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State v. Jenewicz

January 28, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
GEORGE JENEWICZ, DEFENDANT-APPELLANT.



On certification to the Superior Court, Appellate Division.

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).

The Court considers whether the cumulative impact of errors that occurred during defendant Jenewicz's trial cast doubt on the fairness of the trial and on the propriety of the jury's verdict, thereby requiring a new trial.

On October 22, 1998, Eunice Gillens was fatally shot in the chest by her live-in boyfriend, defendant George Jenewicz. Jenewicz admitted that he shot Gillens, but claimed he acted in self-defense. At trial, Jenewicz described his relationship with Gillens and the circumstances surrounding the shooting. Gillens and Jenewicz met in February 1998, when both were participants in an out-patient rehabilitation program for substance abusers. They began living together in May 1998. By July 1998, the relationship had deteriorated. Jenewicz predominantly abused alcohol, and Gillens was a heavy user of cocaine, which Jenewicz purchased for her. The cost of her addiction fueled many arguments, which escalated into episodes of personal violence and property damage by Gillens. Following one such argument, Gillens pursued Jenewicz through their home armed with one of Jenewicz's shotguns, but she tripped and injured her right arm, ending the chase, when the shotgun's muzzle caught in a banister spoke on the staircase. Jenewicz testified that Gillens became paranoid, slept with a hammer nearby, propped chairs or bowling balls against doorframes, and began carrying Jenewicz's shotgun around the house, scattering ammunition in different rooms.

On the day of the shooting, Jenewicz and Gillens argued because he purchased alcohol rather than cocaine. Jenewicz testified that he walked out of their bedroom during the argument, and when he returned she jumped from the bed and reached for a nearby shotgun. Jenewicz claimed that, in reaction, he reached for a handgun in a dresser and shot her in the chest, killing her. Jenewicz hid the body in his basement for a few days and then dismembered it.

At trial, Jenewicz's testimony about Gillens's paranoia and violence was corroborated by a female acquaintance who also was Gillens's drug supplier. The acquaintance testified to numerous instances of Gillens's violent outbursts that she had witnessed, but her testimony was undermined by a cross-examination that focused on her occupation as a drug dealer. Jenewicz also intended to produce testimony by Gillens's mother, Lillie Tankard, that her daughter told her about the incident in which she had chased Jenewicz with a shotgun that ended when the gun's muzzle caught in the staircase banister, along with an incident in which Gillens kicked Jenewicz down the staircase because he had tied her up. The trial court precluded the proposed testimony by Tankard after finding that Evidence Rule 405 precludes the admission of prior instances of the victim's violent conduct to show a propensity for violence. The defense further intended to call John Kelly, a rehabilitated cocaine addict and certified drug counselor, as an expert in the behavioral characteristics of long-term cocaine abusers, including paranoia, anger, rage and violence. The court precluded Kelly's testimony on grounds that his expertise was in developing treatment for addicted individuals, not in the diagnosis of cocaine addiction. Jenewicz did offer at trial the expert testimony of Dr. Chester Trent, a psychiatrist, who testified about Gillens's violent behaviors and opined that they were consistent with those of an addict subject to cocaine rages. However, the prosecutor cross-examined Dr. Trent to determine whether Jenewicz had been evaluated for a mental health defense-an issue that was not the subject of Trent's direct examination. Additionally, during summation, the prosecutor implied that Trent's testimony in favor of Jenewicz was not objective but rather an attempt to help the defendant.

The jury convicted Jenewicz of first-degree murder and possession of a weapon for an unlawful purpose. The Appellate Division affirmed. Jenewicz's petition for certification was granted to address the preclusion of testimony by Tankard and Kelly, the prosecutor's purportedly improper cross-examination of Dr. Trent, and the prosecutor's disparagement of Dr. Trent during summation.

HELD: The cumulative impact of the trial court's preclusion of testimony from two defense witnesses and the prosecution's improper cross-examination of the defense expert and disparagement of the defense expert during summation prejudiced the fairness of defendant's trial and cast doubt on the propriety of the jury's verdict, warranting a new trial.

