On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 03-05-0704.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 16, 2009
Before Judges Reisner and Chambers.
Defendant Leonard Salesky appeals from a June 5, 2008 order denying his petition for post-conviction relief (PCR). We affirm.
Based on the brutal beating of his estranged wife, Salesky was convicted of attempted murder and associated offenses and was sentenced in 2005 to a fifteen-year prison term subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. At his trial, defendant claimed that at the time of the assault, he suffered from insanity or diminished capacity. The jury nonetheless convicted him.
The following pertinent evidence was introduced at the 2005 trial. Leonard Salesky and A.S.*fn1 were married in 1959. A.S. testified about several prior incidents of domestic violence that had taken place during their marriage, including a time when defendant pushed her into their Christmas tree, and an incident in which he threw food and locked his family out of the house. She also testified about an incident in which he punched her several times and chased her down the street, and another episode in which he hit her in the head. On two other occasions, he threatened to kill her.
The Salesky's son Phillip also testified about these incidents, which he witnessed during his childhood. He corroborated A.S.'s testimony that, in one incident, defendant threw a plate of roast beef out the window, locked his family out of the house, and was arrested after he scuffled with the police. According to Phillip, a week later, defendant began punching A.S. in the back after receiving a court notice relating to his arrest. She could not walk for a month after this incident. He also recalled an incident in which his father hit A.S. in the face and another in which defendant pushed her out of the bedroom.
A.S. testified that she and defendant separated in 1984, and she remained living in the marital home. She testified that the couple remained separated, as opposed to divorced, for the next seventeen years because defendant told her "not to ask" him for anything, and she complied. A.S. filed for divorce in 2001, after defendant told her that he wanted to move back into the house and live with her.
On December 6, 2002, while the divorce proceedings were pending, A.S. heard someone at her front door and found defendant outside trying to break in.*fn2 A.S. testified that defendant told her, "I'm going to kill you, you F-ing bitch, you're destroying my business." A.S. told him to leave or she would call the police. She took the cordless phone into her room, barricaded the door, and called 9-1-1. Defendant picked up the other phone in the house while A.S. was speaking with the 9-1-1 operator, and then forced his way into A.S.'s bedroom, yelling that he was going to kill her. She testified that defendant repeatedly punched her and began strangling her.
The police officers who responded to A.S.'s 9-1-1 call testified that they arrived at the house at around 9:30 a.m. and arrested defendant after a struggle. A.S. was taken to the hospital with multiple injuries. Defendant was also taken to the hospital where he was offered, but refused, treatment for a cut on his hand. The officers then took him to the police station.
According to Officer Willard, at about 1:30 p.m., which was several hours after the arrest, he permitted defendant to receive a telephone call from a friend, Ms. Moody. Willard testified that he overheard defendant telling Moody "to tell his employees to go home for the day and to not bail him out from jail, because when he gets out, he's going to kill that fucking bitch." Later that day, A.S. obtained a restraining order against defendant. The police officer who served the order on defendant at the jail at about 4:30 p.m., testified that when she handed defendant the restraining order, he responded "It will not help her."
At the end of the trial, defendant testified concerning the alleged acts of violence early in the marriage. He denied ever hitting his wife, and testified that she was verbally abusive to him on many occasions. He admitted that on one occasion, he may have threatened to kill her, but explained that the phrase "I'm going to kill you" was "part of my normal language." He used the term frequently, without meaning it.
The defense did not dispute that on December 6, 2002, defendant brutally attacked his wife. Rather, the defense offered testimony from two expert witnesses concerning defendant's diminished capacity or insanity. Dr. Catherine Barber, Ph.D., an expert in clinical and forensic psychology, evaluated defendant between June 2003 and August 2003. In forming her opinion, Barber relied on her interviews with defendant, a Personality Assessment Inventory (PAI) test, and "reports of other doctors who had examined him." Barber testified that, at the time of the incident, defendant was "exhibiting a clearly altered mental state . . . a brief reactive psychosis." Barber testified that defendant's psychosis resulted from the stress he was under as a result of business demands and a "very acrimonious divorce." Defendant reported "having lost his ability to see in color" at the time of the incident, which reflected deranged thinking. Barber concluded that defendant's "ability to formulate intent or purposeful behavior was significantly impaired by his psychotic state." However, Barber explained that "psychosis" was not a diagnosis contained in the DSM IV; rather it was a symptom of various psychotic disorders. She also admitted on cross-examination that a "brief psychotic disorder" was a very rare condition according to the DSM IV.
