May 31, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOHN CARNESI, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 09-03-0536.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically Argued May 3, 2012
Before Judges Sabatino, Ashrafi and Fasciale.
Defendant appeals from a June 25, 2010 conviction for second-degree aggravated assault, N.J.S.A. 2C:12-1b(1); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-3d; and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7b. The two primary issues are whether (1) the judge erred by (a) barring evidence of prior suicide attempts and acts of domestic violence of defendant's then girlfriend, and (b) limiting the defense proofs on the girlfriend's mental health history and treatment; and (2) a consultation between the defense attorney and a State's witness deprived defendant of a fair trial. We reverse solely on the first issue and remand for a new trial on the charges of aggravated assault and possession of a weapon for an unlawful purpose. We affirm the convictions for possession of a defaced firearm and certain persons not to have weapons.
Defendant and his girlfriend, F.M.,*fn1 had a ten-year relationship during which time she lived on and off in defendant's residence. On January 24, 2009, at approximately 8:30 p.m., they were home alone when she suffered two gunshot wounds, which she survived after emergency surgery. A grand jury indicted and charged defendant with attempted murder and related weapons offenses.*fn2 Defendant contended that the shooting was accidental and occurred while he was attempting to prevent F.M. from harming herself. Defendant maintained that F.M. had suffered from depression, bipolar disease, and acute anxiety disorder, and that she had a history of several suicide attempts. He also asserted that his relationship with F.M. had been filled with domestic violence.
On eight dates from March 25 to April 12, 2010, the judge conducted the jury trial. Among the seventeen witnesses who testified were defendant, F.M., and Aaron Steuer, defendant's friend who lived with defendant and F.M. for about a year through the day of the shooting. The assistant prosecutor objected to the admissibility of F.M.'s suicide attempts. He acknowledged that she had attempted suicide in the past, and proffered that she had done so because defendant abused her mentally and physically throughout their relationship. The assistant prosecutor indicated that if the defense attorney "opened the door" concerning F.M.'s suicide attempts, the assistant prosecutor would then elicit the history of the domestic violence between the couple to explain that she attempted suicide because defendant abused her. Defense counsel stated that he would not object to the admissibility of the domestic violence with F.M. Although the judge allowed defense counsel to elicit some information about F.M.'s mental illnesses, he prevented counsel from cross-examining F.M., or any other witness, about her suicide attempts, mental health history, and the acts of domestic violence, reasoning that such evidence would be harmful to the defense.
On direct examination, F.M. testified to the following. On the morning of the shooting, defendant received a phone call from a bank representative. F.M. believed that defendant had financial difficulties, but she did not know to what extent. After defendant completed that call, he asked her to purchase vodka, cigarettes, and lottery tickets, which she did and then returned home. They began drinking alcohol around noon, and she was intoxicated by the time the shooting occurred.
F.M. further testified on direct examination that two days before the shooting she located "a box of bullets in the kitchen junk drawer." She stated that in the ten years they had been together, there had been no firearms or bullets in the house, and that when she confronted defendant with the box of bullets, he responded, "'That's an old box of bullets. I just came upon them.'" She further stated that she removed one bullet and "threw it in the back of the drawer" because "[s]omething told [her that she] might need that." F.M. also testified that on the night of the shooting, she called her son to come get her because "it was very stressful and [she] just fe[lt] something [was] going on and [she] ha[d] to get out." She testified that her son was unable to pick her up because he was working, and that at some point that night, she went into the bedroom to sleep.
F.M. testified that defendant woke her by turning on and off the lights and throwing a bowl of chili at her, and then "summoned [her] to the kitchen." She stated that she walked into the kitchen, did not remember seeing a gun in defendant's hand, and turned her back, at which point she heard a pop and felt pain in her back and arm. She testified that she went to the front door, where defendant stopped her and held the gun to her chest, stating that he was going to kill her and then himself. F.M. stated that she tried to stop defendant by putting one hand on the barrel of the gun and, with the other hand, inserting her finger "behind" the trigger.*fn3 She did not recall if another shot was fired. She exited the house and ran to a neighbor's house, where the neighbors, a husband-doctor and wife-nurse, tended her wounds and called 9-1-1.*fn4 F.M. testified that only "a few minutes" elapsed between when she entered the kitchen and when she left the house, and that the confrontation at the front door lasted "a minute, minute and a half."
