On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 04-06-0713.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher, Sapp-Peterson and Espinosa.
Charged with murdering his girlfriend, Melissa DeBellis, defendant was convicted after a lengthy trial of second-degree aggravated assault, serious bodily injury. In this appeal, we consider, among other things, (1) whether the trial judge erred in permitting a medical expert, retained by defendant for the purposes of testifying at a bail hearing, to testify at the guilt phase over defendant's objection; (2) whether the trial judge erred in failing to define "protracted" in explaining the meaning of aggravated assault, serious bodily injury, when the jury inquired during deliberations; and (3) whether the trial judge correctly applied the emergency aid exception to excuse a warrantless entry into defendant's home. We affirm.
Defendant was indicted for the knowing and purposeful murder of DeBellis, N.J.S.A. 2C:11-3(a)(1) and N.J.S.A. 2C:11-3(a)(2). Early in the proceedings, the trial judge conducted a "hearing on the special condition of bail relating to defendant's psychiatric condition." Dr. Kenneth J. Weiss testified on defendant's behalf that he found no evidence of mental disorder or any psychiatric evidence that defendant would be a danger to himself or others if released on bail. The judge accepted that conclusion and released defendant on bail with conditions not relevant here.
Defendant's first trial ended in a mistrial. Thereafter, defendant unsuccessfully moved for dismissal based on double jeopardy principles. The trial judge also denied defendant's suppression motion, finding that the emergency care exception excused a warrantless entry into his home. During another pretrial hearing, the judge ruled, among other things, that defendant's statements to Dr. Weiss would be admissible at trial by finding that defendant waived any applicable privilege.
A lengthy trial took place during October and November 2007. At its conclusion, the jury acquitted defendant of murder, aggravated manslaughter, and reckless manslaughter, but found him guilty of second-degree aggravated assault, serious bodily injury, N.J.S.A. 2C:12-1(b)(1). After an unsuccessful motion for a new trial, defendant was sentenced to a seven-year prison term, subject to an eighty-five percent period of parole ineligibility and a three-year term of parole supervision.
Defendant appealed, raising the following arguments for our consideration:
I. THE TRIAL COURT ERRED BY PERMITTING DR. WEISS TO RELAY DEFENDANT'S STATEMENTS TO THE JURY.
II. THE TRIAL COURT ERRED AND VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHTS BY PERMITTING A STATE EXPERT WITNESSES [sic] TO RELAY HEARSAY TESTIMONY TO THE JURY.
III. THE TRIAL COURT'S AGGRAVATED ASSAULT CHARGE TO THE JURY WAS IMPROPER AND PREJUDICIAL (PARTIALLY RAISED BELOW).
IV. THE TRIAL COURT ERRED IN RULING THE POLICE ENTRY INTO DEFENDANT'S HOME LAWFUL UNDER THE EMERGENCY AID EXCEPTION TO THE WARRANT REQUIREMENT AND REFUSING TO SUPPRESS EVIDENCE THAT POLICE OBTAINED AS A RESULT.
V. THE PROSECUTOR'S COMMENTS DURING OPENING AND CLOSING ARGUMENT, AND TESTIMONY VOLUNTEERED BY A STATE WITNESS DURING TRIAL, CUMULATIVELY DENIED DEFENDANT A FAIR TRIAL (PARTIALLY RAISED BELOW).
VI. DEFENDANT'S SENTENCE IS IMPROPER AND EXCESSIVE.
We find insufficient merit in the arguments contained in Points II, V and VI, to warrant discussion in a written opinion. R. 2:11-3(e)(2). For the reasons set forth hereafter, we find that the other arguments posed by defendant do not provide sufficient reasons to reverse the conviction or sentence imposed.
The jury heard considerable evidence regarding (a) the circumstances surrounding DeBellis's death, as well as (b) the cause of her death.
DeBellis and defendant had been dating for about a year. Dennis Fabritiis, who rented the upstairs part of defendant's house for $550 per month and acknowledged that he and defendant were "good friends," saw DeBellis in the kitchen of defendant's house at around 2:30 p.m. on the afternoon of Saturday, April 24, 2004. He mentioned his surprise at seeing her there because a week earlier defendant said they had broken up. Defendant indicated that the break-up resulted because DeBellis wanted to "have herself tied up in a sexual way and he didn't agree with that." Fabritiis testified that, on April 24, DeBellis and defendant were interacting "[v]ery well."
Later that afternoon, defendant and DeBellis socialized with their neighbors, Frank Rahn and his wife, in Rahn's backyard. Joe Lusko and Fabritiis arrived later. The group drank from around 5:00 p.m. until approximately midnight. Rahn testified DeBellis seemed "[j]ovial, very happy" that night and he did not see any bruises on her.*fn1 DeBellis had "maybe" two drinks an hour but Rahn did not see her take any pills; Rahn said DeBellis was "feeling no pain" and was unsteady on her feet.
