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State v. Doss

October 23, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
HASSAN DOSS, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 04-06-0854.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 24, 2007

Before Judges Lintner and Sabatino.

Defendant, Hassan Doss, appeals his convictions of murder and third-degree possession of a weapon for an unlawful purpose. The convictions arise out of proofs establishing that defendant beat to death a fellow inmate at East Jersey State Prison. We affirm.

I.

During the five-day trial of this case, defendant did not dispute that he killed another inmate, Alexander Bernstein, on May 5, 2004, in the East Jersey State Prison ("East Jersey") mess hall. His defenses at trial concerned his state of mind at the time he took the victim's life. The manner in which Bernstein was killed, as shown by the State's proofs, was particularly brutal.

Because East Jersey was built in 1896, the mess hall is a large space, akin to a cafeteria. Nearly 250 inmates at a time eat meals there. Breakfast typically lasts from about 6:30 to 7:45 in the morning. Each inmate is allowed thirty minutes to eat.

Before entering the mess hall, each inmate must go through a metal detector. An inmate is only allowed to bring in a plastic spoon and a plastic bowl or cup. Corrections officers conduct sporadic pat downs before the prisoners enter. Once inside the mess hall, the inmates are allowed to sit wherever they choose. There are no corrections officers physically present in the mess hall. However, there are several corrections officers nearby and cameras monitoring the area.

The inmates are aware of and can see the cameras.*fn1 The officers observe the inmates from cages about ten to twelve feet above the floor.

Several officers testified for the prosecution. The State's first eyewitness was Lieutenant John Cunningham, who provided the most detailed narrative of the events. He was assigned as the "movement sergeant," overseeing inmate movements to and from the mess hall and the prison shop on the day of the killing. At breakfast that morning, Lieutenant Cunningham was in the sergeant's observation cage with one other officer. There was another cage with a third officer on the other side of the mess hall.

There are two lines (referred to as lines "one" and "two") in the mess hall, from which inmates may serve themselves breakfast. Lieutenant Cunningham testified that he could see the center aisle of the mess hall directly from his perch. Shortly before the attack on Bernstein, Lieutenant Cunningham saw defendant sitting at a table on the "line one" side of the mess hall. He observed Bernstein walk up the center aisle from "line two" carrying a food tray. Lieutenant Cunningham then saw defendant stand up from his table and punch Bernstein, knocking him to the floor.

At that point, Lieutenant Cunningham sounded the alarm for the riot activation system, to alert the rest of the institution. The riot alarm secures the prison, locking down all areas, with officers responding to a central area with protective equipment. In order to enter the cafeteria, there must be an assembly of one supervisor and twelve corrections officers with protective vests, helmets and batons.

After sounding the alarm, Lieutenant Cunningham used a bullhorn to order defendant to stop what he was doing. He also directed other inmates to move away from the area. Defendant, however, continued to attack Bernstein, who was by then half under one of the dining tables. Defendant then grabbed Bernstein by the collar. He dragged him over to one of two forty-gallon steam-heated coffee urns. Defendant then put Bernstein underneath it and turned the spigot on him.

At this point, Lieutenant Cunningham observed defendant clear off a dining table, stand on it, raise his arms in the air, and proclaim something that Cunningham couldn't quite hear. While defendant was doing this, one of the other inmates turned off the spigot. Defendant then turned the spigot back on. About twenty to thirty seconds later, Lieutenant Cunningham saw defendant pull Bernstein out from under the coffee urn. Defendant urinated on Bernstein, kicked him, and punched him. Then, while Bernstein was lying face down, defendant grabbed his ankles and bent them up and leaned into them. It appeared to Lieutenant Cunningham that defendant was bending Bernstein "in half backwards." Defendant then kicked him a few more times.

At that point the officers' response team entered the mess hall. Defendant stopped attacking Bernstein immediately. He came up the center aisle to meet the team. Defendant then knelt down and put his hands behind his back, so that the officers could handcuff him.

Another corrections officer, Gabriel Baez, testified that on the day in question he worked behind a window in the mess hall on serving line two, collecting meal tickets and giving out trays to inmates. When the riot bell went off, Officer Baez looked out the window and saw defendant about fifteen feet away. He observed defendant on top of Bernstein, straddling him and punching him in the head. Officer Baez then saw defendant stand up and start kicking Bernstein. Bernstein initially blocked the blows, but after a few kicks he dropped his hands. Bernstein appeared to Officer Baez to be unconscious. Defendant them stomped on Bernstein's head and dragged him down the center aisle, walking right past Officer Baez's window. At that point he was out of view. Officer Baez issued several orders for defendant to stop. However, no officer at that point intervened until the response team arrived.

Another witness for the State, Lieutenant James Mattia, described for the jury his operation of five security cameras overlooking the mess hall. These cameras are constantly recording, but have no microphones. After Lieutenant Mattia heard the riot bell on May 5, he sounded the alarm for the response team to assemble. Lieutenant Mattia observed the rest of the attack on camera.