Sergeant John Heim arrived at 8:41 p.m. Heim testified that F.M. told him that "her live-in boyfriend, John, had shot her during the argument, and that he wanted to kill both her and himself." He further stated that she told him that to her knowledge, there was only one gun, and that defendant was quite intoxicated. Thereafter, F.M. was taken by ambulance to the hospital.
The police then focused their attention on locating defendant, and moved their cars to illuminate his house. Heim testified that he could see a "figure looking out various windows, moving around the residence." The police attempted to contact defendant on his cell phone and with a PA system in Heim's patrol car. When these efforts were unsuccessful, Heim radioed to police headquarters to activate the S.W.A.T. team.
Soon thereafter, Sergeant Herman Pharo, the S.W.A.T. commander, arrived. Pharo evacuated surrounding houses and inserted a "throw phone" into the house, but he was unable to establish contact with defendant. At approximately 10:30 p.m., the S.W.A.T. team entered the house. Pharo testified that he found defendant in the basement wearing only his underwear and holding the gun in his hand extended down at his side. Pharo instructed defendant to drop the gun, which he did. The police then arrested defendant. Pharo retrieved the gun and unloaded it. He observed that there had been one round in the chamber and another in the magazine, and that the safety was off.
After F.M. was taken to the hospital, Dr. Samir Patel, a trauma surgeon, performed an exploratory laparotomy, repaired her stomach, and removed her spleen. Dr. Patel testified on cross-examination that he initially believed the bullet traveled from "back-to-front," but "[he] honestly [didn't] recall" that the discharge summary indicated the bullet entry was from "abdomen to back."*fn5
While in the hospital, mental health professionals evaluated F.M. because she complained of post traumatic stress disorder. During the evaluation, she admitted that she attempted suicide on four or five occasions prior to the shooting.
On cross-examination, F.M. stated that she did not live in defendant's house continuously, but rather sometimes lived in various shelters. For one and one-half months before the shooting, she lived in a motel, but "was staying" at defendant's house during that timeframe. The judge did not permit the defense attorney to cross-examine F.M. regarding why she lived in shelters.
F.M. further stated on cross-examination that she had been diagnosed with bipolar disease and depression and, as a result, had been prescribed Paxil, which she had taken on the night before the shooting. She admitted that she had been advised in the past not to consume alcohol because "[i]t would lessen the effects of the Paxil," that she was "not really sure" how long she had been taking Paxil, but that she had been on "several different" medications for her depression.
On direct examination, defendant testified that on the morning of the shooting he received a "good phone call" from his mortgage company notifying him that his mortgage was paid off.*fn6
He testified that he wanted to celebrate and asked F.M. to buy alcohol. He admitted that he became intoxicated, and had no recollection of the shooting. He testified that although he had never seen a gun in the house, he had known for many years that the box of bullets was in the kitchen junk drawer.
On direct examination, defendant explained the nature of his relationship with F.M. In describing her mental illness, he stated:
I took her to doctors, I tried to get her her treatment. She just fought it all the time. She would get drugs, pills. She would take them, not as directed, but she would take them. Sometimes she took them, sometimes she didn't. Cymbalta. Lexapro. I mean, you name it, she took every kind of drug there was for bipolar disorder. Some of them made her rage, some of them didn't. Some of them made her sleep for days. It was just what she did. I mean, I tried a lot to help her. I tried. Took her to the best psychiatrist, didn't help.
Defendant explained that F.M.'s psychiatrist met with him and discussed her medications with him. Defendant testified that there were times when F.M. "had episodes of bipolar [disorder.] She would leave [the house] for a week sometimes. She tried to commit suicide many times[.]"*fn7 He described his relationship with F.M. as "hot and cold," and stated that "[i]t [was] just a cycle thing with this bipolar stuff."*fn8
Steuer testified on direct examination that he had been friends with defendant for approximately eight to ten years, and that he had been living in defendant's home with F.M. for about a year before the shooting. He testified that two nights before the shooting, while standing in the kitchen, defendant showed him a handgun and stated that "[t]hings were going to get ugly." F.M. walked into the kitchen and questioned defendant, in front of Steuer, about the box of bullets she located in the junk drawer. Steuer observed that defendant denied any knowledge about the box of bullets, and that F.M. and defendant argued. Steuer further testified that on the morning before the incident, defendant asked Steuer to leave so that he was not "involved." Steuer left and did not return. Six weeks after the shooting, Steuer provided a DVD-recorded statement to the police, which the court played for the jury, without objection.*fn9
The State also presented testimony from Daniel Barrett, a senior forensic scientist and ballistics expert employed by Ocean County. Barrett examined defendant's gun and testified that the serial number had been eviscerated by a drill. He also determined that the gun had fired two shell casings and a spent bullet that were recovered from the home. Barrett examined F.M.'s clothes from the shooting and concluded that two shots were fired from a distance of more than three feet.
