May 21, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MICHAEL RICHARD COTE, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 14, 2010
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 with a chair. A CAT scan revealed that defendant had a bullet lodged in his brain.*fn2
Detective William McDowell was dispatched to the hospital to photograph defendant. He also videotaped defendant's house and photographed the autopsy. McDowell collected physical evidence from defendant's hands but testing of swabs was deemed unnecessary. When cross-examined about the failure to test the evidence, McDowell twice volunteered, "[j]ust remember, counsel, anybody can have them submitted," in an improper attempt to suggest to the jury that defendant should have come forth with his own expert testimony as to the significance of this evidence.
Detective Michael Wiltsey, who specializes in crime scene investigations, examined a .22 caliber revolver found at the crime scene but was unable to recover fingerprints. The weapon was found beneath DeBellis's body but not near her hand. Wiltsey explained that no forensic work was done in terms of gunshot residue on either defendant or DeBellis because of the time delay since the weapon was fired and the unreliability of such an analysis in general. Wiltsey also thought that having the headboard analyzed for gunshot residue would not produce anything "relevant." There was no evidence DeBellis was shot with the weapon.
Wiltsey also testified about the evidence collected that tested positive for blood, namely the t-shirt found on the kitchen floor, a t-shirt found at the bottom of the stairs, swabs from the bedroom wall, a pillow case from the bedroom, a strand of hair found on the gun, and the headboard in the bedroom. The blood stains on the wall, the pillow case and headboard were identified as defendant's. The blood stain on the t-shirt from the kitchen floor was identified as having a mixture that matched defendant but testing could not determine whether DeBellis was a contributor to that mixture.
On cross-examination, Wiltsey admitted that none of DeBellis's clothing was analyzed, explaining consideration was given to those items that would yield the most relevant information. He also stated that the police made no effort to reconstruct where defendant and DeBellis were at the time of the shooting because they "didn't think it was relevant." Wiltsey agreed defendant could have transferred blood to DeBellis by leaning over her after he got shot but he did not agree with the hypothetical about DeBellis taking a lethal overdose of drugs and dying next to defendant.
Wiltsey identified empty prescription bottles for tramadol found in DeBellis's purse and a bottle of hydrocodone found in the spare bedroom; the former was prescribed to DeBellis and the latter prescribed to defendant. DeBellis's purse with the empty tramadol bottle was found on the bed behind DeBellis's head. The empty tramadol bottle was dated April 20, 2004, and originally contained thirty pills. There was "an article about drug problems" found in DeBellis's purse.
Dr. Ronald Ayres, DeBellis's gynecologist, testified that he had first prescribed tramadol for DeBellis on November 12, 2003, and that she was given refills of that prescription on December 30, 2003, February 17, 2004, and April 20, 2004. The proper dosage was one fifty milligram pill every eight hours. The latest prescription was written for twenty pills but the bottle indicated thirty pills were dispensed.
Michael Sperry, an investigator with the prosecutor's Office, found on a dresser in the master bedroom of defendant's house handwritten letters or notes, which he read into the record. Several were love letters written to DeBellis, wherein defendant expressed sadness that their relationship was over and questioning why DeBellis was "afraid of being loved." Other writings appeared to be journal or diary-like entries that described: the beginning of the relationship with DeBellis, who was seeing a friend of defendant's when they met; how defendant felt when they got together; fights about the old boyfriend; how defendant did not want to lose her "for something stupid like that"; and how much he loved DeBellis. Other writings described their sexual escapades, how DeBellis "wanted to get tied up," and how defendant would not respect her after doing that. One letter stated that defendant was glad he figured out what "she was really like," and that maybe he should make up with her and "treat her like the whore she wants to be," but he loved her too much to do that. The last writing, dated April 5, 2004, stated that defendant could not "believe the things that's coming out of my girl's mouth tonight."
The jury also heard considerable conflicting evidence regarding the cause of death.
The State called Lucy Rorke-Adams, a board certified forensic neuropathologist from Children's Hospital of Philadelphia, to testify as an expert in the fields of forensic neuropathology and general pathology. Dr. Shah from the Burlington County Medical Examiner's office had consulted with her on the autopsy of DeBellis. Shah had examined the decedent's brain and "could not find any reason for the decedent to have died." Rorke-Adams met with Shah and reviewed the autopsy report, photographs of the autopsy and crime scene, police reports, toxicology reports and all Shah's other information, the type of information Rorke-Adams said she would "ordinarily rely upon" in seeking the cause of death.
Shah had listed the cause of death as "a blunt head injury" but Rorke-Adam opined that
[t]he cause of death was a combination of finding blunt head injury and asphyxia as a consequence of the position in which she was before she died. That is, she did not get an adequate amount of oxygen to her body because her excess oxygen was cut off because of her position in the bed. And the manner of death was homicide because she had been subjected and received the trauma from another individual.
