July 11, 2013
STATE OF NEW JERSEY, Plaintiff-Appellant,
ANTHONY ONUNU, Defendant-Respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 after [he] had an opportunity to examine the expert."
Kokumo, who is originally from Nigeria but has lived in the United States since 1969, testified as to his educational and professional background. At the time of the hearing, he was "the coordinator for the social sciences" and an instructor at the College of New Rochelle. He also taught part-time at Touro College for twenty years, and had previously taught at several other American colleges and universities. Kokumo acknowledged currently teaching a course, "Immigrant Experience in America, " that "include[d] experiences that translate from immigrants . . . all around the world and how their culture translates in America[.]"
Kokumo also stated that his "primary areas of research" were "African studies, comparative politics, [and] Nigerian politics." Kokumo had been asked to testify as "an African studies or African culture or African politics expert" twice before, in both instances regarding the Yoruba tribe, to which he belonged. He never conducted any "ethnographic studies independently" but was familiar with others' studies, which he used in his teaching. He had never written anything about the Ivory Coast, and he acknowledged, at one point, never having read or studied "the experience of the people from the Ivory Coast within the American Experience[.]" At another point, Kokumo stated that he had the "opportunity . . . to apply" the experience of "Cote d'Ivoire people" in Africa to the "American experience" through his teaching.
During cross-examination about his report, the following exchange occurred:
[Prosecutor:] What report did you believe you were supposed to write?
[Kokumo:] A report as an expert in African studies that I'm very familiar, because of my many years of teaching and exposure to African politics and culture to write a report regarding the rivalry and the relationship between Anglophone-Africans and Francophone-Africans with specific reference to . . . Ivory Coast and Nigeria.
Q. Well, you're indicating that these people from Africa, when they come here, they continue this hostility towards each other and they just can't get along, all right?
A. No, I didn't say that.
Q. Well, then what are you saying?
A. I had Anglophone and Francophone students in my classes, everywhere I have taught. And always . . . whenever we are comparing the French paternalistic assimilation and its policy, that made an average black French man . . . aspire to be . . . like French people, the Anglos resent that. . . . I see some o[f] my students arguing . . . very[, ] very passionately, over the issue of French paternalism because they find it to be humiliating . . . .
. . . [I]n my Intro to African Policies class, they always debate passionately over the issue of loyalism and colonialism, the French colonialism compared to British colonialism.
Q. But . . . debating and getting along are two different things. You would agree that people from Nigeria and the Ivory Coast, they in fact do get along in this country, correct?
A. Yes, they do.
I wouldn't dispute that. They don't fight each time they see each other.
But that doesn't mean that . . . Anglophone Africa and Francophone Africa don't really get along when it comes to politics.
Kokumo acknowledged that, in his report, "the information regarding the hostilities between Anglophone and Francophone Africans and their political system[s] relates back to Africa."
Kokumo was questioned about his publications, the last of which was dated 1983, and the public lectures, the last of which was dated 1992, that appeared on his curriculum vitae (CV). Neither the titles of the publications nor those of the public lectures indicate they had anything to do with the African immigrant experience in the United States. Kokumo indicated that he also published articles in 2008 and 2009 on "Nigerian ethnic politics." Kokumo further stated that he had presented two public lectures since 1992, one of which was "on the African immigrant experience in [the] United States." He acknowledged that the "information for [his] lectures and publications" were obtained from "[o]ther publications and [his] observations of things."
The following colloquy occurred between the prosecutor and Kokumo:
Q. In your report, . . . you indicated that people from Anglophone cultures and Francophone cultures don't get along due to their political systems. . . . [A]m I misphrasing?
A. No, I wouldn't say that. I haven't said that.
When asked again to explain the conflict, Kokumo gave a lengthy answer involving the assimilation of Francophone Africans into the political life of France, the lack of such assimilation of Anglophone Africans into the political life of Britain, and the resentment Anglophone Africans had for the desire of Francophone Africans to be French.
Over the State's objections, the judge qualified Kokumo as an expert witness, stating:
[T]he Court does find that the witness meets the qualifications as set forth under New Jersey Rules of Evidence 702 and 703 . . ., [and] finds again, that tensions between Francophones and Anglophones is a subject matter beyond the ken of the average juror.
The Court finds that as per 703 and the testimony that's been rendered by this expert, that this expert's opinion is based upon the data and facts customarily relied upon by cultural anthropologists; to wit; he's testified . . . of a body of work that he's used in his work as a professor of African studies, as a professor of immigration issues in the United States from the universities that he's worked with.