Defendant's forensic ballistics expert, Richard Ernest, testified that the entry wound was in the front of F.M.'s body, and that the bullet had exited through her back. Ernest opined that F.M. would not have been able to fit her finger behind the trigger, but that she might have been able to fit her finger into the trigger guard. He further opined that F.M. could have inflicted the gunshot wound on herself.
Midway through the trial, the judge conducted a N.J.R.E. 104(a)
hearing to determine primarily whether to allow the mental health
professionals who evaluated F.M. in the hospital to testify. The judge
ruled, "I'm not going to permit the psychiatrist or psychologist to
testify." The judge also reiterated his ruling that F.M.'s prior
suicide attempts and history of domestic violence would be
inadmissible. On April
12, 2010, the jury acquitted defendant of
attempted murder but found him guilty of aggravated assault and the
remaining weapons charges. The judge granted the State's motion for a
mandatory extended sentence pursuant to the Graves Act, N.J.S.A.
2C:43-6c, and imposed an aggregate sentence of eighteen years with an
eighty-five percent period of parole ineligibility.*fn10
This appeal followed.
On appeal, defendant raises the following points:
THE TRIAL COURT'S EXCLUSION OF DEFENSE EVIDENCE OF THE VICTIM'S MENTAL ILLNESS AND HISTORY OF VIOLENCE AND SUICIDE ATTEMPTS, DESIGNED TO SHOW THAT THE SHOOTING WAS THE ACCIDENTAL RESULT OF HER OWN CONDUCT, DEPRIVED DEFENDANT OF THE RIGHT TO PRESENT A DEFENSE AND TO CONFRONT WITNESSES AND THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMENDS. V, VI, XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10.
BECAUSE OF A CONFLICT OF INTEREST ARISING FROM A CRUCIAL STATE'S WITNESS'S CONSULTATION WITH DEFENSE COUNSEL ABOUT PENDING CHARGES, DEFENDANT WAS DEPRIVED OF THE RIGHT TO EFFECTIVE REPRESENTATION, THE RIGHT TO CONFRONT WITNESSES, AND THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMENDS. V, VI, XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10. (Not Raised Below).
THE ADMISSION OF EVIDENCE OF DEFENDANT'S PRIOR POSSESSION OF A GUN VIOLATED THE RULES OF EVIDENCE AND DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10 (Not Raised Below).
THE CONVICTION FOR POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE SHOULD HAVE BEEN MERGED WITH THE CONVICTION FOR AGGRAVATED ASSAULT.
DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.
We begin by addressing defendant's contention that the judge erred by (1) excluding evidence of F.M.'s suicide attempts and evidence of her history of domestic violence with him; and (2) concluding that defendant did not overcome F.M.'s "psychologist-patient" privilege. As a result, defendant maintains that the judge abused his discretion, prevented him from confronting witnesses, and deprived him of a fair trial.
We review evidential rulings of a trial court under an abuse of discretion standard. State v. Marrero, 148 N.J. 469, 483-84 (1997). "A trial court's ruling will not be upset unless there has been an abuse of that discretion, i.e., there has been a clear error of judgment." State v. Koedatich, 112 N.J. 225, 313 (1988) cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989). Moreover, even when an evidentiary ruling is erroneous, reversal is not warranted unless it has the capacity to give us a reasonable doubt about the verdict. R. 2:10-2.
During the cross-examination of F.M., defense counsel attempted to explore her mental health history, including her prior suicide attempts, but the judge sustained the State's objection and stated:
I think that by broadening the scope of this inquiry into past [attempted] suicides and potentially opening the door to a history of battering, which the prosecutor has indicated would be the reason for her trying to commit suicide, I think that it's invited error.*fn11 I think it's beyond the scope of inquiry with regard to this trial.
The purpose of this trial is to determine what happened on January 24th with regard to the victim being shot. So I'm not going to permit any questions with regard to the suicide [attempts].
On the next trial date, the judge elaborated on the reasons for preventing the defense attorney from questioning F.M. about her prior suicide attempts:
[T]he testimony [regarding prior suicide attempts] would have supported the defendant's theory of events outlined in his opening statement, that is[,] that the victim was attempting to take her own life with a handgun on January 24th, 2009, . . . during the defendant's attempt to intervene.
