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State v. Cox


July 18, 2008


On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 04-09-2178.

Per curiam.


Submitted February 25, 2008

Before Judges Graves and Sabatino.

Defendant, Jeffrey Cox, appeals his conviction of a second-degree "certain persons" weapons offense, N.J.S.A. 2C:39-7(b), following a three-day jury trial. His main contention is that the trial judge committed plain error in admitting, without objection, certain proofs of defendant's prior conduct without sufficient justification under N.J.R.E. 404(b) and the res gestae doctrine. Defendant also maintains that the judge gave the jury faulty instructions as to the proper use of those proofs. We affirm.


Defendant's indictment and prosecution arose out of a police search of his home on a Sunday evening, following his mother's report of domestic violence. The following facts and circumstances, as adduced from the evidence at trial, are pertinent to our analysis of the issues raised on appeal.

On March 21, 2004, defendant, who was then age thirty-nine, returned from Florida with several other family members from a vacation in Disney World. Defendant had been accompanied on the trip by his mother Joan Cox, his brothers Gary and Joseph Cox, Joseph's two children, and Gary's girlfriend Heather.*fn1 The group had been in Florida for about a week and a half. At the time, defendant, his mother, and Gary were residing together in the family home in Howell, while Joseph and his two children were living in Texas.

After defendant, his mother, Gary, and Heather landed at the airport that Sunday afternoon, they were picked up by Heather's parents and driven to the Cox residence in Howell. Heather then continued home with her parents.

Shortly after arriving home, defendant asked Gary to drive him to a nearby convenience store to buy cigarettes and some other incidental items. Gary agreed, and took defendant back and forth to the store. During that brief errand, Gary recalled defendant acting normally, and conversing about trying to start with him a possible family landscaping business. Meanwhile, defendant's mother remained at the house and turned on the television. Gary dropped defendant off back at the house at about 5:00 p.m., and then left to meet up with Heather.

At this point, defendant was home alone with his mother. According to her testimony, defendant then began to act in a "wild" manner. He repeatedly told his mother that "somebody's after me, somebody's after me." She tried to reassure him that he was not in danger, but he persisted. He then looked outside and returned with a "wild look on him." She recalled that he was "foaming at the mouth" and he kept repeating "thank you God, thank you Jesus" and other "crazy things." He also was pacing back and forth rapidly, appearing to his mother "like a wild animal."

Alarmed by this strange conduct, defendant's mother went into her bedroom, not realizing that he was following her. Defendant pushed open the bedroom door and entered, still with a "wild look on his face." He then punched his mother, without provocation, in the face. The punch knocked her onto her bed. Defendant then left the room.

Defendant's mother went to the bathroom to check herself in the mirror. Her face was swollen and her eye was bloody. She went to the kitchen and again encountered her son. Defendant stated to her, "say that you fell down the stairs," referring to her injury. She replied that she would not do so. At that point, defendant started kissing her "frantically, like a son does not kiss his mother."

Defendant's mother broke free and ran across the street to her neighbors' house. She gained the neighbors' attention by flipping over a barbeque in their driveway. Meanwhile, defendant followed her across the street. He grabbed onto her shirt, only releasing it when the neighbors yelled out his name.

A 911 call was placed to the Howell Police Department. At 8:58 p.m., Officer Jason Symons was dispatched to the location. Upon arriving, Officer Symons stood outside his patrol car. A few seconds later, defendant's mother walked over to the officer from the neighbors' house across the street. He noticed swelling on her face.

Officer Symons proceeded to the Cox residence. The officer entered the house after no one came to the door. He then observed defendant, standing at the threshold of his bedroom. Officer Symons asked defendant if he knew why he was there. According to the officer, defendant responded, "[b]ecause I struck, I hit my mother."

