On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 03-11-2238.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 30, 2012
Before Judges A. A. Rodriguez, Sabatino, and Ashrafi.
Tried by a jury, defendant Oscar Cordoba was found guilty of first-degree murder of his mother-in-law, whom he repeatedly stabbed with a kitchen knife and beat to death on a morning in September 2003 while she was visiting his home. During that same incident, defendant stabbed his wife and attacked one of their three minor children. He also struck two police officers later that day. At trial, defendant attributed his violent behavior to a seizure disorder. The jury nevertheless convicted him of the murder and other crimes associated with the assaults. The trial court imposed an aggregate sentence of fifty-eight years, with corresponding periods of parole ineligibility.
Defendant appeals, alleging insufficient proof of a culpable state of mind to commit murder, numerous trial errors, improprieties in jury selection, flawed jury instructions, and an excessive sentence. We affirm.
The evidence at trial focused both upon defendant's violent acts and his mental and physical health, including his long history of seizures. Because defendant's arguments on appeal largely concern his state of mind and his seizure condition, we discuss the factual and expert proofs relating to those issues in considerable detail.
Defendant is an Argentinean immigrant. He lived in Egg Harbor Township and was married to Sylvia Cordoba.*fn1 Defendant and Sylvia had three children: a daughter, who was sixteen at the time of the attacks; a younger teenage daughter; and a son who was nine. Defendant had a history of seizures.
According to the older daughter, in April 1998, defendant had been pacing the home and complaining that the family did not want him around anymore. A short time later, that daughter responded to her mother's screams for help and discovered defendant beating Sylvia with a cable television box. The blows injured Sylvia's eye, requiring surgery. Defendant pled guilty to simple assault, and was placed on a year of probation.
A. The September 15, 2003 Episode
On September 14, 2003, the children were participating in a karate tournament, while defendant's seventy-five-year-old mother-in-law, Julia Bradway, was visiting. According to the older daughter, during the tournament defendant acted rudely towards his family and towards a karate school employee. Afterwards, the family went to dinner with several friends. The older daughter recalled that Sylvia told her to watch her father because he was acting abnormally.
The following morning, September 15, 2003, the younger daughter and Julia were upstairs in bed when they heard screaming. Reaching the lower level of the house, they observed defendant repeatedly stabbing Sylvia with a large knife from the kitchen butchers block. The older daughter yelled for her father to stop and told her mother to run.
As the younger daughter, Julia, and Sylvia attempted to flee, defendant stabbed Julia in the back. The older daughter then arrived and attempted to subdue defendant, but to no avail. During the scuffle between defendant and the older daughter, she momentarily forced him to drop the knife, but he regained it.
At some point the older daughter was able to jump onto defendant's back, and defendant also tried to stab her. Although he was unsuccessful in stabbing her, he did hit her with the side of his hand.
Defendant then resumed stabbing and kicking Julia, while Sylvia and the two daughters fled to the house of Michael Steinman, a neighbor. At the time of the trial, Steinman was a seventeen-year veteran of the Egg Harbor Police Department. The son was apparently left in the home.
Officer Steinman testified that Sylvia banged on the door of his home at approximately 5:45 a.m. that day. She was hysterical and dripping with blood. She reportedly told Steinman that "[m]y husband went crazy with the knife." Steinman called the police and requested that a patrol car be sent to his home. Thereafter, Steinman and several other police officers approached the Cordoba residence, joining Lieutenant Robert Fisher and Officers Heather Stumpf, Joseph Bonsall, John Lee and Alekhine Pahang, who were already present at the scene.
Officer Lee observed defendant through the glass on the front door. He saw that defendant was smiling and was refusing to let police inside. Officers Steinman, Pahang, and Stumpf then attempted entry through the rear of the home. Defendant appeared at the back door. Despite the officers' repeated requests to let them in, defendant merely smirked at them. Defendant then retreated to another room.
Once inside the home, Officer Steinman observed Julia, motionless and bloody, lying in the living room. She had multiple stab wounds, lacerations, burns, fractures, and blunt force injuries. The injuries to her were particularly gruesome, and we need not describe them in further detail. Julia was pronounced dead at the scene.
Defendant, meanwhile, was still in the back room to which he had retreated. He continued to be non-compliant with officers, who were trying to discern whether he was holding a weapon. Lieutenant Fisher believed that defendant was a threat, was being intentionally disobedient, and was trying to taunt the officers. Officer Bonsall, similarly believed that defendant intended to harm the officers and that defendant understood their commands. It was not until police applied pepper spray and defendant used his hands to cover his face that the officers were able to subdue and handcuff him. Defendant was escorted outside and read Miranda*fn2 warnings, which he acknowledged.