Based on livor mortis of the body, or the color of the skin after death, Rorke-Adams concluded that DeBellis died while lying on her stomach with her face down on the bed where she was found. Rorke-Adams also found "some wounds" around the mouth or "[m]ultiple small areas of hemorrhage" and "some blood coming from her mouth." The injuries around the mouth looked "like some kind of traumatic injury" and Rorke-Adams agreed the marks could be "consistent with someone's fingernails." Other injuries to the mouth were consistent with a "traumatic blow to the face, to the mouth." The "multiple areas of hemorrhage beneath the skin in [the] left side of the neck" were consistent with "some kind of traumatic injury" or "some kind of soft tissue injury from some other soft object" like hands. The bruise around the right eye could have been the result of a "punch or pressure or force against her eye." Bruises on the inner part of DeBellis's right arm were not consistent with a fall but looked to Rorke-Adams more like "blunt trauma." She concluded that photographs from the internal examination of the bruises confirmed that the injuries were the result of blunt force trauma.
Rorke-Adams testified that an examination of the skull revealed multiple periosteal hemorrhages reflective of "multiple blows" that were sufficiently severe enough to produce "a considerable amount of bleeding" and a blood clot. The brain was "very swollen" "as a consequence of a combination of head trauma from the blows that [DeBellis] received to her head and the asphyxia which she experienced that caused her death." There were no contusions or lacerations of the brain but there were signs of severe oxygen deprivation. As a result, Rorke-Adams concluded that DeBellis suffered head trauma and "the pattern of injury is characteristic of inflicted injury by another." She also testified DeBellis would have lost consciousness from the multiple blows.
Rorke-Adams opined DeBellis would not have died from the injuries except for the "secondary problem" of the "lack of oxygen to the brain because of the position of her body at the time she was found and the color of the brain." She also concluded that "[c]ontributing to her inability to [roll over onto her back] may have been diminution of consciousness consequent to drug and alcohol effects." In sum, within a reasonable degree of medical certainty, Rorke-Adams opined that
[t]he pattern of the blunt trauma to her body, the multiplicity and the location of the wounds in her body, the multiple wounds to the head of sufficient severity to produce the hemorrhages in the soft tissue and to produce at least some of the brain swelling, all combined, and then the position of the body combined, to give one the facts that are needed to draw the conclusion that this was a homicide.
The fact that drugs and alcohol were in DeBellis's system did not dissuade Rorke-Adams from this conclusion; in her view, those circumstances would just have "added to the confusion and the perpetuation of her state of unconsciousness from the head injury."
On cross-examination, Rorke-Adams admitted she could not tell "what component" the drugs played in DeBellis's death because of her other injuries and because Rorke-Adams was not a toxicologist. She admitted Shah came to her because she was "confused" about what caused DeBellis's death but Rorke-Adams also "took" Shah's opinion that the drugs were not "an important part of the cause and manner of death." Rorke-Adams acknowledged she did not know what tramadol, one of the drugs found in DeBellis's system, was and did not know what effect that drug could have on a person or whether it is capable of making someone pass out. She agreed the brain can swell when a person dies of a drug overdose, depending on the drug.
Rorke-Adams also agreed, on cross-examination, that DeBellis died "solely as a result of asphyxia" and not because of the head injury, which was not life-threatening; the head injury, she stated, caused the unconsciousness. That is, according to Rorke-Adams, DeBellis died because she was unable to turn her head to breathe because of the drugs in her system and because she was unconscious from the head injury. But Rorke-Adams maintained that DeBellis would have died from asphyxia regardless of whether she had drugs in her system.
When presented with photographs showing DeBellis partially on her left side and not face down, Rorke-Adams admitted that she relied on the medical investigator's descriptions and that her theory would be inaccurate if those descriptions were inaccurate. However, Rorke-Adams opined that livor mortis indicated DeBellis died with her face down on the mattress. She also conceded no pathological findings could reveal that DeBellis was unconscious but she based her finding on her education and training of what happens in cases of severe head trauma. Rorke-Adams would not concede the markings around the mouth could be bug bites, and she would also not concede some of DeBellis's bruises could have occurred post-mortem. She agreed that persons undergoing premenstrual syndrome and those who have taken aspirin are more prone to bruising, but she was not aware those under the influence of drugs are more prone to bruising. Rorke-Adams acknowledged a few mistakes made by Shah during the autopsy, and made by herself in her report, such as mistaking a hemangioma for a bruise, but she maintained those mistakes did not affect her ability to render an opinion on the cause of death. She also acknowledged mistakes could be made during the autopsy that "may produce artifactual hemorrhage looking like a bruise."