Officer Symons then placed defendant under arrest. As he was doing so, the officer observed in plain view a silver revolver on a bunk bed in defendant's bedroom. The officer handcuffed defendant, removed him from the house, and placed him in the patrol car. Officer Symons returned to defendant's room and seized the silver handgun, pursuant to his authority under the domestic violence laws. He then conducted a search*fn2 of the defendant's bedroom for more weapons. He discovered several handguns, some in wooden cases, and rifles. Additional weapons were also found in the room. In all, the officer seized fourteen guns and a knife from the premises.*fn3

The seized weapons were originally owned by defendant's father, who died in 1999. The father had been a target shooter, hunter, and gun collector. According to defendant's mother and brother, the guns had been stored in boxes in the attic after her spouse's death.

After completing the search, which Officer Symons estimated took about twenty minutes, he placed the weapons in the back of his patrol car. The officer then transported defendant to the police station, where defendant was processed. He then took defendant to the county jail.

In his testimony, Officer Symons described defendant's demeanor when he first encountered him:

Q: And you approached him, is that your testimony?

A: That's correct.

Q: And he spoke to you.

A: That's correct.

Q: What was the tone of his voice?

A: Just a regular monotone voice, not excited.

Q: And what about his demeanor? How did he appear to you?

A: Normal, just standing upright, wasn't jumping around.

Q: Did you make any observations regarding his face?

A: Nothing out of the ordinary.

Q: His mouth?

A: Nothing out of the ordinary.

Q: Did he appear to be under the influence of any drugs or alcohol?

A: No.

Q: Did he appear to be out of breath?

A: No.

Q: So, you placed handcuffs on him.

A: Yes.

Q: Did you have any difficulties placing handcuffs on him?

A: No.

Q: Why was that?

A: Because he complied with what I asked him to do.

The officer further testified that defendant remained calm and cooperative during the ride to the police station, throughout the whole booking process, and in the trip to the county jail.

Following this episode, a Monmouth County grand jury issued a three-count indictment against defendant. In Count One, defendant was charged with fourth-degree acquisition of a handgun without a purchase permit, N.J.S.A. 2C:58-3(a) and N.J.S.A. 2C:39-10(a). Count Two charged defendant with acquiring a rifle or a shotgun without a firearms purchasers identification card, another fourth-degree offense, N.J.S.A. 2C:58-3(b). Count Three charged defendant with the second-degree crime of possessing a weapon in violation of N.J.S.A. 2C:39-7(b), which prohibits certain persons from engaging in such possession. The "certain persons" count was based upon the fact that defendant had been previously convicted in 1986 and in 1995 of multiple drug offenses and burglary, offenses which thereafter disentitled him to possess a gun. Prior to trial, the prosecutor voluntarily dismissed the first two counts.

Defendant, who had no prior history of diagnosed mental illness, presented a diminished-capacity defense at trial. He contended that he lacked the state of mind to "knowingly" purchase, own, or control the weapons recovered from his residence. To support that claim, defendant presented the expert testimony of Dr. Mark Siegert, a licensed psychologist. Dr. Siegert interviewed defendant. He also reviewed defendant's medical records and a videotape of defendant that had been filmed at the county jail.

Dr. Siegert recounted that defendant told him that he first became agitated during the Florida vacation trip. Defendant and his brothers had allegedly tricked their mother into riding a roller coaster at Disney World. This incident led defendant to be concerned that they may have caused her to develop a heart attack. Defendant allegedly became scared, and worried about whether his mother was dying. Defendant told Dr. Siegert that these worries caused him to lose sleep and his appetite. Upon arriving in New Jersey, defendant reportedly was feeling "more and more restless [and] more and more agitated."

Continuing with his testimony on direct examination, Dr. Siegert told the jury that "[s]hortly thereafter, [defendant] smoked some marijuana." Dr. Siegert also found significant that defendant had struck his mother. The doctor noted that "in very close order [after smoking] we have a situation in which he is hitting his mother and then apologizing. And he is certainly talking . . . [in] what seemed a very, very crazy manner." (Emphasis added.)