On direct examination, Barber testified that a psychiatrist who evaluated defendant during a hospitalization in May 2003 diagnosed him as having "psychosis NOS." Barber also stated on direct examination that none of the reports about defendant prepared by other doctors changed her opinion about his mental state on the date in question. It was not clear, however, which doctors she was referring to.
On cross-examination, Barber explained that the "brief psychotic episode" began earlier on December 6, 2002, when defendant had a heated argument with an employee at work, and ended either "when he ceased the physical attack on his wife" or when the police arrived. Barber admitted that her diagnosis was based essentially on defendant's statements to her about seeing in "black and white" as well as his statements that his thinking was "disorganized" at the time and "that he was experiencing something he had never experienced before, that he was extremely out of it." However, she acknowledged that she did not know about defendant's prior acts of violence when she formed her opinion of his mental state, and had not questioned him about any prior violent acts. She also admitted on cross-examination that on December 27, 2002, defendant gave another defense doctor, Dr. Clifford Jones, a much more detailed description of the assault than he had given her.
Barber stated that defendant was not suffering from "full blown" delusional thinking, but that his belief system "approaches the delusional." Barber confirmed that defendant reported thinking as he left work on the day of the incident that he was "going to kill that bitch," and that the only way the "pressure would be off" was if he was "in a cell." Defendant "continued to vigorously talk about his hatred of his wife and his animosity toward her" in his interviews with Barber. Barber also stated that defendant "most likely" knew the nature and quality of his acts on the day of the attack. Barber did not think he met the criteria required to establish "insanity."
During cross-examination, the prosecutor asked Barber if she was "familiar with an individual by the name of Dr. Robert Sadoff," to which Barber replied affirmatively. The prosecutor then asked who Sadoff was, and the defense objected. The sidebar was not recorded, but the prosecutor asked upon resuming questioning if Barber had been given a copy of Sadoff's report. Barber said that she had reviewed the report the night before her testimony during a meeting with the defendant's attorney. Barber did not specifically testify that she considered Sadoff's report in arriving at her own conclusions, nor did counsel for either side ask her that question. However, the prosecutor elicited from Barber that the defense had asked Sadoff to examine defendant and provide a report.
The prosecutor asked if there was "anything in [Sadoff's] report that would change your opinion about . . . the defendant's state of mind on December 6, 2002," to which Barber replied, "[n]o. In fact, [I] found it very consistent with my observations." The prosecutor further asked Barber if her conclusions about defendant's mental state differed from Sadoff's conclusions. Barber responded, "[n]ot quite. The way I would put it is that his description of his mental state was very similar to mine, but his ultimate conclusion as to what legal standard it did or did not meet differed."
Q: So, [Sadoff's] conclusion about the mental state was the same as yours? Yours is that [Salesky] was psychotic at the time,
A: Yes - And . . . Dr. Sadoff refers to it as dissociative disorder . . . or dissociative episode. . . .
Q: That's not psychotic disorder.
A: They're very similar, . . . . They're discriminable, but they have a great deal of overlap.
Q: Okay. Isn't it true that Dr. Sadoff said, "I cannot state that Mr. Salesky was psychotic at the time, . . . and . . . I cannot state that he did not know what he was doing or did not know that it was wrong."
Barber testified that Sadoff characterized defendant as having had a "dissociative episode," rather than a psychosis. The prosecutor then questioned Barber about whether she agreed with Sadoff's opinion that defendant "knew what he was doing and acted with intent:"
Q: Doesn't [Sadoff] say that [Salesky] knew what he was doing and he acted with intent, albeit in an altered state of consciousness?
A: He does. And, then later he says there was no conscious deliberate intent to kill A.S."
Q: So, he was acting with intent. [Sadoff] just feels that he wasn't intending to kill her. He might have been intending to hurt, he might have intended to break into the house, but he wasn't intending to kill her?
A: I think that's probably a fair characterization of what [Sadoff] means by that.
Barber clarified that Sadoff's report indicated defendant acted with intent, but not with deliberate intent to kill. The prosecutor asked Barber if ...