The State argued that these prior suicide attempts were not relevant . . . . And further, that the significant history of domestic abuse and battering of the victim should be admissible if these suicide attempts would be admissible, since it provided an impetus for the victim's prior acts in trying to kill herself.
I've reviewed the reports of the treating psychiatrist*fn12
which were created during her stay in the hospital. And these
reports indicate that the victim . . . did try to take her own life on
four or five prior occasions by overdosing on her blood pressure and
Of particular note is that there was no indication in the reports that the victim was being treated as a result of suicide attempt, or that she had attempted to commit suicide on that particular occasion, which would make the information relevant.*fn13
[G]enerally, our rules do not permit the introduction of a person's prior specific acts to show that a person acted in conformity therewith unless they are relevant to a specific fact at issue. And that's [N.J.R.E. 404(b)].
[T]he proffered evidence, in my view, smacks of impermissible propensity. That is, the victim's attempted suicide on the prior occasions by overdosing on prescription medications is not similar or relevant to any subjective issue in this case, which involves a handgun and a shooting.
Further, even if there is some factual relevance, there is no legal relevance.
That is, the potential prejudice and confusion which would result from the admission of the evidence, and what would be a lengthy exploration into the surrounding facts of the prior attempts, including allegations of defendant's battering and abuse of the victim, outweigh anything which could have any probative value in this case.
In preventing defense counsel from probing into the history of domestic violence between F.M. and defendant, the judge stated that "if [F.M.] testifies that she was in a woman's shelter because of being battered, it's going to be difficult to shut that door." The judge stopped defense counsel from eliciting "other incidents" observed by defendant's neighbor, instructed the jury to disregard comments of the S.W.A.T. leader, Sergeant Pharo, regarding whether other officers were familiar with defendant's residence, and sustained the State's objection during Steuer's testimony concerning whether Steuer observed domestic violence between defendant and F.M.*fn14
The admission of evidence of "other crimes, wrongs, or acts" is governed by N.J.R.E. 404(b), which prohibits the admission of such evidence "to prove the disposition of a person in order to show that such person acted in conformity therewith." The rule permits, however, admission of such evidence "for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute." Ibid. "Although N.J.R.E. 404(b) enumerates certain instances when other crime evidence will be admissible, the specification of particular instances is only illustrative." Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment 7 to N.J.R.E. 404(b) at 203 (2011).
Although courts generally apply N.J.R.E. 404(b) to evidence of "other crimes, wrongs, or acts" of the defendant in a criminal case, the rule is readily applicable to "other crimes, wrongs, or acts" of a prosecution witness. See State v. Gookins, 135 N.J. 42, 46 (1994). "[A]n accused is entitled to advance in his defense any evidence which may rationally tend to refute his guilt or buttress his innocence of the charge made." State v. Garfole, 76 N.J. 445, 453 (1978). Thus, a defendant may "defensively" use evidence of "other crimes, wrongs, or acts" of a state's witness "if in reason it tends, alone or with other evidence, to negate his guilt of the crime charged against him." Ibid.
"The standard for introducing defensive other-crimes evidence is lower than the standard imposed on 'the State when such evidence is used incriminatorily [because] when the defendant is offering that proof exculpatorily, prejudice to the defendant is no longer a factor, and simple relevance to guilt or innocence should suffice as the standard of admissibility.'" State v. Cook, 179 N.J. 533, 566 (2004) (alteration in original) (quoting Garfole, supra, 76 N.J. at 452-53).*fn15 "Even if defensive other-crimes evidence passes the 'simple' relevancy test, however, a court must still consider whether 'its probative value is substantially outweighed by the risk that its admission will either (a) necessitate undue consumption of time or (b) create substantial danger of . . . confusing the issues or of misleading the jury.'" Ibid. (alteration in original) (internal quotation marks omitted) (quoting Garfole, supra, 76 N.J. at 455-56).
Relevant evidence is any evidence "having a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. "Courts consider evidence to be probative when it has a tendency to establish the proposition that it is offered to prove." State v. Burr, 195 N.J. 119, 127 (2008) (internal quotation marks omitted). "In evaluating the probative value of evidence, our inquiry focuses on the logical connection between the proffered evidence and a fact in issue." Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 15 (2004) (internal quotation marks omitted).