1. A self-defense claim requires that a jury discern whether the defendant had a subjective belief at the time that deadly force was necessary, and then to determine whether that subjective belief was objectively reasonable. A defendant's state of mind is proven predominantly through witness testimony. Because a defendant's testimony on his own behalf is vulnerable to impeachment, presentation of other evidence addressing the objective reasonableness of a defendant's subjective perception of mortal danger is crucial to the jury's truth-seeking function. (Pp. 7-9).

2. With regard to the admissibility of expert testimony, our courts take a liberal approach when assessing a person's qualifications. Courts allow the thinness and other vulnerabilities in an expert's background to be explored in cross-examination and avoid using such weaknesses as a reason to exclude a party's choice of expert witness. Courts need only be satisfied that the expert has a basis in knowledge, skill, education, training or experience to be able to form an opinion that can aid the jury on a subject that is beyond its kin. Here, as the State concedes, the trial court erred in precluding Kelly's testimony in light of his significant experience working with cocaine addicts and his experience teaching others how to recognize the symptoms of cocaine addiction. (Pp. 9--16).

3. In respect of the preclusion of testimony by Lillie Tankard, Gillens's mother, concerning prior incidents of violence, Tankard's proposed testimony that Gillens kicked Jenewicz down the stairs after he tied her up does not constitute relevant evidence because Jenewicz, not Gillens, initiated that incident. Whether Jenewicz should have been permitted to produce Tankard's testimony concerning the incident in which Gillens chased Jenewicz with a shotgun to buttress his belief in the need to use deadly force to defend himself is governed by Evidence Rule 404(b). The Rule permits a defendant alleging self-defense to produce prior-acts evidence that speaks to the issue of the reasonableness of the defendant's belief that deadly force was necessary. The rule states that such evidence may be admitted to show proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute. Only when a defendant has actual knowledge of the acts to which a witness testifies is specific-acts testimony probative of the defendant's reasonable belief. Here, Jenewicz's testimony demonstrated sufficient knowledge of Gillens's behavior during the gun-chasing incident. Therefore, Tankard's testimony on that incident should have been permitted, with a proper limiting instruction, because it was probative of the reasonableness of Jenewicz's belief in the need to use self-defense on the day that he shot Gillens. (Pp. 16--28).

4. With regard to Dr. Trent's expert testimony, the defense called him to testify solely to his opinions about Gillens and her probable emotional and physical state just prior to the shooting, including his opinion that she was in cocaine withdrawal leading to violent and paranoid behavior. The prosecution's cross-examination properly delved into statements made by Jenewicz to Dr. Trent during his evaluation because Dr. Trent admitted to relying on Jenewicz's statements in forming his opinions about Gillens. For a lay jury to comprehend the intricacies and credibility of expert testimony, it is necessary to avoid shielding the basis of expert opinion from searching cross-examination. However, although Dr. Trent had examined Jenewicz and had determined that he could not plead a mental health defense, the expert's testimony on direct was limited to opinions about Gillens, and his failure to find that Jenewicz could state a mental health defense had no impact on those opinions. Pursuant to Evidence Rule 611, cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. As a result, the questions about Dr. Trent's failure to discern a mental health defense improperly exceeded the scope of cross-examination. Additionally, the prosecutor's statements to the jury during summation that Dr. Trent had crossed over the bridge from being an objective psychiatrist to a subjective advocate implied that Dr. Trent's testimony was manufactured out of empathy and were improper. (Pp. 28--42).

5. In assessing whether Jenewicz received a fair trial, the Court must consider the impact of the trial errors on his ability to fairly present his defense, and not just excuse error because of the strength of the State's case. Here, the Court does not determine whether any of the individual errors in this trial would amount to reversible error. Instead, because the errors eliminated evidence that would have buttressed Jenewicz's claim of self defense and inappropriately denigrated the evidence in support of that claim that he was able to marshal at trial, the thematic effect of the errors requires that they be evaluated cumulatively. So viewed, the Court finds that the errors had a disproportionately harmful effect in defendant's trial. The errors' cumulative impact prejudiced the fairness of defendant's trial, and therefore, casts doubt on the propriety of the jury verdict. The Court reverses the convictions. (Pp. 42-44).

The judgment of the Appellate Division is REVERSED, and the matter is REMANDED to the Law Division for further proceedings consistent with this opinion.

