NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 21, 2013
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 09-10-2845.
Sara A. Friedman, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for appellant (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Ms. Friedman, of counsel and on the brief).
Wanda M. Akin argued the cause for respondent (Wanda M. Akin & Associates, attorneys; Ms. Akin, on the brief).
Before Messano, Lihotz and Ostrer, Judges
By leave granted, the State of New Jersey (State) appeals from the November 16, 2012 order that denied the State's motion in limine to bar the testimony of Ishola O. Kokumo, Ph.D., a proposed defense expert. The order specifically provides that Kokumo "shall be deemed a qualified expert in the field of Cultural Anthropology meeting the requirements of [N.J.R.E.] 702 and [N.J.R.E.] 703." Having considered the arguments raised on appeal in light of the record and applicable legal standards, for the specific and limited reasons set forth below, we reverse.
The Essex County grand jury returned an indictment charging defendant Anthony Onunu with second-degree aggravated assault, N.J.S.A. 2C:12-1b(1); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d; and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d. Defendant advised the State of his intention to assert the affirmative defenses of self-defense and defense of others. See N.J.S.A. 2C:3-4 and -5.
Thereafter, defendant served notice of his intention to call an expert witness, Dr. Niyi Akinnaso, a cultural anthropologist and professor at Temple University. Defendant also served Akinnaso's preliminary and final report. A trial date was set, and the judge provided each side with a briefing schedule, apparently occasioned by the State's objection to Akinnaso's report and proposed testimony. The State subsequently requested, and the judge granted, a N.J.R.E. 104 hearing.
Nearly one year later, defendant notified the State of his intention to replace Akinnaso, who was in failing health, with Kokumo, a professor at the College of New Rochelle. Defendant served Kokumo's supplementary report. The judge then granted the State's request to conduct a N.J.R.E. 104 hearing with Kokumo.
Before turning to Kokumo's testimony at the hearing, we set forth the alleged facts supporting the indictment and defendant's asserted defenses. When possible we cite to the available record, including portions of the grand jury testimony; otherwise, we rely upon the contentions of the parties, recognizing that the factual allegations are obviously disputed.
During the early morning hours of July 18, 2009, Sylvaine Dienhoue arrived at Baguissa Restaurant, a West African restaurant and bar in East Orange. Defendant asserts, without reference to the record, that the restaurant is owned by, and frequented by, Francophone Africans, and that Dienhoue is "a Francophone from the Ivory Coast."
Defendant is Nigerian by birth, and, during the Rule 104 hearing, the State asserted, without contradiction, that he has lived in the United States for twenty years. John Afake, defendant's friend, was also at the restaurant. Defendant became involved in a fight in the parking lot outside of the restaurant. According to some witnesses, after the fight ended defendant got into his car and drove "recklessly in the parking lot, " ultimately striking the rear of Dienhoue's car. Dienhoue and defendant began to argue and soon a fight broke out between them. Defendant went back to his car, retrieved a knife and stabbed Dienhoue. Dienhoue testified that he had "never seen [defendant] before in [his] life."
It is alleged that Sekou Ouattara, a friend of Dienhoue who recounted much of the incident before the grand jury, is French-speaking. In a statement he provided to police, Ouattara admitted seeing defendant "from time to time at the restaurant, the last time [being] a week ago."
Afake's testimony before the grand jury painted a different picture. Afake claimed that he assisted defendant, who was under attack by a group of people. Afake further testified that defendant's car "was being bashed, " "[t]here were people on his roof" and "somebody was throwing chairs at him."
Defendant's brief proffers additional facts, albeit, none are in the record before us, nor were they established by any evidence introduced before the trial judge. Defendant claims he and Afake were at Baguissa's a week before July 18, 2009, and they became involved in an incident with Ouattara, who complained to the restaurant owner that Afake was playing loud "Highlife" music. Ouattara confronted Afake, telling him and defendant that the restaurant was "our spot."
In his report, Kokumo stated that he "completely adopt[ed] . . . Akinnaso's expert opinion." The following reflected Kokumo's ultimate conclusion:
I am of the opinion within a reasonable degree of professional, academic, scientific certainty that [defendant's] perceptions of the fights, the imminent and clear fear for his life and his attempts to escape were reasonable, based on his distinct knowledge and understanding of the historical, political, economical and cultural differences between himself, an Anglophone, and his attackers of Francophone decent.
Before the evidentiary hearing began, the State asked for a continuance, arguing that defendants' expert reports did not meet the minimum requirements of N.J.R.E. 702 and 703 and were "net opinion[s]." The judge denied the State's request as "premature, " reasoning the prosecutor's objections would "be better made ...