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State v. O'Brien

December 29, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
PETER J. O'BRIEN, DEFENDANT-APPELLANT.



On certification to the Superior Court, Appellate Division.

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).

In this appeal, the issue is whether the trial judge's questioning of witnesses, including defendant and his expert, denied defendant a fair trial. In addition, the Court considers whether the judge improperly denied the jury's request for written instructions.

Defendant Peter J. O'Brien stole approximately $40,000 from his parents (Josephine O'Brien and "stepfather" Anthony Napoleon) while they were away in Florida. On May 7, 2004, after picking up his parents from Newark Airport and driving them to their home in Toms River, defendant went into his bedroom, retrieved a loaded handgun and a pillow, proceeded into Mr. Napoleon's office and shot him from behind several times at close range. Defendant's mother was in the bathroom when she heard the shots. When she walked out of the bathroom to see what was happening, defendant shot her twice at close range. Mr. Napoleon looked at defendant and said "I love you." Defendant responded "I love you too" and left the house. After disposing of the evidence, defendant went to McDonald's with friends. In the meantime, Mr. Napoleon called 9-1-1, reported the shootings and implicated defendant as the shooter. When police arrived on the scene, defendant's mother was found dead in the house and Mr. Napoleon alive, outside the house, near the curb. Mr. Napoleon was taken to the hospital, where he was pronounced dead.

Defendant was contacted by police while he was at McDonald's. Subsequently, defendant and a female friend went to the Dover Township Police Headquarters where they were met by Detective Thievon, who escorted defendant and his friend into an interview room to collect basic information. Detective Thievon left when Detective Bajada of the Dover Township Police Department and Investigator Mitchell of the Ocean County Prosecutor's Office arrived to conduct a formal interview. Defendant waived his Miranda rights. Investigator Mitchell told defendant that the police were in possession of a 9-1-1 tape on which Mr. Napoleon implicated him in the homicides. Defendant was silent for approximately thirty seconds then said "I did it." He later made a full confession that was introduced at trial.

On June 29, 2004, defendant was indicted by an Ocean County Grand Jury and charged with two counts of murder in the first degree, two counts of second-degree possession of a firearm for an unlawful purpose, third-degree unlawful possession of a weapon, and third-degree theft by unlawful taking.

At trial, defendant advanced a diminished capacity defense based on drug intoxication and depression. He did not contest that he killed his parents, but testified that he could not remember shooting them or making a confession. Defendant also presented an expert witness, Dr. John Verdon, a psychiatrist concentrating on addiction medicine, who opined that defendant's drug intoxication and depression impacted on his ability to act knowingly or purposefully.

At the close of defendant's lengthy testimony, the trial judge questioned him regarding his lack of memory about the incidents surrounding the shooting -- a matter which had been explored extensively and repeatedly during direct, cross, and redirect examination of the witness. The judge repeatedly questioned defendant about remembering some things while not remembering others. After engaging the witness, the judge reminded the jury that it was "not to glean anything from my question or give any more weight to my questions." The judge also interjected himself during the direct examination of Dr. Verdon. Dr. Verdon testified that defendant had a marijuana addiction, and that he also abused other mood-altering substances, causing defendant to experience depression and "profound memory loss." The judge then lasered in on Dr. Verdon's testimony in connection with defendant's claim at trial that he had "some" memory of the encounter with Mr. Napoleon. The judge challenged Dr. Vernon concerning his statements about how long a person can remain under the influence of marijuana and what kinds of physical effects would be palpable hours later, in the process engaging Dr. Vernon in a detailed colloquy of the timing of the events leading up to the shootings. At the end of that exchange, the judge again admonished the jury not to glean from his questioning that the court had any opinion as to how the jury should decide the matter and that the jury was the "sole judges of the facts."

The judge also questioned two of the State's witnesses, including Investigator Mitchell who testified on direct examination regarding his experience and his observations of defendant at police headquarters on the day the statement was given. The judge questioned Mitchell about the extent of his experience and training, and more particularly about whether or not protocol called for taking a urine sample under the circumstances. Mitchell testified that no chemical tests had been performed because defendant did not appear to be under the influence of any drugs or alcohol.