Dr. Richard Cohn testified for the State as an expert witness in the fields of forensic toxicology and pharmacology. He opined the drugs and alcohol in DeBellis's system were not the "sole cause of death" but they did "play a role" by "aggravating" the "anatomical causes that were contributing to her death." That is, Cohn opined that because of the presence of the drugs DeBellis "would be unable to defend herself in the manner that she would in the absence of the drugs."
Cohn testified that the most significant toxicological findings are "[t]he .126 percent blood alcohol concentration, the presence of hydrocodone at a concentration of 0.10 milligrams per liter of blood, the tramadol at a concentration of 6.3 milligrams per liter and the acetaminophen at a concentration of 39.8 milligrams per liter." He described tramadol as a "weak narcotic." He also disagreed with defendant's expert, Dr. Richard Stripp, who had reported DeBellis took approximately twenty tramadol and four to six hydrocodone; Cohn found Stripp's calculations were "based on taking a single dose scenario" rather than looking at DeBellis as a "chronic user" of tramadol as suggested by her prescription history. According to Cohn, Stripp failed to account for the "steady straight level" present when a person is taking the drug for some time. Cohn opined DeBellis did take more than the commonly prescribed amount of tramadol, "but not necessarily enough that would in fact be consistent or lead to a cause of death."
Cohn also noted that the "concentration of the tramadol in the stomach contents was very low," which is "inconsistent with having an intentional overdosing"; he had not included this analysis in his report and claimed he was only responding to Stripp's views. There was a similar absence of hydrocodone in the stomach contents and Cohn opined DeBellis took only a "therapeutic amount" of that drug.
According to Cohn, although a first time user of these drugs would suffer a "pronounced central nervous system depression," a "chronic user . . . who was accommodated or tolerant to alcohol to some degree to the hydrocodone and to the tramadol" would present "a range of effects" and would suffer "some deficits." Cohn opined that if a person already had physiological deficits, such as problematic breathing resulting from injuries sustained prior to death, the drugs in her system would "make death more probable than not." Cohn also opined DeBellis could have been revived or saved if there had been a timely medical intervention.
Cohn testified "brain swelling" is not a "typical anatomical finding in a narcotic or central nervous system depressant death." In sum, Cohn opined the drugs and alcohol in DeBellis's system "played an aggravating role to the anatomical injuries, to the blunt force injuries that were observed on the autopsy," but they were not "an independent cause of death" because of the presence of other explanations for the death. On cross-examination, Cohn stated that "the mechanism of death," with respect to a drug overdose, was "[l]ack of oxygenation," but he would not concede the brain would swell as in this case.
Cohn's opinion assumed that the facts in the police report about DeBellis being found lying face down were correct, that facts in the autopsy report were correct, and that Rorke-Adams's report was correct. He acknowledged that he did not know that Shah wrote her report without having the toxicology results or that Rorke-Adams did not know what tramadol was. Cohn did not agree 6.3 milligrams per liter of tramadol was a "fatal dose of drugs."
Dr. Richard Stripp, a professor of forensic pharmacology and toxicology, testified for the defense as an expert witness in the field of forensic toxicology. Stripp reviewed the medical examiner's toxicology report, the autopsy report and the testimony of Rorke-Adams. He explained that DeBellis had a blood alcohol level of 0.126 percent, a concentration of .101 milligrams per liter of the narcotic analgesic hydrocodone, a concentration of 6.3 milligrams per liter of tramadol, and a concentration of 39.8 milligrams per liter of acetaminophen. Based on DeBellis's height of four feet, eleven inches, and weight of one hundred and twenty-seven pounds, Stripp estimated DeBellis had drunk in excess of six standard alcoholic beverages but it could have been more than ten drinks if consumed over a period of several hours. He testified a single dose of hydrocodone or tramadol would have a peak concentration after about two hours of 0.3 milligrams per liter. Although many variables could affect these figures, Stripp opined that DeBellis had about "20 times a typical therapeutic dose" of tramadol in her system, or roughly in excess of 20 pills. Similarly, Stripp opined that DeBellis had about four to eight hydrocodone tablets of five milligrams each in her system.
Stripp explained that hydrocodone and tramadol are pain medications used to treat moderate to severe pain that can depress the central nervous system "in a progressive manner," similar to alcohol, causing sedation, nausea, vomiting, and constipation. In increasing doses, the "depressant effects are exacerbated up to and including coma and ultimately the depression of the brain stem and respiratory, cardiorespiratory depression and ultimately potentially death." With a "significant respiratory depression following what would be potentially a lethal overdose," hypoxia, or lack of oxygen, develops. Stripp explained that when the brain is deprived of oxygen, there could initially be swelling. In addition, he testified alcohol also depresses the central nervous system depending upon various levels of tolerance.