As to defendant's behavior after his arrest, Dr. Siegert testified that the jail reports indicated that defendant claimed he was hearing voices and believed his family was going to be raped and killed. Subsequent medical reports logged during the next week indicated that defendant was seen "talking to his breakfast tray" about the end of the world, and "[t]hrowing feces, water, and urine and styrofoam." Dr. Siegert also found significance in the videotape, which showed defendant acting violently and being restrained by guards in the corridor. The videotape was played for the jury as part of defendant's case.

Based on these events, Dr. Siegert opined that defendant had suffered a "psychotic break." He described that condition as one in which the person "loses the ability to control [his or her] thinking." He explained that psychosis does not mean the loss of "all capacity to act, [or] to act calmly or sanely all the time." Rather, "[i]t's you just don't have control over when the paranoid or crazy thoughts take over your thinking."

Dr. Siegert recognized that defendant intermittently exhibited a "flat affect," which at times masked his underlying disorder. On this point, defense counsel asked Dr. Siegert whether it would have mattered if the marijuana cigarette that defendant allegedly smoked on March 21 had been laced, as defendant contended, with PCP (phencyclidine):

Q: Would the flat affect that you've described, you indicated that Jeffrey told you he had smoked some marijuana just prior to the incident that occurred on March the 21st, 2004?

A: Correct.

Q: If this marijuana cigarette had been laced with PCP, would there have been a flat affect or would there be a different type of behavior? If we assume hypothetically that Jeffrey's behavior was triggered by PCP[-] laced marijuana, would the behavior have been the same based on your opinion?

A: I don't see how, because PCP, like most drugs, tend[s] to be really intense from the start and decrease. The method, we can rarely state things with 100 percent certainty, but it seems very unlikely to me that that would be the case.

Q: So, based on your analysis of this particular situation, review of the records, et cetera, Jeffrey's behavior at and around the time of March 21st of 2004 was based on a psychotic episode as opposed to a reaction to some kind of a narcotic.

A: Without having blood work I don't see how that question can be settled completely. I don't understand why it wasn't drawn. But since it wasn't, I don't see how one can be sure. It seems very consistent with a plain old psychotic break and that he was entering and in the early phases they have more periods they're not psychotic. Then as time goes on, but his became, he became so psychotic, it's unusual no matter what. We have drug abusers using PCP all the time. And watching that video or these statements they don't get this ill. [Emphasis added.]

Ultimately, Dr. Siegert concluded:

Given what I've seen in the videos, what I've seen in the medical records, what I've read in the police reports, and some of the policemen were quite clear too how very ill he was, people when they're psychotic, Jeffrey[,] I believe when he was psychotic does not, did not intend, and I'm going to speak specifically to the charge here.

Jeffrey says he has no idea, told me he had no idea how the weapons got to his bed. If I hadn't read all of the rest of this, I would have been very skeptical. But having seen this, having heard from his mother how he was already kissing her, you know, one could make a case maybe he was mad at his mother and slugged the mother without that piece of it. Then all the things he was yelling that his mother reported. So, he was quite psychotic.

He told me, Jeffrey has a tendency to make reasons up for things he doesn't understand. I've watched that several times. So, he remembers he was very paranoid. The guns were on his bed he was told. He doesn't remember ever seeing them there. So, it could have been a real maybe, actually he said, I have no idea why they're there. And the next sentence had something to do with I thought people were trying to kill me.

So, I'm assuming in his more rational mind he's putting together a possible theory that maybe that happened. But in terms of his intent, I don't see any intent to have, control weapons. I don't see any intent, any knowledge he had the weapons. So, that to me is what I see the intent in this particular case lacking. I didn't see a criminal intent here.

Q: And your opinion, with respect to March 21st of 2004[,] your professional opinion is, if you can make it succinct and precise, that he simply, I don't want to put words in your mouth. You tell us.

A: My opinion is that Jeffrey did not have the intent for the crime he's charged with.

He did not intend to break laws and be a felon, intend, this is the issue. He did not intend to break laws, to plan this, to do what he's not allowed to do as a felon. [Emphasis added.]