Here, defendant proffered F.M.'s suicide attempts and mental health to show his perception that on the night of the shooting, F.M. was attempting to harm herself. F.M. testified on direct examination that after she reached the kitchen door, she turned around and started to walk away, creating the inference that she acted peacefully. Defendant proffered the evidence of F.M.'s suicide attempts and mental health history to explain his state of mind, i.e., that it was his belief, based on his ten-year relationship with F.M. and his firsthand knowledge of her multiple attempted suicides and mental health, that she was mentally unstable and suicidal. F.M. admitted that she struggled with defendant for a minute to a minute and a half before she exited the house, which could support defendant's theory that he attempted to prevent her from harming herself. Further, the State does not dispute that F.M. was shot in the front, not back, which a jury could find consistent with a struggle. The judge even acknowledged the relevance of the proffered evidence when he remarked that F.M.'s prior suicide attempts "would have supported the defendant's [defense] theory[.]"
Defendant's theory is similar in logic to the defense theory advanced in State v. Budis, 125 N.J. 519, 537 (1991), a case involving New Jersey's rape shield law. There, the Court explained that the defense was not that the nine-year-old complainant fabricated the alleged sexual misconduct, "but that she initiated [it], and that defendant promptly tried to stop her." Ibid. The Court stated that "evidence of an alternative source of [the complainant's] sexual knowledge is crucial" because "the jury would naturally be disinclined to believe that a nine-year-old child would know enough about sexual acts to initiate the alleged encounters." Ibid.; see also State v. B.M., 397 N.J. Super. 367, 378-79 (App. Div. 2008) (holding that the trial court appropriately accorded latitude to the defendant to inform the jury of the ten-year-old complainant's past sexual abuse accusations against three of her cousins because, whether true or false, such information could "bring into question her veracity and the basis for her knowledge of sexual matters" and was therefore "relevant and probative to a defense [that the defendant] may wish to pursue").
As in Budis, supra, 125 N.J. at 537, where the defendant proffered evidence of other sexual abuse against the nine-year-old complainant to show how she could "know enough about sexual acts to initiate the alleged encounters," defendant here proffered evidence of past acts of the complainant to explain a mental state that would circumstantially support his version of the night's events. He proffered evidence to show his knowledge of F.M.'s mental health and attempted suicides in order to explain that he was attempting to prevent her from harming herself. Further, we recognize that "[a]lthough the jury may reject defendant's contention . . ., the issue remains one for the jury's consideration." Ibid.
Next, the "important coordinate factors [of N.J.R.E. 403(a)], highly material to the sound administration of the trial process, require appraisal along with the factor of the degree of relevance of defendant's proffered proofs." Garfole, supra, 76 N.J. at 455. Thus, a court must still determine whether the probative value of the evidence "is substantially outweighed by the risk of . . . undue prejudice, confusion of issues, or misleading the jury." N.J.R.E. 403(a); Cook, supra, 179 N.J. at 567.
We conclude that the proffered evidence was not substantially more
prejudicial than probative. The judge stated
that "the potential prejudice and confusion which would result from
the admission of the . . . prior [suicide] attempts, including
allegations of defendant's battering and abuse of
anything which could have any probative value in this case." The judge
expressed concern that the "past suicides [would] potentially open
the door to [the State introducing into evidence] a history of
battering." However, defendant argued that such evidence was
admissible to place his relationship with F.M. in context.*fn16
See State v. Ramseur, 106
N.J. 123, 266-67 (1987)
(permitting the State to introduce into evidence arguments between the
defendant and victim over a year and a half before the killing to show
hostility); State v. Eatman, 340 N.J. Super. 295, 301 (App. Div.)
(allowing the defendant's domestic violence against the victim and
others to counter defendant's diminished capacity defense), certif.
denied, 170 N.J. 85 (2001).
We appreciate that the judge was apparently trying to avoid potential undue prejudice to defendant, but defendant's trial strategy was that it was beneficial for the jury to hear this evidence. See State v. Castagna, 187 N.J. 293, 314 (2006) ("'No particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant.'" (quoting Strickland v. Washington, 466 U.S. 668, 688-89, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674, 694 (1984))). Although the judge was concerned that introduction into evidence of the domestic violence and suicide attempts would lead to a "lengthy exploration into the surrounding facts of the prior [incidents]," the judge could have sanitized the prior acts by permitting only general reference to them, excluding all specific details, Eatman, supra, 340 N.J. Super. at 300, and crafting a strong limited instruction pursuant to N.J.R.E. 105.