Stripp explained that the combination of alcohol, hydrocodone and tramadol causes synergy, which he described as "1 plus 1 equals 4," or "where you're taking two drugs that produce effects on a physiological system and then when two drugs are taken together, the effects are greater than the sum of the whole two drugs." It can also affect a person's motor skills and thus increase the likelihood of falling or some other injury. High doses of the drugs can also increase seizure activity or cause a person to pass out and go unconscious.
Stripp opined the level of tramadol found in DeBellis's system was "within the range that you'd begin to see lethality," the hydrocodone was "right at that level where you would begin to see impairment," and the "alcohol again would be intoxicating alone in and of itself." He continued that "[t]he combination of all of these things together would cause very significant central nervous system depression, very possibly, and it's consistent with lethal respiratory depression." According to Stripp, "[t]hese concentrations are consistent with a lethal overdose."
With respect to the head injuries, Stripp stated that "these types of drugs, opioid drugs are also known to produce in toxic levels increases in cerebral pressure, cerebral spinal fluid pressure and . . . that increase in pressure can be exacerbated by the presence of life threatening head injuries." Stripp acknowledged on cross-examination that head injuries could also cause the brain to swell. Stripp maintained DeBellis's death was "consistent with an overdose" but he could not state with certainty whether she did or did not overdose or that there was no other "known cause" of death. Stripp challenged Rorke-Adams's testimony because she made incorrect statements about the pharmacology of these drugs and did not even know what tramadol was.
Dr. John Adams testified for defendant in the field of forensic pathology. Adams expressed his concerns about the accuracy of Shah's autopsy report because of the "failure to give any attributions to the toxicology report" and because of "some clearly wrong diagnoses having to do with the head and the brain." Specifically, he testified that Shah "repeatedly cited subdural hematomas and subdural hemorrhages" that DeBellis did not have, and that, according to Adams, Shah made up the word "pericranial." Adams maintained the only thing "wrong" with the brain was the "substantial swelling," which occurs when deprived of oxygen, as from an overdose of respiratory depressant drugs. In his view, the amount of swelling depends upon "how rapidly they die from their overdose"; the slower the death, the more swelling, as in this case. Adams concluded the bruises on DeBellis's head were not life threatening or as severe as Rorke-Adams concluded, and he opined the cause of death was "multi drug overdose."
Adams also testified DeBellis suffered from post-mortem bruising not noted as such by Shah and the method of dissection caused some decomposition or other "artifacts," i.e., imperfections caused by the autopsy process, that Shah took as injuries. He asserted the extent of bruising cannot be determined without examination through a microscope. Adams then reviewed pictures and microscopic slides pointing out to the jury the "real" bruises and those which may have been misinterpreted or caused by the autopsy process.
Adams also explained that if a person were lying completely down on their face for twelve hours, livor mortis would set in but the pressure points, like the tip of the nose, forehead and chin, would be blanched, or whiter than the rest of the front of the body, and, if that person were lying on an object, an impression of the item on the body might be seen as well. Adams characterized the bluish tinge of the face as "cyanosis" from the lack of oxygen, not livor mortis. He testified that if DeBellis had been face down on the mattress, as Rorke-Adams stated, there would have been blanched areas and, because no blanching was found, Adams discounted Shah's description of DeBellis being face down and Rorke-Adams's opinion of death based on that description. Instead, Adams relied on Wiltsey's police report that described DeBellis as lying on her left side, as depicted in several photographs. He also testified there were no "pathological observations" to confirm DeBellis was "knocked unconscious" as Rorke-Adams concluded.
Adams testified the marks around the mouth were bug bites despite the lack of bugs seen around the body because the marks were all very shallow and clustered around the "stomach drainage coming out of mouth." Adams disagreed with Rorke-Adams's opinion that the marks were from fingernails because fingernail marks would "leave an arced linear abrasion which is thin and curved." He opined that only one "little tiny hematoma of the lower lip" was real and the rest were artifacts.
On cross-examination, Adams agreed DeBellis had been in a "violent confrontation," but maintained she had not been punched in the nose or mouth or eye and could also have fallen while under the influence of the drugs. There were no marks on her neck showing strangulation and Adams asserted the brain would not have swelled as it did if DeBellis had been choked. Adams opined that the redness was "artifact, photographic artifact," and believed the marks on her neck were more bug bites.
Adams was also critical of Cohn's determination of death based on the toxicology of the stomach contents because "there are too many variables." Because DeBellis survived for at least an hour "in a state of cyanosis," there was time for her stomach contents to empty so the absence of undigested pills was not significant.