Per curiam.

Argued September 11, 2007

CHIEF JUSTICE RABNER, in a separate DISSENTING opinion in which JUSTICE RIVERA-SOTO joins, disagrees that the errors, viewed in the aggregate, require a new trial. In light of Jenewicz's gruesome conduct after the killing, which bears on his consciousness of guilt and adds to the State's case, the Chief Justice believes that the errors were harmless beyond a reasonable doubt and did not lead the jury to a result it might otherwise not have reached.

JUSTICES LONG, LaVECCHIA, ALBIN, WALLACE and HOENS join in this opinion. CHIEF JUSTICE RABNER filed a separate dissenting opinion in which JUSTICE RIVERA-SOTO joins.

Eunice Gillens was fatally shot in the chest by her live-in boyfriend, defendant George Jenewicz. Jenewicz admitted that he shot Gillens, but claimed that he acted in self-defense. At his trial, Jenewicz testified to the violence that existed in their home and, in particular, about Gillens's rages and physical violence toward him, in order to explain his actions when Gillens was shot. However, Jenewicz's credibility was subjected to serious attack at trial. And, although a female acquaintance of the two also testified to Gillens's violence and her eccentric paranoid behaviors, that witness's credibility likewise was impeached.

The jury convicted Jenewicz of first-degree murder, in violation of N.J.S.A. 2C:11-3, and possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4(a).*fn1 The Appellate Division affirmed all convictions. Defendant petitioned for certification alleging several trial errors. We granted certification to review three, which involved the preclusion of testimony from two defense witnesses, and a claim that the prosecution engaged in improper cross-examination of the defense's expert witness and disparaged the expert, as well as the defense, during summation. State v. Jenewicz, 189 N.J. 103 (2006).

We now consider whether the errors that defendant alleges to have occurred during his trial, individually or in the aggregate, deprived defendant of a fair trial in which he fairly could present his defense. Viewing the errors found in defendant's trial through the prism of how they affected his ability to have the jury fairly consider his claim of self-defense, we conclude that the cumulative impact of the errors casts doubt on the fairness of defendant's trial and on the propriety of the jury verdict that was the product of that trial. We therefore are compelled to reverse defendant's murder and weapon possession convictions and to remand for a new trial on those charges. See State v. Blakney, 189 N.J. 88, 97 (2006); State v. Reddish, 181 N.J. 553, 616 (2004).

I.

All charges against Jenewicz arose in connection with the October 22, 1998 shooting death of Gillens.*fn2 At trial, Jenewicz described generally his relationship with Gillens and specifically the circumstances that arose on the day of the shooting. The two began living together in May 1998, when Gillens moved in with Jenewicz. They had met in February 1998, when both were participants in an out-patient rehabilitation program for substance abusers. By July 1998, the relationship had deteriorated. Their life together was marred by their common problem with substance abuse. Jenewicz predominantly abused alcohol. Gillens predominantly took cocaine. Their substance dependence, and the issues that flowed therefrom, led to monumental battles between the two.

Gillens was a heavy cocaine user. Jenewicz was footing the bill for Gillens's cocaine supply out of an inheritance that he had received. Her addiction to the drug and the amount of money that she spent to satisfy her habit fueled many of the couple's arguments, which often escalated into episodes of rage, personal violence, and property damage by Gillens. She would scratch, bite, and kick Jenewicz during arguments. She also would destroy furniture as well as other household property during her rages. Following one such argument, Gillens pursued Jenewicz through their home armed with one of Jenewicz's shotguns. Her pursuit of him ended only when the shotgun's muzzle caught in a banister spoke on the staircase, causing her to trip and injure her right arm. That shotgun was not the only weapon kept in the residence. Jenewicz legally owned two shotguns, a rifle, and a handgun.

Jenewicz described a household that was filled with tension. He testified that, over the course of their few months of cohabitation, Gillens became paranoid and would sleep with a hammer nearby. She kept the curtains drawn because she was fearful that she was being watched and always locked the doors, often propping chairs or bowling balls against the doorframes for good measure. Gillens also took to carrying Jenewicz's shotgun around the house and scattering ammunition throughout different rooms.

