STATE OF NEW JERSEY v. GEORGE JENEWICZ

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A- 0013-02T40013-02T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GEORGE JENEWICZ,

Defendant-Appellant.

_________________________________

 

Argued November 2, 2005 - Decided August 8, 2006

Before Judges Wefing, Wecker and Fuentes.

On appeal from Superior Court of New

Jersey, Law Division, Middlesex

County, No. 99-01-0031.

Daniel V. Gautieri, Assistant Deputy Public

Defender, argued the cause for appellant

(Yvonne Smith Segars, Public Defender,

attorney; Mr. Gautieri, of counsel and

on the brief).

Nancy A. Hulett, Deputy Attorney General,

argued the cause for respondent (Bruce J.

Kaplan, Middlesex County Prosecutor, attorney;

Ms. Hulett, of counsel and on the brief).

PER CURIAM

Tried to a jury, defendant was convicted of first-degree murder, N.J.S.A. 2C:11-3(a)(1),(2); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); and third-degree hindering apprehension or prosecution, N.J.S.A. 2C:29-3(b). Defendant had been indicted for capital murder but following the penalty phase of the trial, the jury was unable to reach a unanimous verdict. N.J.S.A. 2C:11-3(c)(3)(c). At sentencing, the trial court merged defendant's conviction for possession of a weapon for an unlawful purpose into his conviction for murder and sentenced defendant to life in prison, with a thirty-year period of parole ineligibility. It also sentenced defendant to five years in prison, with a two and one-half year period of parole ineligibility, for the hindering conviction and specified that this be served consecutively, not concurrently. Defendant has appealed. After reviewing the record in light of the contentions advanced on appeal, we affirm defendant's convictions but remand for resentencing.

Defendant admitted shooting the victim, Eunice Gillens, who had been living with him for several months, but asserted he had acted in self-defense when she threatened to shoot him with a rifle. The relationship between defendant and Ms. Gillens can fairly be described as dysfunctional. The two met while both were participating in an out-patient rehabilitation program; both were unsuccessful in their attempts to end their addictions.

Defendant is an alcoholic who had abused alcohol for many years. He had worked as a biological technician at Bristol- Myers Squibb, which several times arranged for him to attend inpatient alcohol rehabilitation programs. After working for Bristol-Myers Squibb for nineteen years, he was eventually terminated because of absenteeism caused by his drinking. Defendant testified that his marriage broke up over his drinking. He also said that his drinking increased over the years, with the deaths of his father, his ex-wife and, finally, his mother in May 1997. After his mother's death, he received three separate charges for driving while intoxicated, N.J.S.A. 39:4-50, in approximately one week's time and lost his driver's license for ten years.

Ms. Gillens, on the other hand, was addicted to cocaine. In addition to using cocaine, Ms. Gillens would also drink with defendant. After Ms. Gillens moved into defendant's house, he would give her money that she used to purchase cocaine.

Ms. Gillens moved into defendant's home on May 31, 1998. Defendant's bank records showed that from January 29 to June 22 1998 he withdrew slightly more than $8,000, while from June 22 to August 5, 1998, he withdrew more than $31,000, and from August 10 to September 15, 1998, he withdrew an additional $35,190. These large withdrawals, he testified, were to finance Ms. Gillens's cocaine addiction.

Defendant said that the two began to argue and that their arguments became increasingly angry. Defendant said she would attack him during these arguments and throw things at him, damaging the walls and the contents of the house.

After defendant was arrested, the police found two handguns, two shotguns and two rifles in the house, all of which defendant legally possessed, together with a large quantity of ammunition. Originally, the weapons had been kept in the basement. After Ms. Gillens moved in, defendant showed them to her and explained how they worked.

Defendant also testified that Ms. Gillens became extremely fearful of people entering the house. When they used the downstairs bedroom, she slept with a hammer next to the bed because she would hear noises and become afraid. When they switched to the upstairs bedroom, she replaced the hammer with a twelve-gauge shotgun.

As Ms. Gillens became more and more fearful, she would carry a weapon around the house with her. Defendant said he eventually moved all of the weapons to the second floor because other drug users began to frequent the house and he did not want the weapons taken. He said that Ms. Gillens would routinely place a chair against a door to prevent anyone from entering, even with the interior doors within the house. Defendant testified that she became more and more fearful, kept the curtains drawn, the house dark, and was reluctant to leave the house at all. She had less and less need to leave the house because she had found a drug dealer who would make deliveries to the house for her.