Defendant first argues the trial judge erred in allowing the State to present testimony from Dr. Weiss, who had been retained by defendant for purposes of the bail hearing. Dr. Weiss was served by the State with a subpoena and compelled to testify about his interview with defendant on July 27, 2004. The judge held that the psychologist-patient privilege had been waived.
According to Weiss, defendant "speculated" he had shot himself in the head using a gun "available to him," but that he had no actual memory of shooting himself. On cross-examination, Weiss confirmed he had been asked by defendant's previous attorney to evaluate defendant because "the court had actually assessed a special condition of bail that the court had to be convinced that the defendant was not a danger to himself or others before he would allow release on bail." Weiss opined, as he had at the bail hearing, that defendant was not a danger to himself or others.
Weiss had not known that the gun had been found under DeBellis's body and had not known whether defendant was aware of that fact either. Weiss agreed the issue arose during the interview because defendant said "if he wanted to kill himself or kill Miss DeBellis that he could have shot her or would have shot her if that was his intention and clearly it was not his intention to kill her."
Defendant maintains the judge's conclusion that defendant waived any privilege was erroneous and defendant's statements to Weiss were privileged and protected from disclosure by N.J.S.A. 45:14B-28. He argues that to allow use of such statements would "unduly burden a defendant's exercise of his constitutional right to bail." The State argues that the privilege was waived and, even if the testimony was erroneously permitted, its admission did not prejudice defendant's right to a fair trial. In examining these arguments, we consider (a) the nature of the privilege and when, as a general matter, it may be waived; (b) whether waiver may arise from an accused's use of the information at a bail hearing; (c) whether a waiver may be found, for purposes of a later trial, when privileged information is revealed at an earlier trial, which ended in a mistrial; and (d) whether the use of privileged information at defendant's trial caused prejudice.
A. The Psychologist-Patient Privilege
According to N.J.R.E. 505, N.J.S.A. 45:14B-28 provides [that] [t]he confidential relations and communications between and among a licensed practicing psychologist and individuals . . . in the course of the practice of psychology are placed on the same basis as those provided between attorney and client, and nothing in this act shall be construed to require any such privileged communications to be disclosed by any such person.
"[T]he psychologist-patient privilege protects the individual from public revelation of innermost thoughts and feelings that were never meant to be heard beyond the walls of the therapist's office." Runyon v. Smith, 322 N.J. Super. 236, 242 (App. Div. 1999) (quoting Kinsella v. Kinsella, 150 N.J. 276, 295 (1997)), aff'd, 163 N.J. 439 (2000). This privilege, which is given greater scope and protection than the physician-patient privilege, belongs to the patient and any waiver must be made by the patient. State v. L.J.P., 270 N.J. Super. 429, 438-39 (App. Div. 1994). However, the privilege is not absolute and may be overcome "where common notions of fairness clearly compel at least limited disclosure of otherwise confidential communications." Id. at 439 (quoting State v. McBride, 213 N.J. Super. 225, 270 (App. Div. 1986)).
B. Whether a Waiver Results from Defendant's Use of Privileged Information At a Bail Hearing
We reject the contention that defendant's statements to Weiss were not privileged because they were utilized by defendant at a bail hearing. We view the matter as driven by the same principles that prohibit an accused's testimony at a suppression hearing from being used as substantive evidence at the guilt phase. See Simmons v. United States, 390 U.S. 377, 394, 88 S.Ct. 967, 976, 19 L.Ed. 2d 1247, 1259 (1968); State v. Petrovich, 125 N.J. Super. 147, 148, 154 (Law Div. 1973).
In Simmons, the Court found it "intolerable that one constitutional right should have to be surrendered in order to assert another." 390 U.S. at 394, 88 S.Ct. at 976, 19 L.Ed. 2d at 1259. In giving full meaning to this salutary principle, we agree with the New Hampshire Supreme Court case that "a defendant should be encouraged to testify at a hearing on a motion to set bail without the fear that what he says may later be used to incriminate him." State v. Williams, 343 A.2d 29, 33 (N.H. 1975). See also United States v. Branker, 418 F.2d 378, 380 (2d Cir. 1969) (holding that "the government should not be permitted to use as part of its direct case any testimony given by a defendant at a hearing seeking forma pauperis relief or the assignment of counsel based on his financial inability to pay court costs, to procure the minutes, or to secure counsel"). We are not persuaded by those decisions that have taken a narrow view of Simmons' holding. See, e.g., United States v. Amato, 356 F.3d 216, 220 (2d Cir. 2004); United States v. Ingraham, 832 F.2d 229, 237-39 (1st Cir. 1987); United States v. Dohm, 618 F.2d 1169, 1173-75 (5th Cir. 1980); Spinelli v. United States, 382 F.2d 871, 891-92 (8th Cir. 1967), rev'd on other grounds, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed. 2d 637 (1969).*fn3 Although no court of this State has previously answered this question, our tradition of providing expansive rights against self-incrimination, see, e.g., State v. O'Neill, 193 N.J. 148, 180-81 (2007); State v. Muhammad, 182 N.J. 551, 568-74 (2005); State v. A.G.D., 178 N.J. 56, 68 (2003), demonstrates that the New Hampshire view is far more akin to our jurisprudence than the view expressed by federal cases that would find a waiver in these circumstances.