Officer Bonsall interviewed Sylvia at the scene. Sylvia was unsure why defendant had attacked her, but said he was epileptic and had a history of violence. The previous evening, September 14, defendant had not slept well, had paced, and had claimed he was hearing and smelling things. That morning, when Sylvia first went downstairs to make breakfast, defendant followed her. He inquired where Julia was and then started to admire the kitchen knives while asking about a knife demonstration at the karate tournament the previous day. According to Sylvia, she observed a "change" in defendant's demeanor, and began to back away from him. Defendant pulled a knife from the butchers block and told her that, "'he was going to give [her] something to remember him by or something like that.'" He then attacked Sylvia with the knife. Sylvia had multiple stab wounds, which required surgery. A bent and bloody knife was ultimately recovered from a butchers block in the kitchen.
According to Officer Stumpf, defendant had been calm when he was read the Miranda warnings and placed inside her patrol car. However, as Stumpf transported defendant to the police station, he began to scream, swear, kick, and spit. He screamed "[f]ucking cops," and indicated that he was going to kick out the window of Stumpf's patrol car.
When they arrived at the police station, defendant was calm until he was asked to remove his shoes during a routine contraband check. At that point, Officer Charles Davenport observed that defendant appeared to be agitated and angry. Defendant feigned removing his shoes and instead kicked Davenport in the leg. Davenport believed the kick was intentional. Stumpf again used pepper spray to subdue defendant, and he laughed at her. Defendant was placed in a cell where he paced, smiled, mumbled, laughed, and glared at Stumpf until her shift ended.
A short time later, Detective Michael Hughes entered defendant's holding cell, in an attempt to bring him to an interview room. Detective Hughes observed defendant pacing in his cell. Defendant said to Hughes, "I know all you guys," and then proceeded to ask how his mother-in-law was doing. When Hughes replied that he did not know anything about defendant's mother-in-law, defendant said that he had hit his mother-in-law and that he "did a good thing tonight." Defendant refused to leave his cell, so Hughes left.
Hughes returned with Investigators Michael Mattioli and Joseph McFadden. Both investigators identified themselves. Mattioli perceived that defendant understood what they were saying to him. However, when McFadden entered defendant's cell to speak with him, defendant kicked him in the groin. Defendant had been able to distract McFadden by claiming that officers outside the holding cell were laughing at defendant, a remark which had caused McFadden to turn around.
Later that same day, Lieutenant James Druding took defendant to a hospital to confirm that he was not injured. Defendant did not respond to any of the hospital physician's questions. Afterwards, when defendant was being transported to the Atlantic County Justice facility, he kept repeating "[t]his is bullshit. They took my money. This is bullshit."
Christopher Heacock, a part-time police dispatcher, testified that a 9-1-1 call was placed from defendant's residence on the date of the September 15, 2003 episode. The caller breathed heavily, said a few nonsensical phrases, and then hung up.
Hydow Park, the county medical examiner, performed the autopsy on Julia. Dr. Park determined that she was cut with a knife and suffered burns. He also noted the presence of several defensive wounds. In Dr. Park's opinion, Julia died as a result of being beaten and stabbed.
B. The Daughters' Testimony
The daughters each testified about the defendant's history of seizures. The younger daughter recalled seeing her father have more than fifty seizures. The older daughter stated that she had observed probably more than thirty seizures. When having a seizure, defendant would typically stop all activity, become tense, and fall to the ground where he would lie without speaking. According to the older daughter, when her father had a seizure, he "would just freeze." His seizures typically lasted approximately five to ten minutes. During a seizure, the family members present would "take care" of defendant and ensure he did not hit his head. For approximately one-half hour after a seizure, defendant occasionally acted "mellow" and "burped," or acted "funky." However, the daughters contended that defendant was never violent towards anyone during a seizure.
The younger daughter believed that defendant was not having a seizure when Sylvia was hit with the cable box in 1998 or when he stabbed Sylvia and Julia in 2003. According to the daughter, when defendant became angry about something, he ordinarily would push Sylvia or knock things over. Similarly, the older daughter testified that defendant's behavior on September 15, 2003 and in April of 1998 was not similar to his behavior during a seizure. During a seizure, he would be unable to walk or use a knife.
The older daughter also noted that defendant sometimes would have disagreements with Julia or argue about her visits when he did not want her to come. Although she stated that defendant never "yelled," the older daughter had observed defendant becoming angry towards Julia in the past. On those occasions he would take out his frustration on family pets or break objects. According to her testimony, when defendant was angry, he "[s]ometimes  would get physical with certain things." Beyond that, however, the younger daughter testified that she had never seen him act violently toward Julia.
