On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 04-09-01310.
The opinion of the court was delivered by: Waugh, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne, Waugh and Newman.
Defendant Wendis Adames appeals from his conviction for the first-degree murder of his father and for third-degree possession of a weapon for an unlawful purpose, specifically the metal baseball bat with which his father was bludgeoned to death. He also appeals the resulting thirty-five year term of imprisonment, which was subject to the eighty-five percent parole ineligibility provisions of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
The issue at trial was not whether Wendis killed his father, but whether he was legally responsible for doing so based upon his alleged mental illness.*fn1 See N.J.S.A. 2C:4-1. For that reason, the outcome of the trial turned largely on the jury's evaluation of expert testimony concerning Wendis's mental health at the time of the homicide.
Because we conclude that the prosecutor improperly commented on Wendis's demeanor at trial during the cross-examination of one of his mental-health expert witnesses and again during summation, we reverse and remand for a new trial.
The following factual and procedural background informs our consideration of the legal issues raised on appeal.
In June 2003, Wendis, then nineteen-years old, was residing with his parents, Emilio and Delis Adames, in Perth Amboy.
Emilio and Delis had two other children: Yvania, who was then twenty-one-years old; and Clari, who was eighteen-years old. Yvania and Clari did not live at their parents' home. Wendis and his parents resided on the second floor of a two-family house. Mercedito Placencia lived on the first floor of the house with his wife and two children.
One day in June 2003, Wendis returned home from work and was angered that his father had not taken out the garbage. Wendis and Emilio, who was not working due to a disability, got into an argument, which escalated into a physical altercation. Delis heard Wendis scream: "Papi, don't hit me!" Shortly after that, Wendis grabbed a baseball bat and returned to the room where the argument had taken place. Family friends intervened and Wendis dropped the bat and ran off. Yvania testified that she saw bruising on her father's head the next day.
Following that argument, Wendis moved out of his parents' house and lived with a family friend. Although he was employed, Wendis was unable to afford the rent and eventually moved back to his parents' residence. Emilio conditioned his return to the home on Wendis attending school and continuing his employment. Wendis enrolled in a vocational high school and was studying to become an electrician.
Yvania and Delis testified that in late May or early June 2004, Wendis started to act strangely. He wore mismatched clothing, went outside without shoes on, stopped cleaning his room, and sat laughing by himself. Wendis, who had apparently not been particularly religious, began collecting religious materials, wearing a cross around his neck, and carrying a Bible.
At trial, Yvania testified that, during this time period, Wendis was smoking marijuana almost daily. She also testified that a friend of Wendis told her that Wendis had experimented with phencyclidine (PCP) on June 10, 2004.
Despite his use of drugs, Wendis was apparently an average student with no disciplinary problems. He was expected to graduate in June 2004. Some of his teachers noted that he had become quieter and more reclusive following the school's spring break in April 2004. Wendis also began attending school "sporadically" and was "very dirty looking."
Delis testified that the relationship between Wendis and Emilio was strained. Wendis was upset that Emilio, who was suffering from three ruptured discs in his back, was not working. Delis stated at trial: "They were very quiet with each other. They just barely said 'hello' to each other."
On June 11, 2004, around 8:00 p.m., Wendis was taken to the emergency room at the Raritan Bay Medical Center by his sisters and the Perth Amboy police because he was "having homicidal ideations towards" a friend. Wendis was also claiming to be a soldier of God on a mission and was insistent that his sister Clari was the Virgin Mary. After leaving Wendis at the hospital, Yvania returned to her parents' home. While there, she entered Wendis's room and discovered a "few" knives.
The nurse who treated Wendis described him as "irritable" when he was informed that he would not be allowed to leave. He informed her that he had used PCP. A drug screening was positive for marijuana use. However, Wendis was not tested for PCP because it was not a "routine" test. The nurse saw no reason to recommend Wendis for a psychological evaluation. Because Wendis was going to be kept in the hospital for observation, the nurse administered a sedative to calm him down.
The following day at 7:40 a.m., Wendis was examined by a second nurse. The nurse testified that Wendis was "[c]alm" and "[c]ooperative." Wendis told the nurse that he did "not want to hurt anyone" and that "[h]is sister made up those statements." The nurse checked Wendis at 9:30 a.m. and at noon. He testified that Wendis presented no signs suggesting that he was suffering from schizophrenia.
