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State v. Mesz

Superior Court of New Jersey, Appellate Division

June 5, 2019

STATE OF NEW JERSEY, Plaintiff-Respondent,
MORGAN G. MESZ, Defendant-Appellant.

          Argued December 19, 2018

         Reargued May 22, 2019

          On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 11-07-0761.

          Robert 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.

          Before Judges Alvarez, Reisner, and Mawla.


          ALVAREZ, P.J.A.D.

         While 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[1] 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.

         Defendant 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.

         When 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.

         At 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.

         On 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."

         Defendant's 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 history.

         The 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[2] warnings were given prior to the session.

         The 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.

         During 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 blunts.[3]

         Defendant 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 night.

         The 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.

         The 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 insanity defense.

         In 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.

         After 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."[4] From this, the prosecutor ...

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