On cross-examination, the prosecutor attempted to impeach Dr. Siegert's conclusion that defendant lacked the requisite intent to possess weapons illegally. During the course of that examination, the prosecutor delved further into defendant's aggressive behavior towards his mother on March 21 that had caused the police to be summoned to their home.

In particular, the prosecutor asked Dr. Siegert, without objection by defense counsel, whether defendant's impromptu admission to Officer Symons that he had struck his mother reflected "an awareness that he had violated the laws." Dr. Siegert responded that defendant "sometimes" had such an awareness of his wrongdoing, but that "[i]t came and went, just not reliably and just not under his control."

The prosecutor also explored with Dr. Siegert defendant's claim that he had smoked marijuana, which the doctor had divulged to the jury in his direct examination. The prosecutor specifically asked Dr. Siegert if his opinion would change if defendant's contention about smoking the marijuana were untrue. The doctor replied that his opinion would be the same. On further questioning by the prosecutor, again without objection, Dr. Siegert acknowledged that if defendant had indeed smoked marijuana laced with PCP, that could have caused him to engage in some bizarre behavior thereafter, such as playing with feces and drinking out of a toilet. The doctor qualified his response, noting that such reactions to PCP were not common.

Dr. Louis Schlesinger, a Board-certified forensic psychologist, testified on rebuttal for the prosecution. Dr. Schlesinger based his analysis on the same medical reports as Dr. Siegert, as well as two sessions where he interviewed and tested defendant.

Dr. Schlesinger concluded that while defendant suffers from some personality disorders, defendant did, in fact, have the mental capacity to commit the charged weapons offense. He testified that "[t]here was no evidence whatsoever of diminished capacity."

In support of his conclusion, Dr. Schlesinger noted that the guns found in defendant's bedroom could easily have been placed there by him before March 21. He also stated that defendant was not likely to have put the guns in his room out of fear that his mother was dying, because they were placed all over the room rather than in one single spot. Additionally, defendant did not react unusually when a policeman entered the house.

Dr. Schlesinger testified that even if defendant was psychotic on the date in question, he still understood what he was doing. He noted that defendant had not moved random things around the residence, other than weapons. This behavior indicated to Dr. Schlesinger that defendant consciously knew which items were, in fact, weapons.

Further, Dr. Schlesinger expressed several observations, again without objection, about defendant's claim that he had smoked a PCP-laced marijuana joint after returning home from the vacation trip. The subject had arisen during Dr. Schlesinger's interview of defendant:

Q: What did he tell you?

A: He told me he didn't know how the weapons got in his room. He thinks the police put them there, simply.

Q: All right. You can continue.

A: Since there was the contention that he was psychotic at this point and that he put them there at that time, you know, at that particular day or a few minutes before or a very short period of time before the police came, the question arises as to what is the psychosis due to? He doesn't have any history of any mental illness at all ever in the past. And so, I asked him about that.

He said, well, he smoked marijuana, as I testified to a couple minutes ago, and he thinks that the marijuana was laced with PCP or phencyclidine, sometimes called angel dust. And so, that's what he said. Then he went on and explained to me why he thought it was laced with PCP. Said he's been smoking pot for 25 years. He has a lot of experience with that. He had PCP once before. He knows what the reaction is. And so, he thought that they were laced with PCP or he said, it could have been something else like ketamine, which is commonly called Special K. It's very similar to PCP.

And he explained that they're putting that stuff on marijuana to boost the potency. He said he smoked PCP in the past, and sometimes he said they put embalming fluid on it and so on.

At this point, the judge gave the jury a cautionary instruction:

THE COURT: Let me just tell the jury once again, the fact that the defendant might have said to the officer or the police, the doctor or the police officer that he smoked marijuana or used marijuana or used it in the past should not play any role in your determination that he's a bad guy or he's a criminal. This case stands and falls on what you hear in court and it's not based upon any prior history of his in regard to that.

Dr. Schlesinger then continued:

And that's basically what he said. That's what he said, I smoked. And sometimes marijuana laced with PCP certainly will trigger out of character, wild, violent type behavior.