Defendant said they had a major argument toward the end of September or the beginning of October during which Ms. Gillens threatened him with the twelve gauge shotgun. He said he retreated upstairs and that when he felt it was safe to come down, he found that she had fallen, breaking part of the staircase and receiving a large gash on her arm. He took the shotgun and saw that the barrel was bent and that the weapon was no longer safe to use. He said that he told Ms. Gillens she would have to leave and find another place to stay. He said he did not make her leave immediately because she had no place to go. However, she replaced the damaged twelve gauge shotgun with his .22 rifle and also took to threatening him with knives. He said that on several occasions she slashed him with a knife and also struck him in the head with a chair leg.

The shooting occurred on October 22, 1998. Defendant testified that they were arguing because he told her he did not have the money to buy more cocaine but had gone to the liquor store to buy vodka for himself. When he returned, he made himself a drink and went upstairs to see if she wanted one. She began to scream at him, and he went back downstairs. He heard her continuing to yell, and he went back upstairs. When he entered the bedroom, she grabbed the .22 rifle and pointed it at him. He reached for a .357 pistol in a drawer and fired one shot and killed her. The prosecution presented evidence based upon the autopsy that the gun was fired from a very close distance.

The charge of hindering prosecution rested upon subsequent events. Defendant did not notify the police of what had occurred. Rather, he remained in the house with Ms. Gillens's body. He said he drank almost continuously for approximately a week and then dismembered her body. He discarded her severed arms in a nearby field. He placed her head in a pot filled with water and attempted to boil it down. He wrapped the rest of her remains in plastic bags and put them in a garbage can in his basement.

After some time had elapsed, he called a friend, Iwan Terenin, and asked him for help in disposing of her body. Mr. Terenin arrived at the house with a friend of his, Leonid Chernyavskiy. When they learned what had occurred, they told defendant they had to leave to get a truck. Instead, they drove to the police station.

On appeal, defendant raises the following arguments:

POINT I

THE PROSECUTOR IMPROPERLY CROSS-EXAMINED DEFENSE PSYCHIATRIST DR. TRENT ABOUT DEFENDANT'S STATEMENTS TO HIM REGARDING THE CRIME WHERE NO MENTAL-HEALTH DEFENSE WAS PRESENTED AND THE EXPERT'S OPINION WAS LIMITED TO THE DECEDENT; AND THE PROSECUTOR'S SUMMATION DISPARAGED TRENT AND THE DEFENSE

POINT II

THE SELF-DEFENSE INSTRUCTION WAS FLAWED AS IT WAS NOT TAILORED TO THE TRIAL FACTS, FAILING TO REFLECT THAT THE JURORS SHOULD CONSIDER PRIOR ACTS OF ABUSE BY THE DECEDENT AGAINST THE DEFENDANT IN DETERMINING WHETHER HIS BELIEF IN THE NECESSITY OF USING DEADLY FORCE WAS HONEST AND REASONABLE

POINT III

DEFENDANT WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN COUNSEL FAILED TO USE THE GRAND-JURY MINUTES TO REFUTE THE MEDICAL EXAMINER'S REBUTTAL EVIDENCE. U.S. CONST. AMEND. VI; N.J. CONST. ART. 1, 10

POINT IV

THE COURT ERRED IN DENYING DEFENDANT'S MOTION TO SEVER COUNT THREE, BECAUSE DEFENDANT'S GRUESOME POST-SHOOTING ATTEMPT TO HINDER HIS OWN APPREHENSION MADE THE JURY MUCH LESS LIKELY TO ACCEPT THE POSSIBILITY THAT HE SHOT THE DECEDENT IN SELF-DEFENSE

POINT V

THE RULING EXCLUDING THE TESTIMONY OF DEFENSE WITNESS JOHN KELLY VIOLATED DEFENDANT'S RIGHTS TO PRESENT A DEFENSE AND DUE PROCESS

POINT VI

THE COURT ERRED IN DENYING DEFENDANT THE RIGHT TO CALL THE DECEDENT'S MOTHER TO TESTIFY ABOUT VIOLENT ACTIONS THE DECEDENT HAD ADMITTEDLY COMMITTED AGAINST DEFENDANT

POINT VII

THE COURT ERRED IN FAILING TO CHARGE THAT VOLUNTARY INTOXICATION COULD NEGATE AN ELEMENT OF THE MURDER AND POSSESSION-OF-A-WEAPON-FOR-AN-UNLAWFUL-PURPOSE OFFENSES

POINT VIII

THE MURDER SENTENCE SHOULD BE REDUCED FROM LIFE TO 30 YEARS BECAUSE IT WAS THE HINDERING OFFENSE, NOT THE MURDER, THAT WAS DEPRAVED

I

Defendant first complains of the prosecutor's comments with regard to one of his experts, Dr. Trent. Dr. Trent was originally retained to examine defendant to determine the viability of either a defense of insanity, N.J.S.A. 2C:4-1, or of diminished capacity, N.J.S.A. 2C:4-2. After conducting his examination, Dr. Trent was unable to provide an opinion that defendant was insane or suffered from diminished capacity. After reviewing the material in the case, however, Dr. Trent did form the opinion that at the time of the shooting, Ms. Gillens was drunk and probably undergoing cocaine withdrawal, that the symptoms of such withdrawal include violent behavior, and that those who are withdrawing from such substances "may be at higher risk for involvement in deadly interpersonal violence." Dr. Trent testified for defendant as to those opinions.