We also find no distinction to be drawn between the fact that in the decisions cited above it was the accused's bail-hearing testimony that was used at trial, whereas here we consider whether there was a waiver when defendant elicited privileged information from a psychologist retained by defendant to testify at his bail hearing. Defendants and their counsel must have the ability to consult with expert witnesses without the fear that any unfavorable material from such consultations will be used by the prosecution. State v. Mingo, 77 N.J. 576, 582 (1978). "The protection from unwarranted disclosure . . . is an indispensable element of a criminal defendant's constitutional right to the effective assistance of counsel." Id. at 587. We, thus, reject the State's argument that defendant waived the psychologist-patient privilege by calling Weiss to testify at the bail hearing.
C. Whether Waiver Results From The Failure to Object to The Eliciting of Privileged Information at an Earlier Trial
The State additionally argues that defendant waived the privilege by failing to object to Weiss's testimony at the first trial. In that trial, Weiss was called by the State as a witness. He testified that defense counsel had asked him to examine defendant to "see if he could be psychiatrically cleared to get bail." When the prosecutor asked if Weiss had told defendant he was not an adversary, Weiss explained his "usual thing" was to advise that "whatever you say is confidential, your lawyer has sent me, and whatever you tell me is confidential and I cannot use it against you as if I'm on the other side." The prosecutor also elicited that Weiss was reluctant to testify for the State.
It is well established that, as a general matter, once privileged material is disclosed, the privilege of nondisclosure is waived. State v. Long, 119 N.J. 439, 479 (1990); State v. Vassos, 237 N.J. Super. 585, 595 (App. Div. 1990); State v. Bishop, 187 N.J. Super. 187, 192 (App. Div. 1982). The record indicates that defendant's prior counsel did not object or assert defendant's privilege when the State called Weiss as its own witness at the first trial. Because a mistrial was ordered, we must consider whether defendant's silence when privileged information was revealed at the first trial was waived for purposes of the second trial.
When a new trial is required, the accused is placed in the same position as if no prior trial had ever occurred. For that reason, it is generally understood that a failure to object or to move for the suppression of evidence in an earlier proceeding does not foreclose such an objection or application in a later trial. State v. Miller, 382 N.J. Super. 494, 503 (App. Div. 2006); State v. Hale, 127 N.J. Super. 407, 413 (App. Div. 1974); see also United States v. Akers, 702 F.2d 1145, 1148 (D.C. Cir. 1983); United States v. Watson, 146 F. Supp. 258, 259 (D.D.C. 1956); State v. Darwin, 288 A.2d 422, 425-26 (Conn. 1971); State v. Osburn, 533 P.2d 1229, 1233 (Kan. 1975).
As a result, we conclude that defense counsel's failure to object at the first trial to Weiss's testimony did not preclude defendant from seeking to preclude that same or any other privileged testimony from Weiss at the second trial.
D. The Impact of Weiss's Testimony
Although we reject the trial judge's finding of a waiver, we conclude that the admission of Weiss's testimony was not capable of producing an unjust result. In light of the jury's acquittal of defendant on the murder, aggravated manslaughter and reckless manslaughter charges, Weiss's testimony that defendant maintained his innocence during their discussions was likely helpful to the defense, as was Weiss's opinion that defendant was not a danger to himself or others. In addition, Weiss testified that the issue about the guns left in the house came up during the interview because defendant was trying to make the point if I understood him that it didn't make any sense how she died and what he did to himself [be]cause obviously the gun was present, he could have used it, and it wouldn't -- and he also made the point along the way that he wouldn't have killed her anyway. You know, they had a good relationship.
This statement served to corroborate other testimony that defendant and DeBellis had a good relationship at the time of her death and may have contributed to the jury's decision to acquit defendant of more serious charges.
Defendant argues that the judge erred in charging the jury on aggravated assault by not following the model charge, by failing "to give the jury (in context) the critical definitions of purposeful, knowing and reckless," and by failing to "further define 'protracted'" in response to the jury's requests. We find insufficient merit in the first two aspects of this argument to warrant discussion in a written opinion, R. 2:11-3(e)(2); we reject the third aspect for the following reasons.