Finally, at the close of trial, the jury requested that it be provided with the judge's instructions in writing. The judge denied that request, noting that was "not part of our process." The judge did acknowledge, however, that other judges have done it, but that he did not consider it to be a "good practice."

The jury returned a guilty verdict shortly after deliberations began. Defendant was sentenced to an aggregate minimum custodial term of 130 years. He appealed and the Appellate Division affirmed. The Supreme Court granted defendant's petition for certification.

HELD: Defendant was entitled to face a single adversary, the State. He should not have had to bear the consequences of a judge who appeared to disbelieve him and his expert witness, revealed that disbelief to the jury, and supported a witness adverse to him. Because that conduct was clearly capable of producing an unjust result, a new trial is in order. However, the trial judge's refusal to provide the jury with written instructions did not constitute plain error and therefore does not warrant reversal.

1. N.J.R.E. 614 explicitly grants judges the right to question witnesses "in accordance with law and subject to the right of a party to make timely objection." In addition, the Supreme Court has held that trial judges possess broad discretion to intervene in a criminal trial where necessary. Indeed, it is proper, and even encouraged, for a trial judge to step in when a party's basic rights are being threatened, when expedition is necessary to prevent a waste of judicial time/resources, when testimony requires clarification, or when a witness appears to be in distress or is having trouble articulating his/her testimony. However, that right is limited -- particularly in the context of a jury trial, where the judge is not the factfinder -- to ensure that a court does not telegraph to the jury any partiality to a given party's side. More recently, in State v. Taffaro, 195 N.J. 442 (2008), the Court reiterated the importance of limiting judicial questioning during a jury trial to protect the defendant's right to fair and balanced proceedings. Applying those same principles to the evidence in this record, and reviewing the matter under the plain error standard, Rule 2:10-2, the Court concludes that the judge's questioning of defendant, his expert, and Investigator Mitchell falls squarely within the interdiction of Taffaro, notwithstanding the judge's admonitions to the jury. The judge's rapid-fire questioning of defendant hammered home the prosecutor's view of defendant's memory as selective, leaving the impression that he did not believe defendant's claim. The judge's questions of defendant's medical expert were equally damaging to the overall fairness of the trial, casting a cloud over defendant's trial testimony. Those questions, which would have been entirely appropriate if propounded by the prosecutor, should not have come from the judge. Likewise, the judge's questions directed at Investigator Mitchell should have been left to the prosecutor. Instead, the judge effectively hammered nails into defense counsel's ongoing cross-examination and bolstered the State's witness. The judge's questioning of defendant, his expert witness, and Investigator Mitchell was gratuitous and evidenced incredulity with respect to defendant's diminished capacity defense, along with support for the State's witness. Defendant was entitled to face a single adversary, the State. He should not have had to bear the consequences of a judge who appeared to disbelieve him and his expert witness, revealed that disbelief to the jury, and supported a witness adverse to him. Because that conduct was clearly capable of producing an unjust result, a new trial is in order. (Pp. 20-29)

2. Because defendant did not object to the trial judge's refusal to provide the jury with written instructions, the plain error standard again is applicable, R. 2:10-2. That standard was not met by the judge's refusal to share written instructions with the jury and does not warrant the Court's intervention. However, Rule 1:8-8(a) provides for a judge to send a written charge to the jury if he chooses to do so should it be helpful to the jury. A judge should make an individualized decision regarding the submission of written instructions to the jury on the basis of what is before him and not on any preconceived policy rationale. Because the rule is silent regarding the kinds of considerations that should inform such a determination, the Court refers the matter to the Civil and Criminal Practice Committees for consideration of a more detailed standard to guide judges in exercising their discretion. (Pp. 29-32)

The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the trial court for the vacation of the judgment of conviction and a new trial.

JUSTICE RIVERA-SOTO filed a separate opinion, CONCURRING IN PART and DISSENTING IN PART, stating that while he agrees with the majority's conclusion that the trial court's refusal to provide its written instructions to the jury did not constitute plain error, he dissents to the extent the majority is of the view that the questioning of defendant and other witnesses by the trial judge exceeded the limits recently reiterated in State v. Taffaro.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, WALLACE, and HOENS join in JUSTICE LONG's opinion. JUSTICE RIVERA-SOTO filed a separate opinion, concurring in part and dissenting in part.

