On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Indictment No. 05-04-0158.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 15, 2009
Before Judges Wefing, Messano and LeWinn.
Defendant George Hladun appeals from the judgment of conviction and sentence imposed following a jury trial at which he was found guilty of the strict liability drug-induced death of Gary L. Debele, N.J.S.A. 2C:35-9, a first-degree crime, and third-degree distribution of heroin, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3). After appropriately merging the two offenses, the judge sentenced defendant to fifteen years in prison, with an 85% period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant raises the following points on appeal:
THE CUMULATIVE EFFECT OF THE COURT'S EVIDENTIARY RULINGS AGAINST DEFENDANT DEPRIVED HIM OF A FAIR OPPORTUNITY TO PRESENT A DEFENSE AND THUS, HIS RIGHT TO DUE PROCESS AND A FAIR TRIAL. U.S. CONST., AMENDS. V, VI, AND XIV; N.J. CONST. (1947), ART. 1, PARS. 1, 9, AND 10.
A. THE COURT ERRED WHEN IT RULED INADMISSIBLE EVIDENCE THAT DECEDENT EXPERIENCED A NON-FATAL HEROIN OVERDOSE THREE MONTHS BEFORE HIS FATAL OVERDOSE.
B. THE COURT ERRED WHEN IT RULED INADMISSIBLE EVIDENCE THAT DECEDENT WAS KNOWN TO SELL COCAINE TO SUPPORT HIS HEROIN ADDICTION.
C. THE COURT ERRED WHEN IT RULED INADMISSIBLE EVIDENCE THAT PROVIDED CONTEXT TO DECEDENT'S 4:00 A[.]M[.] VISIT TO DEFENDANT'S HOME, SEEKING COMPANY ON A DRUG PURCHASING EXCURSION.
THE COURT ERRED IN ALLOWING LAY WITNESS TESTIMONY ON THE CAUSE OF DECEDENT'S INTOXICATION, DEPRIVING DEFENDANT OF HIS RIGHT TO DUE PROCESS AND A FAIR TRIAL. U.S. CONST., AMENDS. V, VI, AND XIV; N.J. CONST. (1947), ART. 1, PARS. 1, 9, AND 10.
THE TRIAL COURT IMPOSED AN EXCESSIVE SENTENCE, NECESSITATING REDUCTION.
Defendant also raises the following points in his pro se supplemental brief:
APPELLA[NT] WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL CONTRARY TO THE UNITED STATES SIXTH AMENDMENT TO THE CONSTITUTION AND THE NEW JERSEY STATE CONSTITUTION, ARTICLE I, PARAGRAPH 10
A. DEFENSE COUNSEL[']S FAILURE TO PROPERLY INVESTIGATE PRE[-]TRIAL
B. DEFENSE COUNSEL[']S FAILURE TO ADEQUATELY CROSS-EXAMINE AND CHALLENGE THE STATE[']S MEDICAL EXPERT[']S QUALIFICATIONS
C. DEFENSE COUNSEL[']S FAILURE TO OBJECT TO THE STATE[']S EXPERT WITNESS TESTIMONY ON THE BASIS THAT SAID TESTIMONY LACKED FOUNDATION IN THE MEDICAL FIELD AND THAT SAID TESTIMONY WAS AN EMBROIDERY OF THE REPORT
D. DEFENSE COUNSEL FAILED TO ADEQUATELY CROSS-EXAMINE THE STATE[']S EXPERT WITNESSES['S] TESTIMONY, THUS INFRINGING UPON DEFENDANT[']S SIXTH AMENDMENT RIGHTS
E. FAILURE OF DEFENSE COUNSEL TO MARK THE EXPERT WITNESSES['S] MEDICAL REPORTS INTO EVIDENCE SO [THE] JURY MAY REVIEW DISCREPANCIES IN THE STATE[']S EXPERT WITNESS TESTIMONY
TRIAL COURT ABUSED IT[S] DISCRETION IN RULING INADMISSIBLE DEFENSE EVIDENCE SHOWING THAT THE DECEDENT HAD ABNORMAL EKG CARDIAC READINGS OF HIS HEART AFTER THE STATE OPENED THE DOOR DURING OPENING STATEMENTS AND DIRECT EXAMINATION; THUS, INFRINGING UPON DEFENDANT'S SIXTH AMENDMENT RIGHTS TO PRESENT A COMPLETE DEFENSE
DEFENDANT[']S RIGHT TO A FAIR TRIAL WAS INFRINGED UPON DUE TO PROSECUTORIAL MISCONDUCT
A. SPURIOUS ALLEGATIONS BASED ON FACTS OUTSIDE AND UNSUPPORTED BY EVIDENCE ADDUCED AT TRIAL
B. INFRINGEMENT OF DEFENDANT[']S RIGHT TO NOT TESTIFY DURING TRIAL
C. P[E]RJURIOUS TESTIMONY
THE APPELLANT'S DUE PROCESS RIGHTS ARE HEREBY PREJUDICED BECAUSE OF THE LACK OF A COMPLETE RECORD, WHICH, UNDER THE CIRCUMSTANCES, RENDERS COMPETENT REVIEW IMPRACTICAL We have considered these arguments in light of the record and applicable legal standards. We affirm.
During the early morning hours of May 31, 2003, Gary L. Debele died of a heroin overdose while asleep on the couch in his home. Debele had attempted to overcome his addiction to the drug during the preceding years, including the successful completion of an in-patient drug treatment program in the summer of 2002. During the weeks prior to his death, he was no longer employed, but, according to his wife Cynthia, he regularly attended meetings in an attempt to maintain sobriety.
Debele was discovered in a lifeless condition at approximately 5:30 a.m. by his step-daughter, Cheryl Machyousky,*fn1 who lived with Debele, her mother Cynthia, and her half-brother, Gary Debele, Jr. Machyousky awakened the family and summoned her aunt who was a nurse, before Gary Jr. called 911. Emergency medical personnel were unable to revive Debele, and he was pronounced dead at the scene.
The preceding evening, near 9:00 p.m., Debele asked Machyousky to drive him to K-Mart to purchase supplies for the garden they were planting. While Machyousky was driving to K-Mart, Debele asked her to stop at defendant's house, claiming that defendant owed him money. After defendant came to the front door, Debele went around the side of the house with him, and, after a few minutes, both returned to the car. Defendant continued a conversation with Debele about borrowing a roto- tiller from him. As they left defendant's home, Debele told Machyousky that he did not need to go to K-Mart that evening, and so they drove home.
Machyousky knew the symptoms of heroin intoxication having lived for several years with a man that was addicted to the drug. Although Debele exhibited no such signs when he left for K-Mart, he did on the ride home from defendant's house. When Machyousky reached home, Debele went into the bathroom where Machyousky assumed he was ingesting more drugs. Police who responded to the home the next morning ...