The Court finds that the expert has testified that he has the requisite experience and training and educational background.
Again, any deficiencies that the State has raised, the Court finds as ground for cross-examination, go to weight, not to qualifications.
The State contends that the judge abused her discretion in qualifying Kokumo as an expert witness because there was nothing in discovery indicating defendant "had an honest belief in the necessity to use any force . . . against the victim, " and because Kokumo failed to demonstrate "the reliability of his theory that the cultural dispute among West African residents in the United States remains and such is generally accepted in the scientific community and in courts." The State also contends that Kokumo's opinions "usurp[ed] the jury's role."
We set some guideposts for our review. "'[F]ew rights are more fundamental than that of an accused to present witnesses in his own defense.'" State v. Rosales, 202 N.J. 549, 561 (2010) (quoting State v. Sanchez, 143 N.J. 273, 290 (1996)). However, "a defendant's right to present a defense is not absolute" and does not include "'an unfettered right to offer [evidence] that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence.'" State v. Jenewicz, 193 N.J. 440, 451 (2008) (quoting Montana v. Egelhoff, 518 U.S. 37, 42, 116 S.Ct. 2013, 2017, 135 L.Ed.2d 361, 367 (1996) (citation omitted)) (alteration in original). In this regard, "[a] court's witness-qualification decision is subject to essentially an abuse-of-discretion standard of review and will only be reversed for 'manifest error and injustice.'" Id. at 455 (quoting State v. Torres, 183 N.J. 554, 572, 579 (2005) (citation omitted)).
The Court has said:
Rule 702, which governs the admissibility of expert testimony . . . provides that "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise." It is incumbent on the proffering party to show that (1) the intended testimony concerns a subject matter beyond the ken of an average juror; (2) the field is at a state of the art such that an expert's testimony would be reliable; and (3) the witness has expertise sufficient to offer the intended testimony.
[State v. Reeds, 197 N.J. 280, 290 (2009) (citing Jenewicz, supra, 193 N.J. at 454).]
"Those requirements are construed liberally in light of Rule 702's tilt in favor of the admissibility of expert testimony." Jenewicz, supra, 193 N.J. at 454 (citing State v. Berry, 140 N.J. 280, 290-93 (1995)). But, "to be admissible, expert testimony should relate to a relevant subject that is beyond the understanding of the average person of ordinary experience, education, and knowledge." State v. Sowell, 213 N.J. 89, 99 (2013) (citation and quotation marks omitted) (alterations in original) (emphasis added).
In this case, defendant offered expert testimony in support of his claim that he acted in self-defense. "When deadly force is used, the justification of self-defense exculpates a defendant when he 'reasonably believes that such force is necessary to protect himself against death or serious bodily harm.'" Jenewicz, supra, 193 N.J. at 450 (quoting N.J.S.A. 2C:3-4(b)(2)). "A self-defense claim therefore requires a jury (1) to discern whether the defendant had a subjective belief at the time that deadly force was necessary and then (2) to determine whether that subjective belief was objectively reasonable." Ibid. (citation omitted). We, therefore, acknowledge that expert testimony may be relevant and admissible to support a defendant's claim of self-defense. See, e.g., State v. Kelly, 97 N.J. 178, 202 (1984) (recognizing that expert testimony regarding battered-woman's syndrome was relevant to demonstrate the defendant's state of mind, i.e., whether "she honestly believed she was in imminent danger of death").
We reject the State's contention that Kokumo cannot testify as an expert witness because the record lacked factual support for defendant's honest belief that he was in imminent danger, thus justifying his use of deadly force. Frequently, but not always, such evidence must abide defendant's testimony. See, e.g., Jenewicz, supra, 193 N.J. at 451 (noting the defendant's testimony is "[a]n obvious, ready source of direct evidence about state of mind"). In any event, whether an adequate factual predicate for Kokumo's opinions exists is an objection properly made at trial, not following a Rule 104 hearing.
We do agree with the State, however, that the issue in this case is whether the proffered expert testimony tended to prove that historic animosities between Anglophone and Francophone Africans have been carried to America by immigrants from their countries, whether such evidence is reliable and whether Kokumo is qualified to testify about it. Indeed, during argument at the 104 hearing, defense counsel summarized the proffered evidence in similar terms:
The Anglophone, Francophone and the conflict that was exported from the continent in those various West African countries to the U.S., to Essex County, to East Orange, is what is at issue for [the reasonableness of defendant's actions].