Regarding defendant's contention that the judge erred by concluding defendant did not overcome F.M.'s "psychologist-patient" privilege, we conclude that the N.J.R.E. 104(a) hearing was insufficient to resolve the issue.*fn17 The record before us does not demonstrate that F.M. was on notice of her right to invoke a privilege based on confidential communications, or that the potential invocation of that privilege was addressed prior to the trial.*fn18 On remand, if defendant wishes to pursue testimony from F.M.'s mental health professionals, we direct that the judge consider the issue anew, determining whether F.M. has invoked a privilege, what privilege is invoked, and whether that privilege has been overcome or waived.
The judge conducted the N.J.R.E. 104(a) hearing to determine whether to permit, in his words, the "psychiatrist or psychologist" to testify during the trial.*fn19 The "psychiatrist or psychologist" to which the judge and counsel were referring at the hearing was the health professional who prepared the mental health report of F.M. when she was in the hospital shortly after the shooting.
The defense attorney contended at the hearing that he wanted to question the health professionals regarding their findings, diagnoses, medications, treatment, and what effect F.M.'s alcohol consumption may have had on her medications.*fn20 He also wanted to question the doctors about F.M.'s statement that she abused drugs. The report reflected that F.M. attempted suicide on four to five occasions, including eight months before the shooting, and defense counsel wanted to question the doctors generally about F.M.'s mental health and their recommendations that she continue with her medication and outpatient treatment with her psychiatrist. Defense counsel specifically wanted to inquire whether the doctor's diagnosis of bipolar disease meant that F.M. was delusional.
The judge mentioned that "the ordinary procedure . . . would be for the prosecutor to provide the notes and the reports to the judge to be reviewed in camera to determine if there was any relevant information that required disclosure prior to them being provided in discovery." Here, there was no need to review "the notes and the reports" in camera because the assistant prosecutor produced them in discovery. Nevertheless, the judge applied the three-part test of In re Kozlov, 79 N.J. 232, 243-44 (1979), and stated, "I'm not going to permit the psychiatrist or psychologist to testify."*fn21
On this record, we are unable to determine whether the assistant prosecutor notified F.M. of the hearing and whether F.M. waived any applicable privilege.
Next, we address defendant's contention, raised for the first time on appeal, that he was denied a fair trial because his counsel consulted with Steuer regarding Steuer's drug charges. Defendant contends that Steuer was his trial counsel's "former prospective client," and that defense counsel failed to obtain proper waivers from defendant and Steuer. We review defendant's argument pursuant to the plain error standard. R. 2:10-2. "Under that standard, '[a] reviewing court may reverse on the basis of unchallenged error only if it finds plain error clearly capable of producing an unjust result.'" State v. Bunch, 180 N.J. 534, 541 (2004) (quoting State v. Afanador, 151 N.J. 41, 54 (1997)).
On cross-examination, Steuer testified that he had been on probation for approximately two years before the shooting. He admitted that while on probation, he was indicted on drug conspiracy charges.*fn22 Steuer further testified that before he gave his statement to the police he "might have" indicated that he wanted his conspiracy charge to "go away."*fn23 When defense counsel questioned Steuer about whether he had sought legal advice regarding jail exposure on the conspiracy charges, Steuer stated, "I talked to you."
At this point, the judge conducted a side-bar conference and the following exchange occurred:
DEFENSE COUNSEL: I didn't represent [Steuer]. [Steuer] indicated [that] he had spoken to other attorneys. I told him before representing him, or even thinking of representing him, I was going to need a retainer, [Steuer] said he did not have the funds. [Steuer] would talk to [defendant] about the funds. And that was the last conversation we had about it.
THE COURT: [Y]ou must have known that you spoke with him.
DEFENSE COUNSEL: [W]e mentioned that earlier . . ., before the trial started,*fn24 that Mr. Steuer had contacted me, but that I did not offer any representation whatsoever.
THE COURT: I'm going to tell the jury, disregard the question, disregard the answer, that there was no representation, and go on from there.
New Jersey Rule of Professional Responsibility 1.18 was adopted in 2004 to "clarify a lawyer's obligations arising from preliminary consultations with a prospective client[,] and it allows that preliminary consultations may not result in a lawyer-client relationship, but nevertheless may in certain circumstances preclude the lawyer from accepting some subsequent representations adverse to the prospective client." O Builders & Assocs., supra, 206 N.J. at 112 (internal quotation marks omitted). The rule "seeks to strike a delicate balance between a client's right to protect communications made in the context of a consultation precedent to the actual retention of a lawyer, and the lawyer's right to be free to represent clients without being unduly restricted by the yoke of short-lived consultations that do not ripen into an attorney-client relationship." Id. at 113.
