NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 4, 2013
On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 11-04-763.
Marlene Lynch Ford, Ocean County Prosecutor, attorney for appellant (Samuel Marzarella, Supervising Assistant prosecutor, of counsel and on the brief; William Kyle Meighan, on the brief).
Joseph E. Krakora, Public Defender, attorney for respondent (Dawn Marie Nee, Deputy Public Defender, on the brief).
Before Judges Graves and Ashrafi.
Defendant Matthias M. Kabete faces trial on second- and third-degree sexual contact and sexual assault charges, allegedly committed shortly before he graduated from high school. The incident occurred when a group of teenagers rented rooms at a Jersey shore motel after their high school prom and some of them got drunk.
The Supreme Court ordered that we hear and decide the State's interlocutory appeal from orders of the trial court reserving final decision on whether defense expert testimony would be admissible at the trial to show that defendant Kabete's intoxication negated purposeful or knowing conduct. The State also objects to the trial court permitting the defense expert to supplement his report.
We are hindered in our recital of details about the case because neither party thought it appropriate to provide the expert's report or witness statements as part of the record on appeal. Rather, both parties rely on the testimony of the expert at a lengthy pretrial hearing to determine whether his opinions are admissible evidence. We have reviewed that testimony and conclude that the trial court did not abuse its discretion in requiring additional scientific or specialized evidence to support the expert's opinion, or, on the other hand, in allowing the defense additional time to produce that evidence in a supplemental report. We affirm the trial court's orders.
In April 2011, defendant was indicted on three charges: third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3; second-degree attempted sexual assault, N.J.S.A. 2C:5-1 and 2C:14-2; and second-degree attempted aggravated sexual assault, N.J.S.A. 2C:5-1 and 2C:14-2.
The alleged crimes occurred at a Seaside Heights motel in the early morning hours of June 5, 2010. After their high school prom, defendant and some schoolmates, both male and female, rented motel rooms and arranged for alcoholic beverages to be available. The female victim of the alleged sexual offenses, who was about the same age as defendant, began drinking soon after arriving at the motel near 2:30 a.m. At some point before daylight, she passed out. Two friends, a boy and a girl, helped her to one of the beds in a room, and she slept. Defendant was staying in the same room, and he was drinking, too. The two friends tried to get defendant to lie on the other bed, but defendant kept getting up. The supervising friends eventually fell asleep.
When the female friend awoke, she saw defendant on top of the victim. His pants were around his ankles, and the victim was naked below the waist. Defendant was making thrusting motions, which the friend took to be sexual intercourse. The male friend woke up and pushed defendant off the victim. He brought defendant into the bathroom and noticed that defendant had an erection. The victim did not wake up, and she never had any memory of the alleged assault.
Schoolmates staying in other rooms in the motel learned of the incident, and one of them punched defendant and gave him a black eye. Defendant was driven home by the male friend who had been in the room. Defendant was repeatedly apologizing and asking the friend what happened. Annoyed, the friend urged him to sleep in the backseat, and defendant slept during most of the two-hour ride to his home. At his home, the friend had to pull defendant out of the car, and he had trouble standing and walking.
Defendant is a Nigerian national, and his mother is a Methodist pastor. According to the mother, the family's code of morality prohibits alcohol and drug use and discourages premarital sex. At his home that morning, defendant's mother and brother smelled alcohol on him, saw his black eye, and had to help him physically to walk to his room. Defendant was very apologetic. He was crying and said he did not remember what had happened at the motel.
Later on the date of the incident, one of defendant's friends phoned him after hearing rumors. According to this witness, defendant told him that he saw the victim lying on the bed, and that he kissed her, but that he could not remember if she kissed him back. The friend told defendant incorrectly that medical testing of the victim had confirmed sexual intercourse, and defendant responded, vaguely, with an expletive remark.
Back in the Seaside Heights motel, when the victim finally awoke, a female friend told her she had been raped. Although the victim sought medical attention immediately, her inability to provide her parents' insurance information delayed evaluation and treatment. She did undergo a sexual assault forensic examination after her parents learned of the assault, but the tests were inconclusive on the issue of whether she had been penetrated. Two days after the incident, the police charged defendant with sexual crimes.
After his indictment some months later, defendant provided to the prosecution a report prepared in January 2012 by Kenneth Weiss, M.D., who was proffered as an expert in psychiatry supporting a defense of intoxication pursuant to N.J.S.A. 2C:2-8. Defense counsel had asked Dr. Weiss to render an opinion on whether defendant's level of intoxication met the standard for a voluntary intoxication defense under the statute. Although the State stipulated that Dr. Weiss is an expert in forensic psychiatry, it moved in limine to bar his testimony, as well as testimony from defendant's mother and brother regarding their observations when defendant arrived home and his statements to them that he did not remember what had occurred.
On the morning of June 5, 2012, with a panel of jurors waiting for jury selection to begin for defendant's trial, the court conducted a lengthy pre-trial hearing pursuant to N.J.R.E. 104(a) and Rule 3:9-1(d) to consider the admissibility of Dr. Weiss's expert opinion testimony. Dr. Weiss was the only witness at the hearing. His direct examination by defense counsel was succinct and to the point. The prosecutor's cross-examination, however, was largely beyond the scope of appropriate cross-examination for the pretrial admissibility issue, and it extended into the afternoon hours.
Dr. Weiss testified that he conducted in-person interviews with defendant and his mother, and he reviewed police reports, witness statements, and notes from telephone interviews of defendant's family members conducted by defense investigators. After reviewing that evidence, Dr. Weiss concluded that "at the time . . . of the alleged sexual assault or sexual contact, [defendant] was intoxicated from alcohol and that he was so intoxicated that his mental faculties were prostrated to the degree that he was incapable of forming the specific intent required for the offense charged."
Dr. Weiss based this conclusion on several factors, including defendant's inexperience with alcohol, his family's moral code regarding alcohol and premarital sex, defendant's appearance and behavior that night and early morning, and defendant's claims that he did not remember parts of what had occurred in the motel room. Defendant told Dr. Weiss he had drunk alcohol on only one previous occasion, at a pre-graduation party, and he had become drunk then and suffered a hangover the next day. He did not like the experience and had determined not to repeat it. But two weeks later, after the prom, he consumed more alcohol than on the previous occasion and was drunk again. Defendant also told Dr. Weiss that drinking alcohol and premarital sex violated the strict moral code of his family and made him ashamed. He reported he had no recollection of events surrounding the alleged sexual assault.
Dr. Weiss conceded he could not pinpoint how much alcohol defendant had consumed, except to say that defendant reported he had drunk "five or six half-cups" of vodka during his only prior drinking experience, and that the amount following the prom was more than that. In addition, there was evidence that defendant also drank beer on the night of the incident. Dr. Weiss acknowledged that no blood alcohol concentration (BAC) test was available to support a determination of defendant's intoxication level, such as in drunk driving prosecutions. In addition to defendant's statements, ...