The opinion of the court was delivered by: Justice Long

Argued September 15, 2009

Recently, in State v. Taffaro, 195 N.J. 442, 451 (2008), we reaffirmed the well-established principle that, in presiding over a jury trial, the judge, who holds a powerful symbolic position vis-à-vis jurors, must maintain a mien of impartiality and must refrain from any action that would suggest that he favors one side over the other, or has a view regarding the credibility of a party or a witness.

It is against that backdrop that we review this case in which the Appellate Division affirmed defendant's conviction for the first-degree murder of his parents. At trial, defendant did not contest the fact he killed his parents; his sole defense was diminished capacity, which was to be proved through his testimony about his drug consumption and depression, and that of his expert psychiatrist. During the trial, the trial judge injected himself into the case by questioning witnesses, including defendant and his expert. Because that questioning made it seem as though the judge did not credit the proffered defense, it denied defendant a fair trial.

I.

On June 29, 2004, defendant Peter O'Brien was indicted by an Ocean County Grand Jury and charged with two counts of murder in the first degree, N.J.S.A. 2C:11-3a(1), two counts of second- degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a, third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b, and third-degree theft by unlawful taking, N.J.S.A. 2C:20-3.

A trial ensued at which many of the facts were uncontroverted. Included were the following: defendant stole approximately $40,000 from his parents*fn1 while they were away in Florida. On May 7, 2004, defendant picked up his parents at Newark Airport on their return from Florida and drove them to their home in Toms River. After assisting them with their luggage, defendant went into his bedroom, retrieved a loaded handgun that he had taken from Mr. Napoleon's filing cabinet and a pillow, proceeded into Mr. Napoleon's office and shot him from behind several times at close range. Defendant's mother was in the bathroom when she heard the shots. When she walked out of the bathroom to see what was happening, defendant shot her twice at close range.

Defendant put the gun and pillow into his car and went back into the house where he saw Mr. Napoleon on the floor with a cordless telephone in his hand. Defendant took the telephone and placed it back on the receiver. Mr. Napoleon looked at defendant and said "I love you." Defendant responded "I love you too" and then left the house. Mr. Napoleon managed to find another telephone and called 9-1-1, reported the shootings and implicated defendant as the shooter. When police arrived on the scene, Ms. O'Brien was found dead in the house and Mr. Napoleon was found alive, outside of the house, near the curb. Mr. Napoleon was taken to the hospital, where he was pronounced dead.

When defendant left the family home he went to a local shopping plaza where he put the gun, pillow, and the shirt he had been wearing into a dumpster. After disposing of the evidence, defendant met friends and went to McDonald's, where he was initially contacted on his cell phone by police.

Subsequently, defendant and a female friend went to the Dover Township Police Headquarters where they were met by Detective Thievon of the Dover police force. Detective Thievon escorted defendant and his friend into an interview room and collected basic information from each of them. Detective Thievon left when Detective Bajada of the Dover Township Police Department and Investigator Mitchell of the Ocean County Prosecutor's Office arrived to conduct a formal interview. Defendant appeared upset when the detective and investigator arrived at the interview room. Prior to beginning the interview, defendant was advised of his Miranda*fn2 rights, which he waived. Investigator Mitchell told defendant that the police were in possession of a 9-1-1 tape on which Mr. Napoleon implicated him in the homicides. Defendant was silent for approximately thirty seconds then said "I did it." He later made a full confession that was introduced at trial and was the source of many of the aforecited facts.

At trial, defendant advanced a diminished capacity defense based on his drug intoxication and depression. In support of that defense, defendant testified about his long-term drug use and depressed mental state. He did not contest that he killed his parents, but testified that he could not remember shooting them or making a confession. He also presented an expert witness, Dr. John Verdon, a psychiatrist concentrating in addiction medicine, who opined that defendant's drug intoxication and depression impacted on his ability to act knowingly or purposefully.