Because defendant challenges the aggravated assault charge for the first time on appeal, we apply the plain error rule. R. 2:10-2. "[A] defendant waives the right to contest an instruction on appeal if he does not object to the instruction." State v. Torres, 183 N.J. 554, 564 (2005); R. 1:7-2. Thus, we may reverse on the basis of unchallenged error only if the error was "clearly capable of producing an unjust result." R. 2:10-2.
"Appropriate and proper charges to a jury are essential for a fair trial." State v. Green, 86 N.J. 281, 287 (1981). Further, "[i]t is firmly established that '[w]hen a jury requests a clarification', the trial court is 'obligated to clear the confusion.'" State v. Savage, 172 N.J. 374, 394 (2002) (quoting State v. Conway, 193 N.J. Super. 133, 157 (App. Div.), certif. denied, 97 N.J. 650 (1984)). The trial court is required to ascertain the meaning of the jury's request. Ibid. "'An appropriate judicial response requires the judge to read the question with care to determine precisely what help is needed.'" State v. Graham, 285 N.J. Super. 337, 342 (App. Div. 1995) (quoting State v. Parsons, 270 N.J. Super. 213, 221 (App. Div. 1994)). When the error complained of involves the elements of the crimes charged, we will reverse unless the instruction as a whole adequately conveyed the essential elements for defendant's conviction. State v. Bielkiewicz, 267 N.J. Super. 520, 528 (App. Div. 1993).
The judge gave the following instruction on the lesser-included offense of aggravated assault. He first described the fact that there is a distinction between aggravated assault, serious bodily injury, and aggravated assault, significant bodily injury, in the following way:
Lesser included offense of aggravated assault, serious bodily injury. There's also a lesser included offense of aggravated assault, significant bodily injury. I'm going to read to you the entirety of the aggravated assault, serious bodily injury lesser included offense. The states of mind I had repeated for you earlier, I won't repeat unless you want me to and again I'd be happy to do that. Recognize please that the difference between aggravated assault and serious bodily injury and aggravated assault, significant bodily injury is simply the definition of what serious bodily injury is versus significant bodily injury. There's two separate legal definitions. [Emphasis added.]
The judge then defined aggravated assault, serious bodily injury:
Aggravated assault, serious bodily injury as a lesser included offense. Our law says a person is guilty of aggravated assault if he attempts to cause serious bodily injury to another or causes such injury purposely or knowingly or under circumstances manifesting an extreme indifference to the value of human life recklessly causing such an injury. Under this law, the defendant can be found guilty of aggravated assault if he either caused or attempted to cause serious bodily injury to another. To find the defendant guilty of aggravated assault for causing serious bodily injury to another, the State must prove beyond a reasonable doubt each of the following elements. Number one, that the defendant caused serious bodily injury to another and, two, that the defendant acted purposely or knowingly or acted recklessly under circumstances manifesting extreme indifference to the value of human life.
The judge then immediately defined what constitutes serious bodily injury:
The first element the State must prove beyond a reasonable doubt is that the defendant caused serious bodily injury to another. Serious bodily injury means bodily injury which creates a substantial risk of death or which causes serious permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ. The second element that the State must prove beyond a reasonable doubt is that the defendant acted purposely or knowingly or acted recklessly under circumstances manifesting extreme indifference to the value of human life.
Following those definitions and others, the judge defined significant bodily injury for the jury:
The legal requirements, that is, the elements of aggravated assault, significant bodily injury are identical to aggravated assault, serious bodily injury with the exception I told you about earlier, significant bodily injury. . . . Significant bodily injury means bodily injury which creates a temporary loss of the function of any body member or organ or temporary loss of any one of the five senses. The five senses are sight, hearing, taste, touch, and smell. That's the difference between aggravated assault, serious bodily injury and aggravated assault, significant bodily injury. The definitions of those two offenses, those two injuries. The elements, the state of mind elements remain the same. I have defined all that for you. As I previously instructed you the defendant can be found guilty if he either caused significant bodily injury to another or attempted to cause significant bodily injury to another.
Defense counsel asserted no objection to the charge. The jury foreperson was also given "a complete copy of what it is [that the judge] read" to it.*fn4
On the second day of deliberations, the jury asked for a legal definition of "protracted" as it relates to serious bodily injury. The judge responded that "[i]t means bodily injury which creates a substantial risk of death or which causes a permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ." The jury, however, sought a definition of the word "protracted." Defense counsel argued to the judge that he should provide a general dictionary definition; the prosecutor urged that the judge indicate only that the jury should use its own common understanding of the word. The judge agreed with the prosecutor and advised the jury that it would "have to rely upon your own understanding of what the word protracted means in light of the facts as you find exist in this case." The foreperson immediately asked for a "regular" dictionary definition but the court refused to permit that because one dictionary may have a nuance of definition that may be different from another dictionary and that nuance of definition may change. It may be different than what your common understanding is. And once we get into definitional inquiries like this--and you use one source reference for it as was requested -- you run into the possibility that one dictionary will contain a nuance to the definition that's different from another dictionary. And it may change a result based on the dictionary that's selected.