Q: What kind of symptoms would it, if a person smoked marijuana laced with PCP, what kind of symptoms would you might see?

A: You could see violence. You could see aggression. And it's sometimes very difficult to bring about a remission of symptoms with PCP. Most people that are psychotic without a substance go into remission very quickly when they're hospitalized or put in a structured situation like a jail, for example. Three or four days and then they must remit, even without medication sometimes.

PCP is very difficult to bring around a remission. It stays with you a long, long time. And I remember back in the 70's when we didn't really know what it was we had people coming to the hospital and we couldn't bring around a remission for ten, 15 days. And it turned out it was PCP. So, that's the type of reaction you can get from that. It makes it very disorganized and it could be violent.

The prosecutor then asked Dr. Schlesinger, once again without objection, about defendant's striking of his mother:

Q: What did he tell you about the assault on his mother?

A: Well, he told me he hit his mother. He said he doesn't really remember doing it, but he believed, he said, I should be found guilty of what I did to my mother that night. She said I hit her in the eye. I don't know if that was more than one time. I'm not sure. I don't know. I'll never forgive myself. Now my brothers want to hurt me. I burned my bridges.

This last response prompted the judge, sua sponte, to issue another cautionary instruction, reminding the jury that defendant is "not charged with assaulting his mother in this court."

Dr. Schlesinger stated that it was "highly unlikely" that defendant's behavior was the result of a delayed reaction to PCP ingestion. The doctor opined that defendant's behavior was indicative of malingering, which he defined as "feigning mental illness." He noted that such malingerers tend to exaggerate or overdo bizarre behavior, in attempting to "portray what they think a truly mentally ill person would do." Such malingering, according to Dr. Schlesinger, would be consistent with defendant playing with feces and drinking out of a toilet.

On cross-examination of Dr. Schlesinger, defense counsel asked him several questions about his client's potential ingestion of PCP. Dr. Schlesinger reiterated that it was "highly unlikely" that defendant's behavior at issue in this case was produced by any ingestion of PCP. Defense counsel acknowledged that there were no lab reports or tests confirming that defendant had indeed ingested PCP on March 21, and that defendant himself was the sole source of that contention.

In addition to hearing testimony from the competing mental health experts, the jury also heard testimony from defendant's mother, his brother Gary, Officer Symons, a firearms dealer who confirmed the nature and operability of the recovered weapons, and a police detective who attested to the chain of custody of the weapons. Defendant did not testify in his own behalf, and he did not present any witnesses other than Dr. Siegert.

After deliberating, the jury found defendant guilty of Count Three. He was thereafter sentenced to a five-year prison term, with a co-extensive five-year parole ineligibility period and associated fines.*fn4 This appeal ensued.


Defendant argues, for the first time on appeal, that the trial court erred in allowing the jury to hear the details of his assault on his mother on March 21 and about his claim that he had smoked a PCP-laced marijuana cigarette that same afternoon. Defendant maintains that these details were presented in an improper cumulative manner, and caused him undue prejudice in the eyes of the jurors. See N.J.R.E. 403. He also contends that the judge's cautionary instructions to the jury, about the limited use of these proofs, were insufficient.

Because defendant objected to none of this evidence*fn5 at trial, our review of this issue is guided by the heightened standard of plain error. See R. 1:7-2 and R. 2:10-2; see also State v. Macon, 57 N.J. 325, 336 (1971). Under that standard, defendant must demonstrate not only that error occurred, but that the error was "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." Ibid. Guided by that standard, we are satisfied that no error, much less plain error, was committed by the trial judge in permitting these proofs. Nor was there error in the related cautionary instructions supplied to the jury.

It is readily apparent that no plain error devolved from the admission of testimony concerning defendant's marijuana use on March 21 and his striking his mother that day, for two reasons. First, the testimony is relevant to defendant's state of mind, and his capacity to have committed the charged crime. Second, the defense itself delved into these very subject matters as a significant aspect of its claim of diminished capacity.