The supervisor for the response team summoned to the mess hall was Lieutenant Robert Mikulik, who had the rank of disciplinary sergeant in May of 2004. Mikulik testified that as he was entering with the response team, he saw defendant kicking someone. All of the other inmates were on the other side of the hall. The response team then entered and went up the middle aisle of the mess hall. According to Lieutenant Mikulik, when defendant saw them, he just walked straight towards the team, not saying anything or gesturing. Lieutenant Mikulik testified that he was in the process of ordering defendant to stop when defendant "just stopped on his own, turned, kneeled down on the ground, [and] put his hands behind his back." At that point Lieutenant Mikulik handcuffed defendant and he was brought out to the exit cage. Lieutenant Mikulik then went to locate the victim and had no further contact with defendant.

Lieutenant Robert Lapenta, who was a sergeant at East Jersey at the time, testified that he also was part of the response team. Following the attack and the team's apprehension of defendant, Lieutenant Lapenta confiscated defendant's gloves. He inspected the gloves for weapons before defendant was admitted to the hospital for a medical exam.

The State also presented testimony from three investigators: Jeffrey Poling, Albert McBride, Jr., and Anthony Aversano. The investigators were all sent to the crime scene to take photographs and collect evidence, including blood samples. Poling testified that in the mess hall near the coffee urns he found the victim's ear that had been severed during the attack. Poling supplied the ear to the Office of the Middlesex County Medical Examiner. Aversano and Poling both attended the victim's autopsy. During the autopsy, part of a lead pencil was found in Bernstein's tongue. Investigator McBride was sent to find the other part of the pencil at the crime scene, which had been sealed for the investigation. Once there, McBride found a piece of a number two pencil, lying next to one of the tables in the front left part of the mess hall.

Geetha Natarajan, M.D., Middlesex County's Chief Medical Examiner, testified as an expert for the State. As part of her examination, Dr. Natarajan first examined Bernstein's body at the scene. She then looked up the victim's medical records and spoke with various medical personnel at the prison. Based on her examination Dr. Natarajan found two sets of injuries to Bernstein: (1) blunt trauma to the face and head resulting from the punching and kicking, and (2) scalding injuries all over Bernstein's head, except where it had been in direct contact with the floor. Dr. Natarajan opined that the lack of swelling of Bernstein's non-scalded skin indicated that he had not been alive for a long period of time after being scalded under the coffee urn. A pencil was also found stuck through Bernstein's tongue, with evidence of a fresh break.

In addition to the testimony of these witnesses for the State, the jury watched the security videotape depicting defendant's attack on Bernstein. They also viewed several autopsy photos.

On this evidence, the State rested. The defense then moved for judgment of acquittal, which was denied.

The defense case started with the testimony of Donald R. Reeves, M.D., a psychiatrist with University Correctional Health Care, which provides mental health care to prisons in the state.

As of May 5, 2004, Dr. Reeves had been assigned to East Jersey State Prison as a staff psychiatrist. Dr. Reeves was part of defendant's treatment team, which also included Valarie Yorker, a social worker, and a Dr. Christine Fernback, a psychologist.

Dr. Reeves had followed defendant as a patient at East Jersey for eleven months, starting in June 2003. Dr. Reeves ceased seeing him after Bernstein's killing. He diagnosed defendant with several mental health conditions, including a psychotic disorder, not otherwise specified ("psychosis NOS"); a history of polysubstance dependence; and antisocial personality disorder. According to Dr. Reeves, defendant likely had suffered from psychosis NOS for at least two years prior to commencing treatment.

Dr. Reeves had prescribed anti-psychotic medication for defendant, specifically Risperdal. Originally, the medication was to be taken orally by defendant to treat delusions, hallucinations, disorganized behavior, and disorganized speech. Dr. Reeves also prescribed Desyrel as an antidepressant, to help defendant sleep. Additionally, he prescribed Cogentin to address the side effects of tremors caused by Risperdal.

On March 9, 2004, Dr. Reeves took a blood sample from defendant. The sample revealed that defendant had not been taking his medications. Consequently, Dr. Reeves ordered involuntary medication. This was an injection of Risperdal, equivalent to what defendant was supposed to be taking orally. The first such injection was administered to defendant on April 9, 2004. The second was given on April 23, 2004. Defendant was due for a third dose on May 6, 2004, a day after Bernstein was killed. Because the injected version of Risperdal takes effect more gradually than its oral form, Dr. Reeves was aware that defendant's symptoms would diminish slowly.

On cross examination, Dr. Reeves testified that he saw defendant in detention on May 5, 2004, hours after he had killed Bernstein. At that time, defendant appeared "enthusiastic" and "excited." Defendant told Dr. Reeves that he did not recall what had happened in the mess hall, and that he went to bed the night before and woke up in that cell knowing nothing of what occurred in between. Dr. Reeves discredited this assertion because defendant had never demonstrated any memory impairment before and, in fact, knew that his scheduled medication was imminent. Further, defendant knew what he had done on May 4, the day before. Consequently, Dr. Reeves testified that it was obvious what [defendant] was ...


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