October 8, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CURTIS DARYL COOPER, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 05-04-0520.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 16, 2009
Before Judges Payne and Miniman.
On April 28, 2005, defendant was indicted for second-degree arson, N.J.S.A. 2C:17-1a(1) and (2), and third-degree criminal mischief, N.J.S.A. 2C:17-3a(1). A jury trial took place, during which an insanity defense was asserted. At the trial's conclusion, the jury convicted defendant of the lesser-included offense of third-degree reckless arson, N.J.S.A. 2C:17-1b(1) and (2), and third-degree criminal mischief. After denying the State's motion for an extended term, the trial judge merged the criminal mischief conviction into the arson conviction and sentenced defendant to a custodial term of three years. The judge found to be applicable aggravating factors 3 (the risk that defendant will commit another offense), 6 (the extent of defendant's prior record) and 9 (the need to deter), N.J.S.A. 2C:44-1a, with no mitigating factors.
Defendant has appealed his conviction and his sentence. On appeal, he presents the following arguments:
THE DEFENDANT'S RIGHTS TO CONFRONT THE WITNESSES AGAINST HIM AND TO A FAIR TRIAL WERE VIOLATED WHEN THE TRIAL COURT ALLOWED THE PROSECUTOR TO INTRODUCE STATEMENTS OF PERSONS WHO DID NOT TESTIFY AS SUBSTANTIVE EVIDENCE OF GUILT UNDER N.J.R.E. 705.
A. The Prosecutor Was Improperly Allowed, Over Objection, To Use A Statement of Walter Jones, Who Did Not Testify, As Substantive Evidence Of The Cause Of The Incident.
B. The Prosecutor Was Improperly Permitted To Ask Dr. Weiss About Unsubstantiated Prior Acts of Violence Set Forth In Medical Records.
THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY ON DIMINISHED CAPACITY DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10. (Not Raised Below.)
NO OTHER CONCLUSION CAN BE REACHED BUT THAT THE EFFECT OF CUMULATIVE TRIAL ERRORS IN THE CONTEXT OF THE PROCEEDINGS BELOW DEPRIVED DEFENDANT OF A FAIR TRIAL AND WARRANT REVERSAL.
THE COURT BELOW ERRED IN FAILING TO PROPERLY CREDIT DEFENDANT WITH A MITIGATING FACTOR.
a. The Trial Court Abused Its Discretion in Failing To Impose A Probationary Sentence.
Following our review of the record in light of the arguments of counsel and applicable precedent, we reverse.
The record indicates that at approximately 10:45 p.m. on January 5, 2005, defendant used gasoline to set fire to clothes in the shower of the bathroom of a motel room that he and his girlfriend were occupying. Defendant confessed to setting the fire.
At trial, defendant offered an insanity defense. His expert psychiatrist, Dr. Kenneth Weiss, testified that, in his opinion, at the time of the occurrence defendant was suffering from a schizoaffective disorder with depressive episodes and substance abuse, as to which defendant had a significant history of fourteen psychiatric hospitalizations from September 1998 to 2005, at which times he was diagnosed, variously, as suffering from chronic undifferentiated schizophrenia, paranoid schizophrenia, schizoaffective disorder, and polysubstance abuse. According to Dr. Weiss, defendant had fragmentary recollections of the events of January 5. This did not surprise the doctor "because individuals in the midst of a psychotic episode under very highly emotionally charged circumstances often do not remember certain aspects of the situation." Dr. Weiss testified:
As a prelude to what happened on the date in question, after stopping his medications, [defendant] did the best he could to control [his hallucinations] by drinking and, of course, that's a losing proposition. It didn't work. The hallucinations got worse and this went on for a few weeks and by the time that the date of the incident came around, he was extremely troubled by these auditory hallucinations, telling him to kill himself and the typical thing that he experiences so by the time of the incident, he was sort of at his wit's end with respect to how he would cope with it. He didn't have medication, alcohol wasn't working, and he began to think that he would have to find a way to hurt himself in order perhaps to get the voices to stop.
