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State v. Burr

June 11, 2008

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
FRANKLIN JACK BURR, II, DEFENDANT-RESPONDENT.



On certification to the Superior Court, Appellate Division, whose opinion is reported at 392 N.J. Super. 538 (2007).

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 issues in this appeal are whether it was reversible error to preclude defendant from introducing testimony at trial from a medial expert who diagnosed him with Asperger's Disorder; and whether a videotaped pretrial witness statement, which was introduced into evidence, may be reviewed by the jury during deliberations.

Defendant was charged with sexual assault and endangering the welfare of a child based on allegations that he had inappropriately touched a young student while teaching her piano. Defendant sought to introduce the testimony of Dr. Richard Kleinmann, who would have testified about defendant's diagnosis and the characteristics of Asperger's Disorder, as well as the serious difficulties in social interaction and the bizarre actions and mannerisms that can be common to persons who have the disorder. Defendant did not advance the evidence to support a diminished capacity defense. He wanted to educate the jury about his unusual demeanor and mannerisms, as well as his difficulty with interpersonal dealings. The trial court precluded the testimony because the court found that it did not tend to prove that defendant had a mental defect that prevented him from understanding his actions.

At trial, A.A., who took piano lessons from defendant, testified that on numerous occasions he touched her "private parts" over her clothes. She also testified that defendant often pulled her onto his lap, although he did not touch her inappropriately at those times. Three other witnesses confirmed that defendant allowed children to sit on his lap. During summation, the prosecutor argued that defendant had A.A. sit on his lap to "groom" her for sexual assault by making her feel comfortable when he held her in a compromising position.

Over defendant's objection, the trial court admitted a videotape of A.A.'s pretrial interview with the prosecutor's office into evidence pursuant to the "tender years" exception to the hearsay rule. Later, the jury asked to review the videotape during deliberations. Over defendant's objection, the court replayed the videotape for the jury in the courtroom.

Defendant was convicted of second-degree sexual assault and third-degree endangering the welfare of a child. On appeal, he argued that his ability to defend himself was impaired because he was not permitted to introduce Dr. Kleinmann's testimony. The Appellate Division agreed that the preclusion of that evidence constituted reversible error and vacated defendant's convictions. State v. Burr, 392 N.J. Super. 538 (2007). The panel determined that the trial court erred in basing its admissibility determination entirely on the fact that defendant had not raised a diminished capacity defense. The panel explained that the trial would have been a more fair and complete adversarial process if, in evaluating the evidence and the inferences urged by the State, the jurors were aware that defendant's mental disability prevents him from viewing the world as others do in terms of acceptable social interactions. The Appellate Division also found that the trial court abused its discretion in permitting a replay of the videotaped pretrial interview of A.A. without inquiring into the jury's need for a replay and balancing that need against any resulting prejudice.

The Supreme Court granted certification. 192 N.J. 478 (2007).

HELD: The proffered expert testimony on defendant's diagnosis with Asperger's Disorder was relevant and material to his explanation of himself and his conduct. Preclusion of that evidence constituted reversible error necessitating a new trial. Also, if on remand the trial court is faced with a request by the jury for a replay of the videotaped pretrial interview of A.A., the court first should inquire whether the jury would be satisfied with a readback of the testimony. If the jury persists in its request for a video playback, then the court must determine whether the jury must also hear a readback of any testimony that the court concludes is necessary to provide the proper context for the video playback.

1. Once a logical relevancy can be found to bridge the evidence offered and a consequential issue in the case, the evidence is admissible, unless exclusion is warranted under a specific evidence rule. (pp. 7-8)

2. In perceiving Dr. Kleinmann's expert testimony to be permissible only to establish a diminished capacity defense, the trial court's approach to analyzing the permissible uses of the testimony was too narrow. Mental disease or defect evidence is relevant when asserted to prove or disprove an element of a crime or to advance a defense. Such evidence also has been admitted for other purposes, such as to assess credibility or evaluate an actor's subjective perceptions. In this case, defense counsel proffered Dr. Kleinmann's testimony to explain how defendant's actions in allowing children to sit on his lap might have been innocent of a nefarious purpose, and to show that defendant might not have understood that his conduct could have been perceived as socially unacceptable. To rebut the State's assertion that defendant "groomed" A.A. for sexual abuse, the expert also would have testified that persons with Asperger's Disorder generally do not have the ability to manipulate people easily because of their weakness in detecting social cues that other persons readily recognize. Also, the evidence would have educated the jury about oddities in behavior that defendant might exhibit in court, and it might have persuaded defendant to testify, knowing that the jury would not be inexplicably alienated by his odd behaviors. (pp. 8-12)

3. The trial court abused its discretion by failing to consider larger relevancy concepts when evaluating the proffered Asperger's Disorder evidence, which was relevant to defendant's defense. The error plainly caused prejudice to defendant, as exclusion of the evidence, which would have offered an explanation for defendant's behavior, was capable of influencing the jury's verdict. On remand, he must be permitted to introduce testimony on Asperger's Disorder to defend against any allegation of "grooming" his victim, and to show that he has a medical basis for his asserted shortcomings in perceiving and reacting to basic interpersonal cues when engaging in social interactions. (pp. 13-14)

4. In the future, if a jury requests a replay of a videotaped pretrial interview that has been introduced into evidence, the trial court must apply the same precautionary procedures used to examine whether to allow a replay of a witness's videotaped trial testimony. Adopted in State v. Michaels, 264 N.J. Super. 579 (App. Div. 1993), aff'd on other grounds, 136 N.J. 579 (1994), those procedures require the trial court to first inquire whether the jurors are seeking something from the video that they cannot get from a readback of the transcript. If the request for a replay appears reasonably necessary to the jury's deliberations, the trial court should then balance that need against any possible prejudice to the defendant. A videotape is powerful evidence for a jury to see again, if it is not placed into context. The jury may unfairly emphasize the videotaped statements over other testimony presented at trial, including the witness's own cross-examination. (pp. 15-19)

5. If on remand the trial court is faced with a request by the jury for a replay of the videotaped pretrial interview of A.A., the court first should inquire of the jury whether it would be satisfied with a readback of her testimony. If the jury persists in its request to view the videotape again, then the court must take into consideration fairness to the defendant. The court must determine whether the jury must also hear a readback of any direct and cross-examination testimony that the court concludes is necessary to provide the proper context for the video playback. (pp. 19-20)

The judgment of the Appellate Division is AFFIRMED as modified by the Court's opinion, defendant's convictions are VACATED, and the matter is REMANDED to the Law Division for retrial.

JUSTICES LONG, ALBIN, WALLACE, RIVERA-SOTO and HOENS join in JUSTICE LaVECCHIA's opinion. CHIEF JUSTICE ...


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