RPC 1.18(a) recognizes generally that a lawyer may not use or reveal information that he or she acquired in consultation with a prospective client. "[A] lawyer who has consulted with a former prospective client 'shall not represent a client with interests materially adverse to those of a former prospective client in the same or a substantially related matter if the lawyer received information from the former prospective client that could be significantly harmful to that person in the matter[.]'" Ibid. (quoting RPC 1.18(b).) A disqualified lawyer, however, may obtain written informed consent from the "former prospective client" and the affected client. RPC 1.18(c).
On this record, we cannot say that defense counsel obtained information from Steuer that "could be significantly harmful [to Steuer]." Nor can we say that defendant was denied a fair trial based on the brief consultation between Steuer and defense counsel. Steuer admitted that when he gave his statement to the police regarding the shooting, his own drug charges were pending and that he "might have" stated to the police that he wanted his own charge to go away. Thus, defense counsel attacked Steuer's credibility and aggressively cross-examined Steuer on two separate trial dates. We are therefore unable to find error, much less plain error clearly capable of producing an unjust result as to defendant.*fn25
On appeal, defendant argues for reversal of the entire judgment of conviction, including his convictions for fourth-degree possession of a defaced firearm and second-degree certain persons not to have weapons. We emphasize that the police located defendant holding the gun in the basement two hours after the shooting. Because there was evidence beyond a reasonable doubt to prove the elements of these two offenses, these convictions are legally sound and will not be disturbed.
A person is guilty of the crime of fourth-degree possession of a defaced firearm, in violation of N.J.S.A. 2C:39-3d, if that person "knowingly has in his possession any firearm which has been defaced, except an antique firearm or an antique handgun." The state must prove three elements, beyond a reasonable doubt:
(1) there was a firearm, (2) the firearm was defaced, and (3) defendant knowingly possessed that firearm. See State v. Smith, 197 N.J. 325, 338 (2009) (holding that the State is not required to prove that the defendant, at the time he knowingly possessed the firearm, also "knew" it was defaced). Here, it was not disputed that the S.W.A.T. team found defendant in his basement holding a firearm at his side in his hand, and that he was knowledgeable enough, two hours after the shooting, of his possession to drop the weapon upon command. We note that defendant never specifically contested at trial that he was capable of knowing that he controlled the gun at the time the S.W.A.T. team reached him, and his conduct of peering out the windows following the shooting also indicated his awareness. Also, it was not, and is not now, disputed that the gun was defaced at the time defendant possessed it.
Next, a person is guilty of the crime of second-degree certain persons not to have weapons, in violation of N.J.S.A. 2C:39-7b, if he or she has been convicted of one of the enumerated N.J.S.A. 2C:39-7b offenses and then "purchases, owns, possesses or controls a firearm." The elements of this offense, similar to those of the defaced firearm offense, require the State to show beyond a reasonable doubt that: (1) defendant was convicted for one of the enumerated offenses, and then, subsequently, (2) purchased, owned, possessed, or controlled (3) a firearm. Here, the parties stipulated that "defendant had a prior conviction for one of the enumerated offenses as defined in N.J.S.A. 2C:39-7b that would qualify him as a certain person under [N.J.S.A.] 2C:39-7b(1)." Further, and again, there is no dispute that the police found defendant in possession and control of a firearm in his hand hours after the shooting, and that the weapon was later produced at trial.
Defendant argues that the judge erred by allowing the State to present evidence to impeach defendant's denial of prior knowledge and possession of handguns in his house. He contends that the error violated his due process rights and right to a fair trial, and amounted to plain error. We disagree.
During his direct testimony, defendant denied ever having or seeing a gun in the house. On cross-examination, he maintained that denial. When confronted with an October 31, 2002 police report stating that defendant had reported the burglary of two handguns, a BB gun, and a stun gun from his residence, defendant denied reporting the items stolen. He testified: "I'm not sure if they were in the house. There was a lot of guns in the house as far as replicas and things that at the kids played with. The Nintendo games had guns. I don't know." As such, the State presented rebuttal testimony from detective Jason Costello, who testified that he had responded to a burglary call at defendant's home on the report date, and that defendant had specifically identified two .22 caliber handguns that belonged to him and were stolen.
Usually, we apply an abuse of discretion standard when reviewing a trial court's ruling on the admissibility of evidence. Brenman v. Demello, 191 N.J. 18, 31 (2007). "However, if the party appealing did not make its objection to admission known to the trial court, the reviewing court will review for plain error, only reversing if the error is 'clearly capable of producing an unjust result.'" State v. Rose, 206 N.J. 141, 157 (2011) (quoting R. 2:10-2).