There was a can of gasoline in the motel room that he had been using for his landscaping work to use on the machines that had gasoline powered engines, and that he believes he used that and that he feels he blacked out at some point during that and that's why he didn't have much of a recollection. He was not defensive about it. He felt that this is something that he had done and that he had done it in the midst of this mental episode that he had.
Dr. Weiss conceded that defendant intended to set the fire. However, he testified that:
Mr. Cooper at the time of the incident was suffering from a mental disease, schizoaffective disorder and that produced a defect of reason namely that he had the belief that setting the fire would help him in some way and perhaps kill him to the degree he did not know what he was doing was wrong.
The State, in contrast, contended that defendant was not insane at the time of the fire and that defendant set it out of anger at his girlfriend, with whom he had a domestic dispute earlier in the day, for which the police were called, and whose life he allegedly threatened in a statement to a non-testifying witness, Walter Jones, early in the morning after the fire. Psychologist Elliott Atkins, testifying for the State on rebuttal, agreed with Dr. Weiss that defendant was suffering from a mental illness and substance abuse. Additionally, he agreed that defendant, at times, heard voices and, on the night in question, was acting irrationally. However, Dr. Atkins believed that defendant was able, at the time, to understand that his conduct was wrong, and thus he was not insane at the time of the fire. Additionally, after comparing various versions of the events of the evening given by defendant to his friend Jones, to the police and to Dr. Weiss, Dr. Atkins suggested that defendant's account to him of what had taken place was not truthful. He noted as well that the results of the Minnesota Multiphasic Personality Inventory administered to defendant could not be scored because "his answers were considered to be malingered."
The judge instructed the jury with respect to defendant's insanity defense; he did not give a diminished capacity charge, sua sponte.
On appeal, defendant first claims that it was error to permit cross-examination of his expert, Dr. Weiss, by use of hearsay upon which the expert did not rely. This hearsay consisted of the statement given by Walter Jones recounting what he had been told by defendant in the early morning after the fire, including defendant's threat to kill his girlfriend. The hearsay also included reports of prior acts of violence referenced in defendant's medical records.
The trial record reflects that, at approximately midnight on the night of the fire, defendant appeared at Jones's door, covered with soot and smelling of smoke. Jones refused to talk with defendant, stating that he was with his fiancée. However, upon defendant's request, Jones loaned defendant a jacket, since the night was cold, and defendant was not properly dressed. Defendant returned to Jones's residence at 4:00 a.m., routed Jones from bed, and allegedly declared to Jones that he had done "some messed up shit," having "burnt up the Beverly Court Motel." When asked why, defendant allegedly responded that "they stole his cell phone and clothes." Upon realizing that defendant's statements were "for real," Jones asked a neighbor to call the police. While waiting for them to arrive, defendant stated to Jones that "he was gonna kill his girlfriend and when the cops came for him he would not be taken alive." Upon their arrival, the police arrested defendant without incident. Thereafter, Jones gave a two-page statement detailing what defendant had allegedly told him. The statement made no reference to defendant's later claim that he was hearing voices at the time of the incident.
Despite the fact that Jones was not called as a witness at trial, the prosecutor sought to use his statement when cross-examining Dr. Weiss. Additionally, the prosecutor sought to cross-examine Dr. Weiss with respect to his consideration of defendant's involvement in the domestic dispute occurring on the morning of the fire - a matter that was alluded to by the investigating officer in his report on the fire. Defense counsel objected to the introduction of such hearsay, and a hearing out of the presence of the jury occurred regarding the extent to which Dr. Weiss had relied upon this evidence in formulating his opinion. Additionally, at the hearing, an issue was raised as to whether Dr. Weiss could be cross-examined on statements in medical records indicating that defendant "had hallucinations about wanting to stab somebody and having a fight with his girlfriend, hitting someone with a baseball bat" and that he had lost "about 10 jobs secondary to anger."