. . . And whether or not the conflicts that have taken place in Africa . . . impacted this situation, this community, and therefore, [defendant's] experience on the day in question with having a perception that he was in grave danger, because he knew that he was in the middle of a conflict, albeit in East Orange, that went back to what historical and traditional conflicts there were in West Africa.
That's what this expert is here to shed light upon. And I submit that he would be a tremendous assistance to the jury in that regard.
Whether Anglophone Africans resent Francophone Africans because the latter tried to assimilate into French life during colonial and post-colonial times is irrelevant to defendant's self-defense claim. Evidence of historic West African rivalries only becomes relevant if competent expert testimony demonstrates these animosities were transported to America and maintained by immigrant communities in this country.
The proponent of expert testimony "must . . . meet the requirement that the field of inquiry is generally accepted such that an expert's testimony would be sufficiently reliable." State v. Rosales, 202 N.J. 549, 564 (2010). "[R]eliability of an area of research or expertise" may be established "in one of three ways: (1) the testimony of knowledgeable experts, (2) authoritative scientific literature that reveals a consensus of acceptance[, ] or (3) judicial decisions that [acknowledge] that particular evidence or testimony is generally accepted in the scientific community." Ibid. (citation and quotation marks omitted) (alterations in original).
While we do not doubt Kokumo's expertise in the field of African ethnic and cultural rivalries, we question whether he was a "knowledgeable expert" regarding their emigration to America. Kokumo had conducted no research on the issue himself, and, as noted, his areas of expertise were admittedly "African studies, comparative politics, [and] Nigerian politics."
Moreover, as noted above, Kokumo's testimony seemingly belied the existence of such deep-seated animosity between Anglophone and Francophone African immigrants in America and there was inadequate support demonstrating a "consensus of acceptance" for such a theory. Kokumo agreed, for example, "that people from Nigeria and the Ivory Coast . . . do get along in" America. He further acknowledged that "the information regarding the hostilities between Anglophone and Francophone Africans and their political system[s]" contained in his report "relates back to Africa, " and, in large part, his opinion was supported by arguments among students in his classes. In his report and in his testimony, Kokumo cited no authoritative literature that demonstrated the emigration of African rivalries to the United States.
To be sure, Kokumo's report concludes by "paraphrasing and emphasizing . . . Akinnaso's summation." He notes that the State's witnesses are Francophone "while all witnesses for the defense are Anglophone . . . ." Kokumo then opines: "This dichotomy, of witnesses splitting into the two spheres of Anglo and Franco colonial and neo-colonial influence obviously demonstrate[s] that the relationship between the two groups is hostile." But, this opinion lacks factual underpinning, as well as support in cited research or academic publications.
An expert's opinion must be based on
facts or data derived from (1) the expert's personal observations, or (2) evidence admitted at the trial, or (3) data relied upon by the expert which is not necessarily admissible in evidence but which is the type of data normally relied upon by experts in forming opinions on the same subject.
[State v. Townsend, 186 N.J. 473, 494 (2006) (quoting Biunno, New Jersey Rules of Evidence 896 (2005)) (internal quotation marks omitted).]
The "net opinion rule . . . forbids the admission into evidence of an expert's conclusions that are not supported by factual evidence or other data." Ibid. (citing Creanga v. Jardal, 185 N.J. 345, 360-62 (2005)). While the facts and data relied upon by an expert witness "need not be admissible in evidence, " N.J.R.E. 703, an expert is required "'to give the why and wherefore of his or her opinion, rather than a mere conclusion.'" Townsend, supra, 186 N.J. at 494 (quoting Rosenberg v. Tavorath, 352
N.J.Super. 385, 401 (App. Div. 2002)). Here, to the extent he actually expressed an opinion about traditional African cultural animosities being transported to America, Kokumo's opinion was purely conclusory and idiosyncratic to this case.
We hasten to add that we do not find fault with the trial judge's conclusion that Kokumo was a qualified expert "in the field of [c]ultural [a]nthropology" under NJRE 702 However that expertise was irrelevant to the asserted defenses for which he was offered as a witness and his opinions regarding traditional African rivalries being maintained by immigrants to America were unreliable
We therefore are compelled to reverse the order under review In doing so we expressly limit our holding to the record presented