In order to be guilty of the charged weapons offense under N.J.S.A. 2C:39-7(b), defendant must have knowingly purchased, owned, possessed or controlled one or more of the weapons found in his bedroom. Ibid.; see also State v. Jones, 198 N.J. Super. 553, 564 (App. Div. 1985) (the "certain persons" statute does not require proof of an intent to use the weapon for an improper purpose). A "knowing" state of mind connotes a defendant's awareness of the nature of his wrongful behavior, or practical certainty of its ramifications. N.J.S.A. 2C:2-2(b)(2). Hence, it was the State's burden to prove at trial not only that the proscribed weapons were found in defendant's room, but also that he knew the weapons were in his possession or control. State v. Latimore, 197 N.J. Super. 197, 210 (App. Div.) (explaining the state-of-mind requirements for weapons possession offenses), certif. denied, 101 N.J. 328 (1984), overruled on other grounds by, State v. Camacho, 153 N.J. 54, 73, cert. denied, 525 U.S. 864, 119 S.Ct. 153, 142 L.Ed. 2d 125 (1998).

As we have already noted, defendant raised a diminished capacity defense at trial, in an effort to demonstrate that he lacked the requisite state of mind to possess or control the weapons. Toward that end, defendant put forth the expert testimony of Dr. Siegert. The defense psychologist opined that defendant had a "psychotic break" on March 21, and thus could not have had "any knowledge [that] he had the weapons."

As part of the diminished-capacity theme, defense counsel elicited from Dr. Siegert numerous comments and opinions referencing defendant's aberrant behavior on March 21 that occurred before his mother's call for help. In particular, Dr. Siegert elaborated upon defendant's yelling odd things, striking his mother, and kissing her inappropriately. These bizarre acts all tied into the doctor's assessment that defendant had lost control and was experiencing a psychotic episode.

Likewise, Dr. Siegert also referred multiple times to defendant's claim that he smoked a PCP-laden marijuana joint after getting home from the airport. After calling this alleged smoking episode to the jury's attention, Dr. Siegert then explained it was unlikely that the ingestion of PCP would have caused defendant to behave as he had on March 21, at least in the absence of chemical blood analyses showing an adverse reaction to a narcotic. Instead, opined Dr. Siegert, defendant was experiencing a psychotic break not induced by the voluntary ingestion of drugs.

The State's mental health expert, Dr. Schlesinger, presented differing opinions, also commenting on defendant's aberrant pre-arrest and post-arrest behavior and specifically the striking of his mother and the alleged marijuana smoking. In sum, the competing experts each offered their own opinions based upon the same alleged chronology of events.

During his summation, defense counsel emphasized the bizarre nature of defendant's conduct leading up to the patrolman's arrival at the family residence. Counsel specifically hearkened back to the fact that defendant had punched his mother in the face and thereafter kissed her "passionately like a girlfriend." He also alluded to the marijuana smoking and his client's unconfirmed claim that the marijuana had been laced with PCP. All of this supported the defense strategy to portray defendant as a mentally ill individual, who could not have had the mental state to act knowingly in violation of the weapons statute.

Given this context, we are convinced that the proofs now challenged for the first time on appeal were manifestly relevant to the case and properly admitted. Under Rule 401, relevant evidence is proof having "a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401; see also State v. Wilson, 135 N.J. 4, 13 (1994). Defendant's strange and volatile interactions with his mother, as well as his alleged ingestion of PCP-laced marijuana, were clearly part of the surrounding circumstances of March 21, and the proper subject of expert commentary from both the defense and the prosecution. The probative value of these behavioral proofs was considerable and was not substantially outweighed by the risks of undue prejudice, or of confusing or misleading the jurors. N.J.R.E. 403. Even if a timely objection to those proofs had been advanced, the trial judge would have been well within his discretion to admit them. State v. Moore, 122 N.J. 420, 467 (1991).