Wendis was evaluated by the hospital's attending psychiatrist, Dr. Boris Borodulin, at around 12:50 p.m. on June 12, 2004. Borodulin reported:
Patient admitted to me the use of marijuana and PCP and also at the time of the admission patient was agitated, angry, was delusional and religiously occupied. The urine for PCP was not tested but the drug screen was positive for cannabis. At the time of the evaluation patient denied any history of psychiatric treatment in the past. Denied any history of suicidal attempts or self-[mutilation] and denied any legal problems in the past. [In h]is mental status examination patient was cooperative, pleasant. His speech was relevant and coherent. He was oriented to all three specimens to the time, place and person. He denied hallucination. Denied any auditory or visual hallucinations and no delusional ideas  at least at the time of the evaluation. His [mood] was neutral with a full range of affect. He denied feeling depressed. Denied use of alcohol. And denied suicidal or homicidal ideas. Presented with a fair insight in judgment.
He admitted to me that  the drug use is an issue and we discussed with him treatment.
He agreed to go to an alcohol and drug treatment program in Perth Amboy where he was given a referral by the social worker.
Borodulin diagnosed Wendis with adjustment disorder, which is "a diagnosis commonly used especially in the emergency room setting," to signify a "temporary disturbance" caused by something other than a psychiatric disorder. Borodulin testified that Wendis did not "meet the criteria for inpatient treatment" and was therefore not involuntarily committed.
Wendis was discharged from the hospital the same day and given a referral to a drug addiction treatment center.
The following day, June 13, 2004, Yvania was at her parents' house watching television with Wendis. Suddenly, Wendis jumped up and grabbed a knife from the top of the entertainment center. He headed towards his father's bedroom. Wendis stated: "Let's do this." Yvania asked him: "Do what?" Wendis responded "It's time." Yvania took the knife away from Wendis and asked him what he was doing. Wendis responded that his father had put the knife on the top of the entertainment center the night before "because he heard noises." Yvania questioned Emilio about the knife and he denied having placed it in the living room.
On the afternoon of June 16, 2004, Emilio, Delis, and Wendis were all at home. Delis had a headache and was taking a nap. Emilio went next door to discuss a car insurance question with the neighbors, John and Amanda Jones, leaving Wendis at home. The Jones' ten-year old daughter, J.J., and her friend, S.R., were playing in the back yard. The Adames and Jones' backyards were separated by a fence that did not block the view from one yard to the other.
Shortly after Emilio left the Jones' house to return home, J.J. heard him scream for help and yell out for Wendis to stop hitting him. J.J. looked into the Adames' backyard and saw Wendis hitting Emilio with a metal baseball bat. S.R. testified that she heard the bat hit what sounded like the floor. She looked into the Adames' backyard and saw a younger-looking man speaking angrily in Spanish as he hit an older-looking man in the head with a metal baseball bat.
J.J. ran into her house and told her mother what she had seen. Amanda Jones ran outside and saw Wendis repeatedly hitting Emilio in the head with a baseball bat. She testified that Wendis had no expression on his face, "[n]one whatsoever." She also noted that Emilio was unarmed. Amanda told her mother to call the police.
Upon hearing J.J.'s screams, John Jones also ran outside. He saw Emilio laying on the ground with his head "busted all up" and Wendis hitting him on the head with a baseball bat. He testified that Wendis was smiling as he hit Emilio with the bat.
John asked Wendis why he was hurting his father, but Wendis told John to leave him alone. John, along with his stepson, entered the Adames' backyard and tried to take the baseball bat away from Wendis. However, they backed off when it appeared that Wendis was going to come after them with the bat.
Delis was awakened from her nap by her downstairs neighbor. She looked into the backyard and saw Emilio laying on the ground and Wendis holding a baseball bat over him.
Placencia was alone on the first floor of the home when he heard the commotion in the backyard. He walked to the back of the house and saw Wendis approaching the house holding a baseball bat. He also saw Emilio lying on the ground in the backyard with a large amount of blood around his head. Realizing what had happened, Placencia shut the back door to prevent Wendis from getting in the house.