Defense counsel asked the court to reconsider giving a dictionary definition and the judge refused.
"A court's obligation [to] properly . . . instruct and to guide a jury includes the duty to clarify statutory language that prescribes the elements of a crime when clarification is essential to ensure that the jury will fully understand and actually find those elements in determining the defendant's guilt." State v. Alexander, 136 N.J. 563, 571 (1994). "For the purpose of instructing and guiding juries, courts regularly explain and define statutory language consistent with legislative intent. Courts commonly clarify statutory language to give more precise meaning to statutory terms to effect the legislative intent and to make sure that juries carry out that intent in determining criminal culpability." Id. at 571-72. "Courts follow that approach even when statutory terms have common or well-understood meanings based on ordinary experience." Id. at 572. "Further, statutes containing words whose meanings are ordinary and understandable often require a judicial determination with respect to their intended scope of application." Id. at 573.
Their persistence in seeking a clearer understanding suggests the jurors shared no common understanding of the meaning of "protracted." In considering whether the judge erred by failing to provide greater guidance, we examine the significance of "protracted" in these circumstances. The record suggests little question about whether DeBellis suffered any loss or impairment of the function of any bodily member or organ, protracted or otherwise. Because she died, the jury could convict defendant if he was found to have caused a serious bodily injury which created a substantial risk of death or which caused "protracted loss or impairment of the function of any bodily member or organ" (emphasis added). This was contrasted with the jury charge on aggravated assault, significant bodily injury, as to which the jury was told in essence the elements are the same as aggravated assault, serious bodily injury, except significant bodily injury "means bodily injury which creates a temporary loss of the function of any body member or organ or temporary loss of any one of the five senses" (emphasis added). From this, the jury would have been able to deduce the meaning of the word "protracted" as something that was "not temporary." Although it would have been preferable if the judge had simply said this to the jury or even attempted to fashion a definition of "protracted," with the caveat that "protracted" in this context would mean something longer in time than that which is "temporary," considering the evidence, and the other instructions provided, the jury likely reached that logical understanding when rendering its verdict.
Defendant argues that the judge erred in ruling that police entry into his home without a search warrant was lawful under the emergency aid exception and that evidence obtained should have been suppressed. Defendant contends that the State failed to satisfy all three prongs of the test for the application of the emergency aid exception because there was no "immediate need" present. See State v. Frankel, 179 N.J. 586, cert. denied, 543 U.S. 876, 125 S.Ct. 108, 160 L.Ed. 2d 128 (2004). Specifically, defendant relies on the fact that the victim's family members did not immediately go to the police and that the police made no effort to corroborate the information provided when the family finally did approach the police. Thus, according to defendant, the police "barged into defendant's house without a sufficient basis to conclude that an actual live emergency required the warrantless entry."
In ruling, the judge detailed the significant events leading up to the police entry, namely: (1) DeBellis failed to show up for work that day, which was "highly unusual" for her; (2) after the neighbor opened a window and yelled into the house, defendant responded "We're all right" (emphasis added), which the court found was an expression that DeBellis was also present; and (3) defendant did not respond to the police officers' shouts through the open window despite the neighbor's confirmation that defendant was still inside.
Pursuant to the emergency aid exception, public safety officials, including police, must be able to act in life-threatening situations without having to wait through the delays incurred when a warrant is sought. Id. at 598-99. Whether the doctrine applies is determined by a three-pronged test: the public safety official must have an objectively reasonable basis to believe that an emergency requires that he provide immediate assistance to protect or preserve life, or prevent serious injury; his primary motivation for entry into the home must be to render assistance, not to find and seize evidence; and there must be a reasonable nexus between the emergency and the area or places to be searched. [Id. at 600 (footnote omitted).]
The trial judge found the officers had an objectively reasonable basis to believe DeBellis required immediate assistance based on the circumstances. Specifically, the judge found that what defendant said to his neighbor and "what he didn't say to the police officers . . . would lead a reasonable person to believe that [DeBellis] was there in the house, in the room." As such, "[t]he motivation for the initial entry was to check on Ms. DeBellis" and "to render assistance" and "wasn't to find and seize evidence." The judge also found "a reasonable nexus between the emergency, the need to locate where Ms. DeBellis was and the area or places to be searched." And the judge further observed that the police had been advised that DeBellis had not been heard from in two days and her car had not moved from the driveway of defendant's house.
We defer to the trial judge's findings, State v. Locurto, 157 N.J. 463, 470-71 (1999), which fully support the determination that the emergency aid exception applied to excuse the warrant requirement in these circumstances.