NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 9, 2013
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 08-12-1967.
Joseph E. Krakora, Public Defender, attorney for appellant (Stephen W. Kirsch, Assistant Deputy Public Defender, of counsel and on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Paul Salvatoriello, Deputy Attorney General, of counsel and on the brief).
Before Judges Hayden and Hoffman.
Defendant Russell M. Stewart appeals from his March 29, 2011 judgment of conviction and sentence. On December 21, 2010, a Bergen County Grand Jury charged defendant with second-degree disarming a law enforcement officer, N.J.S.A. 2C:12-11(a) (count one); third-degree aggravated assault upon a law enforcement officer, N.J.S.A. 2C:12-1b(5) (count two); and two counts of third-degree aggravated assault with a deadly weapon, N.J.S.A. 2C:12-1b(2) (counts three and four). A jury convicted defendant of counts one and two and acquitted him of the remaining counts. For the reasons that follow, we affirm the conviction but remand for resentencing.
The indictment arose from events that occurred on the evening of September 11, 2008, when defendant rear-ended two different cars, a block apart, totaling his car. When a police officer arrived at the scene of the second collision, defendant initially refused to cooperate and then grabbed the butt of the officer's holstered gun. A struggle ensued, with defendant tugging on the gun, until the officer subdued defendant by striking him in the head with a flashlight. Defendant claimed that he was a recovering alcoholic who had been binging on marijuana earlier that day and that evening.
Before trial, defendant provided the State with an expert report from a psychiatrist, Dr. Robert Chalemian, who claimed that by ingesting a large quantity of marijuana, defendant had induced three disorders listed in the Diagnostic and Statistical Manual of Mental Disorders (DSM): Cannabis Intoxication Delirium; Cannabis-Induced Psychotic Disorder with Delusions; and Escalating Addiction to Marijuana. Because of these mental disorders, Dr. Chalemian claimed that defendant lacked the mental capacity "to exercise purposeful and knowing behaviors, " "to behave voluntarily, " and "to give evidence of a culpable mental state."
The principal issue on this appeal concerns the pretrial ruling that precluded defendant from offering the testimony of Dr. Chalemian that defendant suffered from a mental disease or defect. The judge concluded that the essence of Dr. Chalemian's opinion, as set forth in his twelve-page report, was an unsupported net opinion. Accordingly, finding that "[t]he record does not support any mental disease or defect of any kind, " the judge barred Dr. Chalemian's diagnosis of Cannabis-Induced Psychotic Disorder because it would confuse the jury. See N.J.R.E. 403. She also found that the expert's report was a net opinion and that the evidence did not support the symptoms described in the DSM as demonstrating the cited disorders.
The judge did indicate that Dr. Chalemian could testify regarding the defense of intoxication and that the jury should be charged regarding that defense. See N.J.S.A. 2C:2-8. Defendant chose not to present the testimony of Dr. Chalemian on that issue.
At trial, defendant testified that he was an alcoholic and had stopped drinking in 2001; however, in January 2008, he started smoking marijuana, and by September 2008, he was smoking marijuana daily. He said that on September 11, 2011, he stayed home from work because he was "very despondent, very depressed." While home, he said he smoked "a lot" of marijuana, which he estimated at "[a]n eighth to a quarter of an ounce[.]" He said he was smoking marijuana in his car at the time he rear-ended the first car
[a]nd that's when — I just can't describe it anything but I lost any sense of reality. I mean, I just — I decided I had to get out of there right away. And hit the — I don't remember hitting the horn, but I hit the accelerator to try and push the car out of my way, because I wanted to leave. I was scared. Like I said, I was — I don't have the — the words ...