C. Evidence Related to Defendant's April 1998 Assault on Sylvia
The defense offered additional testimony regarding defendant's prior assault of Sylvia in 1998. Because Sylvia died prior to the trial, relevant portions of her grand jury testimony were read aloud by defense counsel to the jury. Among other things, Sylvia had testified that on the night before the April 1998 assault, defendant was acting abnormally, did not sleep well, and later told the children he was leaving. After Sylvia calmed him down, he went to bed. However, according to Sylvia, a few moments later, defendant jumped up and attacked her by trying to gouge out her eye. Sylvia and her children escaped the house and ran to a neighbor's home for assistance. When questioned before the grand jury, Sylvia claimed that she had told the police on that occasion that defendant had tried to "rip [her] eye out" because he had a seizure.
Sergeant Robert Gray testified that, when notified of the April 1998 incident, he had reported to the home. He observed that Sylvia was upset and had visible injuries, including abrasions on her arms and legs. Her eye was swollen. She reported to Sergeant Gray that her husband was "very agitated" because they had been arguing about the writing of their wills. Sylvia told the officer that when she attempted to go back to bed, defendant attacked her, threw her across the bedroom, tossed her into the entertainment unit, knocked the television on the floor, and then attempted to injure one of her eyes with his finger.
After interviewing Sylvia, Sergeant Gray entered defendant's residence and examined the bedroom. The room was disheveled, and the television was on the floor. Defendant was not taken to the hospital because he appeared to be in good health. At the police station, defendant refused to be fingerprinted and was uncooperative. However, nothing about defendant's demeanor at the police station caused Gray to believe defendant needed medical attention.
Dana Litke of the Prosecutor's Office testified that, although defendant was indicted for second-degree and third-degree aggravated assault after the 1998 attack, Sylvia had requested that the charges be dropped. Specifically, Sylvia had stated that the children were upset, that defendant was a good father, and that she did not want him removed from the home. As a result of her input, a "significant downgrade" was provided, allowing defendant to plead guilty to simple assault.
D. Defendant's Lay Witnesses
During defendant's case, in an effort to show his client's history of unusual behavior, defense counsel called several police officers. The officers described, among other things, the police report substantiating the April 1998 incident between Sylvia and defendant.
In support of defendant's claim that he had struck the older daughter in self-defense in 2003, defendant questioned Charles DeFebbo of the Prosecutor's Office about a photograph taken of the crime scene. The photograph showed that defendant's back had a two-inch abrasion.
E. Testimony of Defense Expert, Dr. Samuel
The defense presented testimony at trial from psychiatrist Stephen Samuel, M.D., an expert in neuropsychology and the treatment of seizure disorders. Dr. Samuel evaluated defendant three times in June and July of 2004. He issued expert reports in September 2004 and October 2004.*fn3
Dr. Samuel testified that he had reviewed records that reflected that defendant had been discharged from the military in Argentina due to a seizure disorder. Defendant had an abnormal electroencephalogram ("EEG"), which indicated the possible presence of a seizure disorder. Dr. Samuel also reviewed records from 1998 by Dr. Steven Mandel, Dr. Gary Glass, and Dr. Scott Tzorfas, all of whom had previously examined defendant.
When Dr. Samuel examined defendant, he performed several neurological tests. He ascertained that defendant's I.Q. was in the borderline range. According to Dr. Samuel, defendant suffered from anxiety and depression. Dr. Samuel also related that as a result of his mental disorder, defendant perceived aggression in exchanges with other people that were actually neutral.
Additionally, Dr. Samuel explained that a seizure could last up to six hours and that after a seizure, an individual could be confused, incoherent, and psychotic due to a detachment from reality. The records that Dr. Samuel reviewed reflected that at the time of incident in 1998, defendant was acting strangely, tried to jump out of a two-story window, had tremendous strength, and assaulted his wife. According to Dr. Samuel, Dr. Glass had believed that the 1998 assault was due to a seizure and was unintentional, and that defendant did not understand at the time that he was doing anything wrong.*fn4
Dr. Samuel noted that, in the weeks preceding the stabbing in 2003, defendant's treating physician had requested that defendant take a smaller dosage of his seizure medicine. In addition, prior to the 2003 attacks, defendant had smelled odors that did not exist, saw colors that were not present, and found that food tasted strange. Dr. Samuel explained in this regard that people with seizure disorders can have olfactory hallucinations. Dr. ...