At the hearing, the judge acknowledged that, as the result of N.J.R.E. 404(b) "concerns," he had made a pre-trial ruling excluding the domestic violence incident from the State's case-in-chief. He also acknowledged that use of the hearsay in cross-examining Dr. Weiss depended on whether the doctor had "unequivocally expressed reliance" upon that hearsay in reaching his conclusions. Nonetheless, when Dr. Weiss was recalled to the stand he stated that he had "considered" Jones' statement and "reviewed" the police report,*fn1 the judge found a sufficient foundation to have been laid to permit the cross-examination that the prosecutor proposed.
As a consequence, when cross-examination resumed, the jury was informed: that there had been an incident of domestic violence or a dispute on the morning of the fire; that hospital records contained references to defendant's loss of temper and consequent loss of ten jobs, defendant's attempts to assault his girlfriends, his threatening of a supervisor with a knife, and his homicidal ideations; and that, after the fire, defendant had threatened to kill his present girlfriend. Further, the prosecutor suggested in his cross-examination that this pattern of angry reactions by defendant to various situations was relevant to defendant's motive and intent in setting the fire, and that his resort to a defense of insanity simply perpetuated an earlier pattern of checking into psychiatric facilities after getting into trouble. Additionally, the prosecutor utilized the absence of any mention by Jones of defendant hearing voices to undercut Dr. Weiss's opinion that defendant's desire to rid himself of auditory hallucinations directed his conduct in setting the fire.
On appeal, defendant makes no legal argument with respect to the use of evidence of the morning domestic violence or domestic dispute in cross-examining Dr. Weiss. Further, we have not been provided with the transcript of the pretrial proceeding in which the judge expressed his concerns regarding the admissibility of the evidence pursuant to N.J.R.E. 404(b). For these reasons, we decline to further discuss this aspect of the judge's ruling, and we turn to the prosecutor's use of the Jones statement.
The Supreme Court has held that an expert may be required on cross-examination to disclose the underlying facts and data upon which the expert relied. State v. Pennington, 119 N.J. 547, 583 (1990); State v. Rose, 112 N.J. 454, 499-500 (1988); N.J.R.E. 705. This disclosure requirement extends to inadmissible evidence, including hearsay, upon which experts may rely if the evidence is "of a type reasonably relied upon by experts in a particular field in forming opinions upon the subject." N.J.R.E. 703; State v. Spencer, 319 N.J. Super. 284, 299 (App. Div. 1999). However, when the expert has not relied upon hearsay evidence in formulating an opinion, that evidence may not be utilized on cross-examination. Pennington, supra, 119 N.J. at 583. To determine the existence of reliance, counsel can make inquiry of the expert. However, "in the face of a denial, [counsel] may not use the details of [the hearsay] as the basis of further cross-examination." Ibid. Further, the mere fact that an expert has considered hearsay is insufficient to permit cross-examination when the expert has expressed his lack of reliance on that hearsay. Spencer, supra, 319 N.J. Super. at 300.
In the present case, as in Spencer, Dr. Weiss reviewed Jones's statement and considered it in reaching his conclusions, but did not rely upon it. The judge's determination to permit cross-examination, nonetheless, resulted in the introduction of hearsay that the jury was otherwise not permitted to hear, thereby denying defendant his constitutional right of confrontation. Id. at 299-300; see also State v. Burris, 298 N.J. Super. 505, 512 (App. Div.), certif. denied, 152 N.J. 187 (1997).
It is noteworthy in this regard that Jones's statement was also extensively utilized by the prosecutor during his direct examination of his rebuttal expert, Dr. Atkins. In contrast to Dr. Weiss, Dr. Atkins testified that the statement of Walter Jones was "very important" to him in rendering his opinion. Thus, the requirements imposed by Pennington for use of the statement in connection with the direct examination of Dr. Atkins were met.