On the day of the shooting, Jenewicz and Gillens had an argument in the upstairs master bedroom because Jenewicz spent the couple's available money to buy alcohol, instead of the cocaine that Gillens wanted. Jenewicz walked out of their bedroom while Gillens continued to shout at him, only to return to the room a short time later. He testified that, as he entered, Gillens jumped from the bed and reached for a nearby shotgun. Jenewicz claimed that, in reaction, he reached for a handgun in a dresser and shot Gillens once in the chest. The wound proved fatal.

Rather than notifying the police of the shooting, Jenewicz spackled over the bullet hole in the bedroom wall and carried Gillens's body to the basement of their residence. A few days later, Jenewicz dismembered her body, depositing Gillens's arms in a nearby field and boiling Gillens's head to destroy her facial features. Jenewicz then telephoned a friend for aid in the disposal of the remainder of Gillens's body, which Jenewicz had wrapped in plastic. Jenewicz's friend instead informed the police of Jenewicz's intent. Police officers thereupon proceeded to Jenewicz's residence and arrested him.*fn3

At trial, Jenewicz's testimony about Gillens's paranoia and violent conduct was corroborated by Zoromae Glenngrant, an acquaintance who also happened to have been Gillens's drug supplier. Although Glenngrant testified to numerous instances of Gillens's violent outbursts that she had observed, Glenngrant's testimony was undermined by a cross-examination that harped on her nefarious occupation as a drug dealer.

Jenewicz's self-defense argument depended therefore on additional support in the form of expert testimony from Dr. Chester Trent. Dr. Trent's testimony was to address Gillens's behaviors in the home that she shared with Jenewicz, and to opine that that behavior was consistent with that of an addict subject to cocaine rages. Jenewicz also intended to produce testimony from Gillens's mother, Lillie Tankard, about Gillens's violence toward Jenewicz. Finally, he intended to call John Kelly as an expert in the behavioral characteristics of long-term cocaine abusers. The trial court precluded the proposed testimony of Tankard and Kelly. Defendant's appeal concerns the preclusion of those two witnesses and asserts additional errors in respect of the prosecutor's cross-examination of Dr. Trent and in the summation that discussed Dr. Trent's testimony and the defense.

II.

New Jersey's Code of Criminal Justice shields a defendant from criminal liability when the defendant is found to have acted in self-defense. See State v. Kelly, 97 N.J. 178, 197-98 (1984). The legal justification for the protection of one's person is codified at N.J.S.A. 2C:3-4(a), which states that

[s]ubject to the provisions of this section and of section 2C:3-9, the use of force upon or toward another person is justifiable when the actor reasonably believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.

When deadly force is used, the justification of self-defense exculpates a defendant when he "reasonably believes that such force is necessary to protect himself against death or serious bodily harm." N.J.S.A. 2C:3-4(b)(2). A self-defense claim therefore requires a jury (1) to discern whether the defendant had a subjective belief at the time that deadly force was necessary and then (2) to determine whether that subjective belief was objectively reasonable.*fn4 See State v. Williams, 168 N.J. 323, 332-33 (2001); Kelly, supra, 97 N.J. at 199-200.

A defendant's state of mind at the time of an alleged crime is inherently intangible and, therefore, is proven predominantly through witness testimony and circumstantial evidence. See State v. Williams, 190 N.J. 114, 124 (2007) (recognizing difficulty of proving mental state through direct evidence). An obvious, ready source of direct evidence about state of mind is the defendant's testimony. Such testimony is vulnerable, however, to impeachment for bias, which would be expected to lessen its value in the eyes of jurors. Therefore, when a defendant's defense to a murder charge rests on self-defense, as in the case here, presentation of other evidence addressing the objective reasonableness of a defendant's subjective perception of mortal danger becomes crucial to the defense and to the jury's truth-seeking function. See Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed. 2d 1019, 1023 (1967).

