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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...