The mere fact that assault and the possession of PCP-based marijuana are illegal acts does not mandate their exclusion in this context. Indeed, the defense strategically wanted the jury to know that defendant had acted inappropriately on March 21, because that bolstered Dr. Siegert's opinion that defendant was experiencing a psychotic break and was therefore not accountable for his actions and inactions that day.

Our conclusion that the challenged proofs were properly admitted as relevant evidence under N.J.R.E. 401 does not require us to rest upon the separate analytic concepts of "other crimes" proof under N.J.R.E. 404(b), or the so-called "res gestae" doctrine. We mention these concepts in passing, only because they were discussed in the parties' briefs.

The evidentiary requirements for "other crimes" evidence under N.J.R.E. 404(b), and the associated four-part test of State v. Cofield, 127 N.J. 328, 338 (1992), do not apply where, as here, the proofs at issue reveal acts by a defendant that "establish the nature and context of the full criminal event." State v. Torres, 313 N.J. Super. 129, 161 (App. Div.), certif. denied, 156 N.J. 425 (1998). We cannot imagine how defendant's claim of diminished capacity could have been fairly considered by the jury here without informing them of how defendant had been acting on the day in question. As such, the proofs at issue were contextually important to the "'full presentation of the case.'" State v. Martini, 131 N.J. 176, 242 (1993) (quoting United States v. Masters, 622 F.2d 83, 86 (4th Cir. 1980)), cert. denied, 516 U.S. 875, 116 S.Ct. 203, 133 L.Ed. 2d 137 (1995), overruled in part on other grounds by, State v. Fortin, 178 N.J. 540, 633 (2004). Therefore, we need not address the Cofield factors or Rule 404(b) in our analysis.

Likewise, we need not hinge our conclusions upon the doctrinal mantra of "res gestae."*fn6 The proofs simply were relevant, and thus admissible in the absence of strong countervailing indicia of prejudice.

As a separate basis for affirmance, the proofs of defendant's aberrant conduct on March 21 were rightly admitted because defendant himself affirmatively supported their admission at trial. Defendant's expert, Dr. Siegert, specifically discussed that behavior in tracing the reasons for his diagnosis of a psychotic break. Prior to trial, defense counsel tendered a report from Dr. Siegert that previewed his anticipated expert testimony at trial, including his discussion of defendant's pre-arrest aberrant conduct and other pertinent background facts.*fn7 Having tendered Dr. Siegert's report, defendant presumably placed the State on notice that he would mount a diminished-capacity defense at trial. R. 3:12-1. Although the prosecutor referred first to defendant's aberrant behavior in his opening statement to the jury, he clearly did so in anticipation that defendant would be exploring those same matters during the course of the trial.

Having opened the door before and at trial to issues concerning the stability of his state of mind on March 21, defendant cannot now complain that the trial judge allowed the parties and their experts to offer proofs about how defendant was behaving on March 21 before the police found the guns in his bedroom. Once that evidentiary door had been opened, the prosecution was entitled "to place the evidence in its proper context." State v. James, 144 N.J. 538, 554 (1996). Although we find that the trial judge committed no error, any alleged error was surely invited by the defendant's own affirmative disclosures of aberrant behavior, and by his failures to object when the prosecutor delved into the same matters. State v. Sykes, 93 N.J. Super. 90, 95 (App. Div. 1966) (recognizing the principle of "invited error").

Lastly, we are satisfied that there is no merit to defendant's claim that the court's limiting instructions concerning the juror's use of defendant's pre-arrest conduct were flawed or harmful. Because the evidence was admissible independent of N.J.R.E. 404(b), no limiting instructions were even required. Torres, supra, 313 N.J. Super. at 161. Moreover, the instructions that the judge chose to issue were fair, balanced, and timely. The judge took pains to help the jurors understand that defendant was not on trial for hitting his mother or for possessing drugs, and that the unlawfulness of those acts should play no role in the jurors' thinking. We also discern no error in the wording of the final charge on diminished capacity, or any necessity for the judge to have tailored it further to the specific proofs of assault and marijuana smoking.


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