A defendant enjoys a fundamental constitutional right to a fair trial, which necessarily includes the right to present witnesses and evidence in his own defense. See ibid. ("The right to offer the testimony of witnesses . . . is in plain terms the right to present a defense, the right to present the defendant's version of the facts as well as the prosecution's to the jury so it may decide where the truth lies."). In this state, the fundamental right of an accused to present a defense is protected not only by the Federal Constitution but also by Article 1, paragraph 1 of the New Jersey Constitution. See State v. Feaster, 184 N.J. 235, 250 (2005); see also Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 1049, 35 L.Ed. 2d 297, 312 (1973) ("Few rights are more fundamental than that of an accused to present witnesses in his own defense."). Although fundamental, a defendant's right to present a defense is not absolute. See Montana v. Egelhoff, 518 U.S. 37, 42, 116 S.Ct. 2013, 2017, 135 L.Ed. 2d 361, 367 (1996) ("'The accused does not have an unfettered right to offer [evidence] that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence.'" (quoting Taylor v. Illinois, 484 U.S. 400, 410, 108 S.Ct. 646, 653, 98 L.Ed. 2d 798, 811, reh'g denied, 485 U.S. 983, 108 S.Ct. 1283, 99 L.Ed. 2d 494 (1988) (alteration in original))).

With those principles as our guide, we turn to the errors that Jenewicz claims prevented him from obtaining a fair trial. We consider first the evidence that defendant was unable to present in his trial.

III.

A.

Defendant advances a single argument in respect of the preclusion of John Kelly's testimony: whether the trial court should have qualified Kelly to offer expert testimony about the behavioral aspects and mental irregularities caused by long-term cocaine abuse. In a written report based on his knowledge of the common characteristics of long-term cocaine users, Kelly stated that Gillens's severe paranoia, intense anger, explosive rage, and violence were all symptomatic of severe cocaine dependency. He therefore opined that Gillens was a cocaine abuser. The defense intended for Kelly's testimony to support Jenewicz's claim of self-defense by bolstering the testimony of Jenewicz, Glenngrant, and Dr. Trent. The trial court conducted a Rule 104 hearing that elicited the following information about Kelly's qualifications.*fn5

Kelly, a rehabilitated cocaine addict himself, testified that he is a certified drug counselor. In the hearing, Kelly mapped out his experiences in substance abuse education and counseling. After initially volunteering at the Raritan Bay Medical Center, he was hired to work as a "cocaine-addiction specialist." In that capacity, Kelly was responsible for educating hospital personnel in certain departments about cocaine-related facts and symptoms. He also received counseling assignments for addicts involved with the hospital's out-patient program. Eventually, Kelly achieved the title of "senior counselor," which placed him in charge of other counselors in the program and required him to participate in community outreach programs, in which he would speak at different venues about "the dangers of cocaine in the community." At present, Kelly manages an out-patient counseling agency that predominantly focuses upon addictive illness. He evaluates and develops treatment plans, in conjunction with a psychologist, for drug abusers seeking rehabilitation. Over the years, Kelly has evaluated over one thousand individuals addicted to cocaine.

Kelly is certified by the State for social work, specializing in substance abuse. That said, he is neither a licensed clinical social worker nor a licensed social worker. See N.J.S.A. 45:15BB-6. He also possesses a national certification as an "addiction specialist." The American Forensic Board certified Kelly as a "forensic examiner," which purports to authorize him to give an expert opinion regarding substance abuse. Kelly acknowledged, however, that he never before was qualified as an expert to offer an opinion about an individual whom he had not examined, as he was asked to do in this case. Finally, although he was familiar with the Diagnostic and Statistical Manual of Mental Disorders (DSM), Kelly conceded that he does not have the proper clinical background to determine an individual's DSM classification.

The Rule 104 hearing further revealed that Kelly met with Jenewicz at least three times at the Middlesex County Workhouse prior to the trial. The sessions' durations ranged from thirty minutes to one-and-one-half hours. Kelly based his opinions about Gillens on Jenewicz's statements during the sessions about his relationship with Gillens as well as other discovery information, including medical and police reports, and witnesses' statements. Jenewicz was the only individual whom Kelly personally interviewed.

At the conclusion of the 104 hearing, the court determined that Kelly did not possess the requisite qualifications to testify to the conclusions contained in his written report. The court found Kelly's expertise to be in the evaluation of individuals for purposes of developing appropriate treatment modalities, and not in the diagnosis of cocaine addiction, because he lacked the requisite ...


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