It was in connection with that defense that the judge engaged in direct questioning of defendant and his expert witness. At the close of defendant's lengthy testimony, the judge questioned him regarding his lack of memory about the incidents surrounding the shooting --- a matter which already had been explored extensively and repeatedly during direct, cross, and redirect examination of the witness:

THE COURT: I have a question just for clarity. Is it your testimony here that you remember taking the phone and hanging it up?

WITNESS: I just remember hanging it up. I don't remember taking the phone.

THE COURT: And you remember Mr. Napoleon saying words to you?

WITNESS: Yes.

THE COURT: And you remember saying words back to him?

WITNESS: Yes.

THE COURT: And you remember that today?

WITNESS: Yes.

THE COURT: And you remembered that when you spoke to the police?

WITNESS: I don't know.

THE COURT: Okay. But everything else from the time you went into the house and took the luggage in, until you were in the police station, you don't remember?

WITNESS: Correct.

THE COURT: But you remember taking the phone?

WITNESS: I remember hanging the phone up.

THE COURT: And you remember Mr. Napoleon saying those words ["I love you"] to you?

WITNESS: Yes.

THE COURT: And you saying those words to him?

WITNESS: Yes.

[(Emphasis added).]

At that point, the judge reminded the jury that it was "not to glean anything from my question or give any more weight to my questions."*fn3

The judge also interjected himself into the proceeding during the direct examination of Dr. Verdon. Dr. Verdon testified that defendant had a marijuana addiction, and that he also abused other mood-altering substances, such as cocaine, prescription painkillers, and alcohol. According to Dr. Verdon, defendant's drug use caused him to experience depression and "profound memory loss." The judge then lasered in on Dr. Verdon's testimony in connection with defendant's claim at trial that he had some memory of the encounter with his father:

THE COURT: Excuse me.

WITNESS: Sure.

THE COURT: Did you just say that when he spoke to you, Mr. O'Brien spoke to you during your interview, that he had no memory of the encounter with Mr. Napoleon, and what Mr. Napoleon said to him and he said to Mr. Napoleon?

WITNESS: He knew it was in the record, but as far as his -- it's all vague at that point, your Honor.

THE COURT: I understand. I understand he knew it was in the record by this point in time.

WITNESS: Right.

THE COURT: My question is did he tell you that absent what was in the record, he had no recollection and did not remember that?

WITNESS: He didn't say it specifically. It was all a blur to him, it was all vague, and it felt unreal, so I didn't ask the specific question to him, [w]hat do you actually recall of that part of it? I didn't ask him that, your Honor, so I can't answer that.

THE COURT: Did you glean from your interview with him that when he was speaking about that part of it, that he was doing it from his memory? Did he say, I remember this part?

WITNESS: No, no. It wasn't from his current memory then, because when I met with him a year later, he had very little direct recall. But he could recall with me, because I went over the statement with him, and he said, "No, I was not" -- in talking to me, he said, "I was not in the office. I was in the hallway." And he was in the office, so that --

THE COURT: We're talking about the time when he hung up the phone.

WITNESS: Yeah, I know that. I'm saying that part he -- I don't have detail about him specifically recalling. That was all after the event.

THE COURT: Would you have noted in your notes if he told you that he had a specific recall, a present recall, at the time you interviewed him, of that encounter when he hung the phone up?

WITNESS: Yes, indeed, your Honor.

THE COURT: You would have put that down?

WITNESS: Yes, yes.

THE COURT: And you didn't put that down?

WITNESS: No, I didn't.

THE COURT: I'm sorry for interrupting, but --

WITNESS: Thank you, your Honor.

THE COURT: -- I thought that needed to be clarified.

WITNESS: Thank you.

[(Emphasis added).]

The judge interrupted Dr. Verdon's testimony a second time when he challenged Dr. Verdon concerning his statements about how long a person can remain under the influence of marijuana and what kinds of physical effects would be palpable hours later:

THE COURT: Before redirect, I have a question. Earlier, when [the prosecutor] was asking you questions, you were talking about at the time he was reviewing the ...


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