"[O]nce the defendant elects to testify, similar to every other witness, the defendant has an obligation to tell the truth on the witness stand." State v. Brown, 190 N.J. 144, 158 (2007) (citing State v. Burris, 145 N.J. 509, 530 (1996)). Consequently, the State may cross-examine a defendant or offer rebuttal testimony "with respect to prior statements inconsistent with the exculpatory story told at trial." State v. Deatore, 70 N.J. 100, 118-19 (1976) (emphasis in original). Defendant asserts that the "credibility of the defense was unfairly undermined by the testimony concerning prior knowledge and possession of handguns." He relies on State v. Hutchins, 241 N.J. Super. 353, 361 (App. Div. 1990), to argue that "specific instances of a witness' conduct, relevant only insofar as they may tend to prove a trait of his character, may not be used to affect credibility." Defendant also relies on N.J.R.E. 608(a) ("a trait of character cannot be proved by specific instances of conduct"), and N.J.R.E. 405(a) ("[s]pecific instances of conduct not the subject of a conviction of a crime shall be inadmissible"). Defendant's reliance on these authorities, however, is misplaced.
In Hutchins, the court considered whether the judge had "erroneously allowed a rebuttal witness to testify to the details of the defendant's prior arrest in order to affect defendant's credibility." Hutchins, supra, 241 N.J. Super. at 358 (emphasis added). Here, defendant's inconsistent statements on direct examination placed in issue his knowledge and possession of firearms in his house in 2002. Defendant maintained on cross-examination that he had never reported the guns stolen and that the police report was erroneous. The State could therefore present rebuttal testimony from Costello. Defendant incorrectly contends that the rebuttal was done to impugn his character with a specific instance or prior inappropriate conduct, as forbidden by N.J.R.E. 608(a) or N.J.R.E. 405(a). The judge did not commit error, let alone plain error.
Defendant argues that the judge imposed a manifestly excessive sentence of eighteen years with 85% parole ineligibility. The focus of his argument is that a lesser sentence was warranted, especially in light of the severe parole consequences of the No Early Release Act, N.J.S.A. 2C:43-7.2. Because we are reversing and remanding the convictions for second-degree aggravated assault and second-degree possession of a weapon for an unlawful purpose, we need not review the sentences for those crimes. However, as to fourth-degree possession of a defaced firearm, for which the judge sentenced defendant to eighteen months with the mandatory eighteen months of parole ineligibility, N.J.S.A. 2C:43-6c, and second-degree certain persons not to have weapons, for which the judge sentenced defendant to nine years with five years of parole ineligibility, we affirm.
Defendant contends that the judge erred by not applying mitigating factors N.J.S.A. 2C:44-1b(3) (defendant acted under a strong provocation); (4) (substantial grounds tending to excuse or justify defendant's conduct); (5) (victim induced or facilitated commission of the crime); (7) (defendant has no history of prior delinquency or criminal activity or has led a law-abiding life); and (11) (imprisonment would entail excessive hardship to defendant or his dependents).
The judge found aggravating factors N.J.S.A. 2C:44-1a(1) (nature and circumstances of offense); (2) (gravity and seriousness of harm); (3) (risk of reoffending); (6) (extent of prior criminal record and seriousness of offenses convicted); and (9) (need for deterring). The judge found no mitigating factors.
Our review of a sentence is limited. State v. Roth, 95 N.J. 334, 364 (1984). We do not substitute our judgment for that of the sentencing judge or impose our own view of an appropriate sentence. State v. Bieniek, 200 N.J. 601, 607-08 (2010); State v. Evers, 175 N.J. 355, 386 (2003). If the judge followed the sentencing guidelines, we do not second-guess the sentencing. State v. Jabbour, 118 N.J. 1, 5 (1990).
We understand that aggravating factors (1) and (2) related to the convictions we are reversing; however, aggravating factors (3), (6) and (9) substantially outweighed the nonexistent mitigating factors on the defaced firearm and certain persons convictions. The judge stated that defendant had "five prior convictions, some of which involving prior handgun use." He observed that defendant had a prior conviction for shooting eight times at his ex-wife's residence. We conclude that the judge did not abuse his discretion in applying the aggravating factors and finding no mitigating factors. Because he sentenced defendant within the sentencing guideline range, we will not disturb the sentences as to the convictions not being reversed on appeal.
We need not reach the remaining argument advanced by defendant because we are reversing and remanding for a new trial.
Reversed and remanded.