Nonetheless, defense counsel objected to the prosecutor's use of Jones's statement, arguing that the prejudicial effect of the admission of its contents outweighed its probative value and citing State v. Vandeweaghe, 351 N.J. Super. 467 (App. Div. 2002), aff'd o.b., 177 N.J. 229 (2003). Counsel's objection was overruled by the judge after argument by the prosecutor that the material was already before the jury as the result of the extensive cross-examination of Dr. Weiss. However, the judge then instructed the jury:
I am going to instruct you, the jury, that allegations of alleged improper conduct are not to be considered by you for the substantiveness of that alleged improper conduct. Those instances are used for the sole purpose of establishing a psychiatric or psychological diagnosis and are before you for the purpose of evaluating that, that is the opinion of the expert for you to understand a portion of the foundation used by each expert in formulating the opinion. Do you understand that? They're not to be used by you, these allegations of alleged improper conduct are not to be used by you to conclude that on the night in question that Mr. Cooper acted in conformity with the alleged improper conduct or that he is a bad person or that in any other way because of that alleged improper conduct that he committed the crime in question. The limited purpose of this testimony and its sole purpose is for you to evaluate the foundation upon which each expert, each of the two experts, psychiatric and psychological expert proffered their opinion to you.
However, the judge's instruction was inaccurate, insofar as it related to the Jones statement, since Dr. Atkins relied on that statement substantively in determining that defendant's account to him, given ten months after the event, in which defendant stated that he wished to kill himself because he was depressed, was not accurate. Defendant's statement that he was suffering from auditory hallucinations was likewise dismissed because it did not appear in the Jones statement. Of even greater significance, Dr. Atkins utilized defendant's alleged statement to Jones that he had done "some messed up shit" as evidence that, at the time of the crime, defendant recognized his conduct as wrong.
In circumstances in which an expert has substantively relied upon hearsay in formulating his opinion, we have held that the "probative value of the [d]octor's opinion will depend upon whether there is, from all the evidence in the case, independent proof of the statement made by the accused." Vandeweaghe, supra, 351 N.J. Super. at 480-81; see also State v. Farthing, 331 N.J. Super. 58, 78 (App. Div.), certif. denied, 165 N.J. 530 (2000). However, we have also held that a proponent should not elicit hearsay evidence that he or she is not prepared to prove substantively" and, if proof is lacking, the judge should consider excluding the evidence under N.J.R.E. 403 because, in the absence of substantive proof, its probative value is substantially diminished by the risk of undue prejudice given the constitutional implications. Once the jury has heard the hearsay, it is very difficult to unring the bell with a cautionary instruction that the weight of the expert's opinion is dependent upon the facts upon which it is based. [Vandeweaghe, supra, 351 N.J. Super. at 482.]
In the present matter, a Rule 403 analysis was rejected by the trial judge who, apparently relying on his prior mistaken ruling that the use of the Jones statement would be permitted in connection with the cross-examination of Dr. Weiss, determined that such analysis was no longer warranted because the objected-to hearsay was already before the jury. We regard this determination as a further error on the judge's part. We are satisfied that defendant's hearsay admissions to Walter Jones, as contained in Jones's statement to the police, should never have been brought to the attention of the jury in the absence of testimony by Jones, himself, at trial. Further, we conclude that the judge's combined errors in permitting the use of this double hearsay violated defendant's right to confrontation and deprived him of his right to a fair trial. A new trial is therefore warranted.
We dispose of the parties' arguments with respect to the admissibility of bad acts contained in prior medical records quickly, by observing that admissibility is governed by the principles that we have just expressed, as well as those set forth in N.J.R.E. 404(b) and N.J.R.E. 803(c)(4). We trust that if this matter is retried, consideration will be given to the foregoing before any evidence of bad acts is allowed in connection with the examination of the parties' experts. Because we lack the medical records in question, and we thus are unaware of the context in which the statements were made, we express no further opinion as to their admissibility or use in connection with the experts' testimony.
Defendant argues, additionally, that the trial judge erred in failing to instruct the jury, sua sponte, on the defense of diminished capacity. We defer to the remand judge a determination of whether such a charge is warranted upon retrial, recognizing that the evidence of defendant's mental condition introduced at that trial may differ from the evidence initially presented.
In light of our determination to reverse the conviction in this case, we likewise decline to address defendant's sentencing arguments.
Reversed and remanded.