December 19, 2018
May 22, 2019
appeal from Superior Court of New Jersey, Law Division, Union
County, Indictment No. 11-07-0761.
Carter Pierce, Designated Counsel, argued the cause for
appellant (Joseph E. Krakora, Public Defender, attorney;
Robert Carter Pierce, on the brief).
Michele C. Buckley, Special Deputy Attorney General/Acting
Assistant Prosecutor, argued the cause for respondent
(Jennifer Davenport, Acting Union County Prosecutor,
attorney; Michele C. Buckley, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
Judges Alvarez, Reisner, and Mawla.
wielding a tomahawk and knife, defendant Morgan Mesz gravely
injured two women and brutally attacked the neighbor who came
to their rescue. At trial, defendant advanced the theory that
during the 6:00 a.m. January 7, 2011 incident, he was under
the influence of then-legal synthetic marijuana to the extent
that he was pathologically intoxicated and his use of the
drug triggered a rare substance-induced psychosis. N.J.S.A.
2C:2-8(e)(3) defines "pathologically intoxicated"
as "intoxication grossly excessive in degree, given the
amount of the intoxicant, to which the actor does not know he
is susceptible." The State's psychopharmacology
forensic expert videotaped his May 2013 four-hour interview
with defendant. The prosecutor at trial, while examining the
expert on direct, played portions of the interview to the
jury, and argued in summation that the information defendant
relayed was substantive evidence contrary to the defense
theory. In the absence of a limiting instruction, we reverse.
was convicted of two counts of attempted murder, N.J.S.A.
2C:5-1 and 2C:11-3 (counts one and two); the lesser-included
charge of third- degree aggravated assault, N.J.S.A.
2C:12-1(b)(2) (count three); unlawful possession of a weapon,
N.J.S.A. 2C:39-5(d) (count four); and possession of a weapon
for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count five). He
was sentenced to two consecutive sixteen-year prison terms,
subject to the No Early Release Act's (NERA) eighty-five
percent parole ineligibility, N.J.S.A. 2C:43-7.2, on the
attempted murder counts. The judge imposed a NERA consecutive
four-year term of incarceration for the third-degree
aggravated assault charge. The weapons offenses were merged
into the attempted murder convictions. Defendant's
sentence thus aggregated to thirty-six years imprisonment.
defendant was arrested at the scene, he said that he was
described in the Bible and had to kill the women to protect
the children of Newark. After treatment for minor injuries at
a nearby hospital, he was taken to the Ann Klein Forensic
Center for evaluation.
trial, the hospital committing psychiatrist testified that
defendant was suffering from active paranoid delusions when
brought in that morning. She could not determine if the cause
was schizophrenia, substances, or a combination of both. She
said that defendant was then suffering from "psychosis
not otherwise specified, . . . rule out schizophrenia, rule
out substance-induced psychotic disorder[.]" On
cross-examination, the prosecutor asked the doctor if she
would rule out the synthetic marijuana induced part of the
diagnosis, to which she responded in the affirmative.
cross-examination, defendant's expert psychiatrist
clarified that by using the term "rule out," the
committing physician did not mean to imply that she had
eliminated substance abuse as a possible trigger for the
psychosis. She meant only that it needed to be further
investigated before a diagnosis could be made with
certainty-before it could be "ruled out."
psychiatric expert opined that at the time of the offense,
defendant suffered from a substance-induced psychotic
disorder and could not differentiate between right and wrong.
His opinion did not vary, even after being confronted in
cross-examination with bizarre incidents in defendant's
past that suggested a significant prior mental health
State called its forensic expert on rebuttal. Defense
counsel's only objection to the tape being played during
his examination focused on the expert's credentials,
namely, that he was not a licensed psychologist. No
Miranda warnings were given prior to the session.
psychopharmacologist testified that the "acute
phase" effects of synthetic marijuana manifest between
two to four hours after ingestion. The expert opined that if
defendant had smoked between 6:00 and 8:00 p.m. the prior
evening, he would not have been under the influence of the
acute effects of the synthetic marijuana by 6:00 a.m. the
following morning. He found no records indicating that the
drug had induced aggressive behavior in a database including
some 13, 000 users. The expert further opined that persons
with preexisting mental health conditions might suffer from
hallucinations, usually auditory, but that even when those
occurred, they only resulted in self-harm.
the interview, defendant told the State's expert he had
been smoking "a lot" of synthetic marijuana the
month prior to the incident. He said he became addicted to
the substance, to the extent he was chain smoking it in
also said the last time he smoked prior to the January 7,
2011 incident was before leaving his home at approximately
7:00 or 8:00 p.m. on January 6. Afterwards, he bleached his
fingers and his lips, kissed his girlfriend goodbye, and
"smashed the pipe." That day he had smoked as many
as fifteen to twenty blunts, and fifteen to twenty that
prosecutor also played defendant's description,
approximately six minutes of the interview, of his assault of
the victims' neighbor, and the police arrival at the
scene. When they arrived, defendant claimed he and the
neighbor walked calmly towards police from where they had
been sitting talking amicably in the snow.
psychopharmacologist was extensively cross-examined about
articles and statistical data regarding aggressive behaviors
in synthetic marijuana users and the duration period of
psychosis-like symptoms brought on by the use of the drug.
The State objected to the questioning on the basis that the
cross-examination was straying into the area of mental
defects and illnesses, reminding the court that defendant had
twice denied on the record that he intended to present an
summation, the prosecutor again played portions of the
interview to the jury, including defendant's description
of the drug quantities he had been consuming and the fact he
became addicted. After doing so, the prosecutor argued that
defendant's reaction to using the drug on the morning in
question was not a grossly excessive response, only the
result of his mental illness, and therefore did not satisfy
the requisite elements of pathological intoxication.
playing several more minutes of the audio, the prosecutor
directed the jury's attention to defendant's recorded
description of an incident at a family holiday party days
before the attack. At the party, defendant reported that he
saw a five-year-old boy who to him looked like a leprechaun,
and whom he planned to "yoke up." From this, the