Defect Is Not Limited to Cases that Present A Diminished Capacity Defense
B. The Asperger's Evidence Was Relevant To Show That Mr. Burr Would Not Know That a Child Sitting on a Man's Lap Is Inappropriate
C. The Evidence Was Relevant to Show That Mr. Burr Did Not Engage in a Pattern of Manipulation and Deceit
D. The Evidence Was Relevant to Explain Mr. Burr's Odd Appearance and Behavior
Defendant contends that he suffers from Asperger's Disorder, a recognized condition*fn1 that would serve to explain certain of his behaviors with the child-victim. Specifically, it is argued that his illness would explain why the child was permitted or encouraged to sit on defendant's lap, a practice the prosecutor referred to as "grooming," a prelude to the subsequent sexual assault. The issue arose as follows. During a court appearance in May 2004, the judge became alarmed by defendant's odd appearance and demeanor,*fn2 and wanted his competency to stand trial evaluated. Defendant was then admitted to the Ann Klein Forensic Center (AKFC) for evaluation. The discharge summary from the AKFC stated that defendant demonstrated signs of Asperger's Disorder as well as signs of an unspecified psychiatric or personality disorder, and concluded that "further evaluation is needed for formulating a definitive diagnosis."
Defendant's attorney referred him to Dr. Richard Kleinmann, a psychiatrist, for a psychiatric evaluation in the context of his application to be released on bail. Defendant had first met with Kleinmann in March 2004 and again in June and July 2004. On June 15, 2004, Kleinmann issued a brief letter stating that his "clinical impression" of defendant is that his "primary psychiatric diagnosis is Asperger's Disorder, a type of autism which can present with serious difficulties in social interactions because the individual is very limited in his ability to correctly interpret the emotions, feelings and wishes of others."
Kleinmann's lengthy and more detailed psychiatric evaluation report, dated July 6, 2004, reconfirmed the diagnosis of Asperger's Disorder, which is an "uncommon form of autism found in individuals of normal or above-normal intelligence," that results in serious difficulties in social interaction and "significant impairment in social, occupational and other important areas of functioning." The report stated that "[i]t is difficult to overestimate the challenges posed to an individual with Asperger's Disorder trying to negotiate a path through a world peopled with non-autistic people." Kleinmann's report concluded:
While I am unable to predict future behavior, my clinical impression is that [defendant] is not a sexual predator and is very unlikely to act in such a manner in the future if released on bail. Indeed, having this disorder actually makes improper sexual behavior less likely because individuals with Asperger's Disorder are not charismatic and are perceived, even by children, as different and bizarre.
During pretrial proceedings, the State brought a motion in limine to preclude expert medical testimony at trial concerning the fact that defendant has been diagnosed with Asperger's Disorder. Counsel explained that the defense was not seeking to offer evidence of the disorder to show that defendant committed the alleged acts but did not understand that his conduct was wrong, but rather to show that defendant's ability to make certain social judgments is impaired. In particular, defense counsel expressed concern that the jury might draw improper inferences from the fact that defendant allowed young female piano students to sit on his lap and from the fact that defendant's appearance may seem odd or alarming. She urged that defendant "should be able to show the jury a full picture of what it is that [he] is suffering from and why he may make inappropriate social judgments, not criminal judgments, but inappropriate social judgments." It was not contended that the Asperger's evidence would demonstrate diminished capacity.
In granting the State's motion to preclude the expert testimony, the trial court stated:
As to perceptions of [defendant] as bizarre or weird or eccentric, it may be true that people looking at [defendant], even when [defendant] is acting appropriately, may draw the conclusion that he is odd or unusual or strange. I don't know that his appearance is related to Asperger's disease or Asperger's Syndrome. [Defense counsel] in her argument referred to, I believe the relative of hers who suffers from Asperger's Syndrome, and I have pointed out before that there's a relative, at least my nephew in my family who is fifteen years of age who suffers from Asperger's Syndrome when I spend time with him I can certainly see the difference in how he deals socially with others between him and his siblings. There's no question about it.
But I am satisfied there is no basis to have Doctor Kleinmann testify . . . as to the condition of Asperger's Syndrome. I don't know the relevance of his condition insofar as it relates to this case. . . .
[T]here is no . . . contention that [defendant] cannot formulate the mental attitude of purposefulness or knowledge sufficient to commit the crimes in question.
In terms of his close interaction with the victim placing the victim on his lap, assuming that for the moment, for the purpose of this argument it can be shown that he did that or touching her buttock or reaching under her skirt on the one occasion, I don't believe that the fact that the defendant suffers from a disease which affects his appearance or his manner relates to that.
I, therefore, will grant the motion of the State to strike testimony of Doctor Kleinmann. . . .
On appeal, defendant argues that the trial court's decision to preclude him from introducing evidence of Asperger's Disorder denied him a fair trial. Defendant contends that evidence of his mental impairment was relevant to explain his appearance and mannerisms to the jury, who likely found him to be odd or strange, and to rebut the State's argument that defendant "forced M.M. to sit on his lap with a pattern of coercion designed to eliminate her social barriers." Stated another way, defendant asserts that the Asperger's evidence was relevant to show that he did not know that it was inappropriate to have a child sit on his lap and that, by letting a child sit on his lap, he was not engaging in a pattern of manipulation and deceit.
We consider the issue thus framed to be of significance but conclude that the record before us provides an inadequate basis for disposition. As noted, Dr. Kleinmann's report was issued in the context of a bail application and, even though lengthy, was not as thorough as would likely be the case if he were presented as a witness at trial. In addition, he was not, obviously, subjected to cross-examination. If the judge had not excluded the testimony in limine, we assume that a hearing would have been held pursuant to N.J.R.E. 104(a) to explore the scope of the expert's proposed testimony as it related to the issues in the case. N.J.R.E. 401; State v. Darby, 174 N.J. 509, 519-20 (2002); State v. Davis, 96 N.J. 611, 619 (1984).
Accordingly, we remand for the purpose of such a hearing at which the witness will proffer his proposed trial testimony, subject to cross-examination. The hearing is to be completed within forty-five days of receipt of this opinion by the parties. Upon completion, a transcript should be filed with us.
R. 2:6-11; R. 2:6-12.
Remanded. Jurisdiction is retained.