Wendis attempted to get into the house through a partially opened window. Placencia tried to shut the window to keep Wendis out. When Wendis asked Placencia to let him in, Placencia responded: "If you give me the bat, I'll let you in." Wendis complied and entered the house.
As soon as Wendis was in the house, Placencia grabbed him and held him from behind. Wendis asked Placencia: "Why are you holding me? I don't have any problems with you." Placencia responded: "Do you want any more trouble? Look at what you've done. That is your father. That was your father, who used to give you money, food, everything." With a smile on his face, Wendis asked: "What did I do?" Placencia held Wendis until the police arrived.
Perth Amboy Police Officer Rafaelito Cruz was dispatched at approximately 5:20 p.m. to the Adames' home. When he arrived at the house, there were several people standing outside yelling: "[H]e hit him with the baseball bat." Cruz went to the backyard where a second crowd had gathered. He saw Emilio laying face down on the ground. He approached Emilio and "observed brain matter protruding from his head, and a pool of blood around his head." Cruz did not see any signs of movement or breathing from Emilio. He called for assistance from a medical unit.
Someone directed Cruz's attention to the back of the house. Cruz approached and saw Placencia holding Wendis in a "bear hug." Upon instruction from Cruz, Placencia released Wendis and opened the back door. Cruz entered the house and as he approached, Wendis put both of his arms "[s]traight out in front [of him], about chest high. Both hands were closed, like a fist." Cruz described Wendis as "very calm" and having a "blank look." He offered no resistance when Cruz handcuffed him.
Cruz was joined at the scene by several other officers and paramedics. He placed Wendis in the back of a police car and stayed with him for approximately thirty minutes. During this time, Cruz did not engage Wendis in conversation. He testified that Wendis did not exhibit any strange behavior while he sat in the police car. Rather, "[h]e was just sitting there."
Wendis was eventually transported to the Perth Amboy Police Headquarters. Once there, he waived his Miranda*fn2 rights and signed a notification of rights form. Perth Amboy Detective Joseph Sciortino and Lieutenant John Maslak of the Middlesex County Prosecutor's Office questioned Wendis. The interview session commenced at approximately 7:30 p.m. and lasted only fifteen to twenty minutes. Sciortino described Wendis as being "very relaxed, composed, and he actually yawned, and stated that he needed to go to school tomorrow, the next day, to take an exam." When asked if he knew why he was at the police station, Wendis "indicated he was in his room. He heard a loud noise, went outside, saw his father on the ground, somebody held him, the police came. He indicated that he wasn't responsible for what happened." Neither Sciortino nor Maslak detected any smell of marijuana or alcohol on Wendis. Maslak testified that, during the interview, he had no "suspicion that [Wendis] might have had mental problems."
The medical examiner determined that Emilio's cause of death was severe craniocerebral injuries due to blunt force trauma. The autopsy revealed multiple blunt force trauma to the head, chest, back, and extremities.
On June l8, 2004, Wendis was tested for drug use. A blood screen tested positive for marijuana; a urine screen also tested positive for marijuana and negative for PCP.
Wendis was indicted for first-degree murder, N.J.S.A. 2C:11-3(a)(1),(2), and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d). Wendis pled not guilty and raised mental incapacity under N.J.S.A. 2C:4-1 as an alternative defense. At trial, both the defense and the prosecution presented extensive expert testimony as to Wendis's mental health.
Dr. Jonathan Mack, an expert in neuropsychology and forensic psychology, testified on Wendis's behalf. Mack evaluated Wendis in June 2005 and January 2006, reviewing all relevant documentation and medical records. Wendis maintained that on June 16, 2004, he had gone to school, returned home, and was in his room before being grabbed by the police. Wendis told Mack:
[T]he mother raised the son to kill the father. My mother and God was from the planet Pluto. And Pluto and Mars, they don't get along. And the ones from Mars melt the ones from Pluto.
Now, it's my mom and God, and God is supposed to be your Pluto. And he was trying to save me. And I was conversating with the voices, and the God from Pluto was telling me that his son could help me. And I asked the voice to let me have him. And the voice, who was supposed to be my mother, messed up and she was going to kill me. And I ...