Rahn testified that, during that evening, DeBellis joked about wanting defendant to "tie her up" and defendant laughed but said he was "not into that." DeBellis responded "well, I'm going to tie you up and make you my bitch," and everyone laughed, including defendant. Defendant left the party first and, about forty-five minutes after that, DeBellis and Fabritiis left together.
Rahn thought the relationship between defendant and DeBellis was "fine" at the time of the party and he described them as "really happy," although he had heard they had an argument two weeks earlier. Defendant and DeBellis sat next to each other, held hands and embraced during the evening.
Fabritiis arrived at Rahn's party around 10:45 or 11:00 p.m. that night. He described the mood as "jovial" and testified defendant and DeBellis were getting along and appeared to be "in a loving relationship." After the party, Fabritiis, defendant and DeBellis talked for about fifteen minutes in the kitchen about what they were going to have for dinner the next night. Defendant and DeBellis seemed "fine" when Fabritiis left the kitchen to go to sleep. Fabritiis agreed that DeBellis was drunk that night; in fact, he testified he assisted her walking back to the house.
Rahn testified there was loud music coming from defendant's house the entire night of Sunday, April 25, 2004. Fabritiis woke up around 1:00 p.m. on Sunday and heard a loud radio playing, which was unusual; he testified the radio remained on until around 5:30 or 6:00 p.m. that evening. Fabritiis never went down to defendant's kitchen for dinner that evening because their door was shut; he also did not try to call.
Around 8:30 a.m., on Monday, April 26, 2004, Rahn's son went to defendant's home for the purpose of helping defendant with "a project." Receiving no response to his knocks, Rahn's son went to his father's house and said it "doesn't look like we're going to work today."
DeBellis did not arrive at work Monday morning. According to her supervisor, she had never done that in nine years. Debellis's sister, Denise King, and King's niece, Sherry Winkler, went to defendant's house at 9:15 a.m. and saw DeBellis's car in the driveway. They knocked on the front and back doors but received no response. Their calls to DeBellis's cell phone and their yells from outside defendant's house also produced no response. King and Winkler went to Rahn's house to inquire about DeBellis; Rahn and his wife said they had not seen DeBellis since midnight on Saturday. The Rahns also tried to get defendant to open the door without success. When Rahn opened a kitchen window and yelled through the screen that King and Winkler were worried about DeBellis, defendant responded "I'm all right. We're all right." Rahn thought defendant sounded hung over and wasn't speaking as clearly as normal. There was also no response to their subsequent request to see DeBellis, and the group waited outside about ten more minutes. Rahn urged King not to go to the police because he "thought they were hung over" and said to "give them a couple hours." After approximately thirty minutes, King left, went to DeBellis's house and called DeBellis's cell phone again. After about another half hour, King went to the police station.
At 10:45 a.m., King spoke to Detective Joseph Gillan about her concerns for DeBellis. Gillan went to defendant's house, knocked on the doors, and called the land line and cell phone numbers provided by Rahn. Receiving no response, Gillan returned to the police station to advise Sergeant Dugan.
Patrolman Nicholas A. Giannini was dispatched with Sergeant Dugan to defendant's house to "check on the well-being of Melissa DeBellis." They knocked on the front door and shouted "police" but received no response. Following a lack of response to knocks on the back door, Rahn came over and said "he's in there." Giannini decided to enter the house and used the open kitchen window to reach in and unlock the back door.
He found the kitchen in disarray with scattered pills, an open Bayer aspirin bottle, discarded papers, a broken chair and a rag or t-shirt, on the kitchen floor, with what appeared to be blood on it. Giannini saw defendant walking up the hallway towards them and, when defendant saw them, he turned around and started walking back down the hallway; defendant turned back when the police announced themselves. Defendant was wearing no shirt and appeared to have dried blood on his head and the front of his pants.
When Giannini asked defendant where DeBellis was, defendant said she went to work. Defendant kept trying to walk into a bedroom and, when Giannini looked into that room, he saw blood on the wall and floor. Giannini took defendant by the arm and walked him to the living room to talk. When asked what happened, defendant said he had a fight with his girlfriend and she "hit him in the head with a chair."
In the bedroom, DeBellis was found lying on her stomach on the left side of the bed with blood on the back of her shirt and her hair covering her face. She had no pulse.
Defendant was arrested. Patrolman Bernard Grahl testified that while walking defendant to the police car, he asked defendant about the blood on his head. Defendant said "the bitch hit me with a chair."
Grahl testified that although defendant was able to provide personal information at the police station, he did not ask about DeBellis. After approximately ninety minutes, defendant was taken to the hospital because he complained of pain in his collarbone. Gillan testified that defendant told the nurse that his girlfriend hit him on the head ...