The prosecution, both in cross-examination and in summation, clearly put before the jury the fact that Dr. Trent was unable to opine that defendant was either insane or suffered from diminished capacity. In the course of that cross-examination, the prosecution also questioned Dr. Trent about his interviews of defendant and how defendant's recounting of the incident to Dr. Trent varied in certain respects from what defendant had told the police.

Defendant complains that this cross-examination was unfair because it dealt with areas upon which Dr. Trent was not opining. We perceive no reversible error in the trial court permitting such examination. The topic was only touched upon briefly during the course of an extensive cross-examination. Nor do we see any error in the cross-examination of Dr. Trent on defendant's statements to him. Dr. Trent's testimony raised an issue of defendant's credibility because Dr. Trent's opinion rested, among other factors, on what defendant told him had occurred. To the extent that Dr. Trent's opinion about Ms. Gillens's potential for violence was based upon what defendant told him, the prosecution was entitled to challenge the validity of that foundational basis. State v. Pillar, 359 N.J. Super. 249, 290 (App. Div.) (noting that the jury must determine whether "the predicate facts" underlying an expert's opinion are true), certif. denied, 177 N.J. 572 (2003).

Defendant also puts forth an additional ground upon which the prosecution should not have been permitted to cross-examine Dr. Trent about defendant's statements. He asserts that because Dr. Trent received these statements from defendant's attorney, they were subject to the attorney-client privilege. That privilege, however, is subject to waiver when a defendant produces an expert at trial. State v. Mingo, 77 N.J. 576, 585 (1978); Coyle v. Estate of Simon, 247 N.J. Super. 277 (App. Div. 1991).

We have carefully reviewed the summation by the State and reject defendant's argument of prosecutorial misconduct. The prosecutor attacked Dr. Trent's testimony, as he was permitted to do. The blows that he struck against defendant's case in his summation were hard, but they were not fouls. State v. Feaster, 156 N.J. 1, 59 (1998) (noting that a prosecutor "may strike hand blows [but] he is not at liberty to strike foul ones." (quoting Berger v. United States, 205 U.S. 78, 88, 55 S. Ct. 629, 633, 79 L. Ed. 1314, 1321 (1935))). They were, moreover, grounded in the evidence and thus were not an improper assertion of personal belief. The trial court, moreover, gave a proper limiting instruction after defense counsel objected to the comment that Dr. Trent had taken the "insanity [defense] for a test drive." The curative instruction accorded with defense counsel's request at the time.

II

Defendant also contends that the trial court committed reversible error in its charge with respect to self-defense in three regards. He first argues that the court erred in not reviewing for the jury the facts that bore upon self-defense. The extent of the trial court's remarks in this regard were, at several points, to tell the jury that it could "take into consideration the nature of the relationship between the defendant and Miss Gillens and the presence of firearms in the home and all the circumstances surrounding those firearms."

Defendant correctly cites to cases stressing the need for a trial court to tailor its charge to the specific case at hand. State v. Concepcion, 111 N.J. 373, 379 (1988) ("Ordinarily, the better practice is to mold the instruction in a manner that explains the law to the jury in the context of the material facts of the case."). While the trial court would have been well within bounds to amplify upon its remarks, we cannot consider its failure to do so reversible error. State v. T.C., 347 N.J. Super. 219, 240 (App. Div. 2002) ("[T]here is no principle requiring that in every case a court must deliver a specifically tailored instruction relating the facts of the case to the applicable law."), certif. denied, 177 N.J. 222 (2003). Although the case consumed a number of trial days, the facts surrounding the killing were not particularly complex.

Defendant's attorney argued strongly to the jury, outlining the defense theory that defendant had been subjected to ever-increasing attacks, fueled by her cocaine addiction, which culminated in Ms. Gillens pointing a rifle at him in a rage when he purchased alcohol for himself. The prosecution responded with equal vigor, pointing out why, in its view, defendant had not acted in self-defense at all. "[N]ot every failure to [mold the charge] is fatal." State v. Bilek, 308 N.J. Super. 1, 10 (App. Div. 1998). In an analogous context, we stated:

In view of the evidence presented and arguments made by both parties, and the charge given, we are satisfied the jury understood the significance of the alleged prior abuse and battered woman's syndrome. Any suggestions defendant now makes that could have improved the charge by making it more detailed and specific do not render the charge erroneous.

[State v. Tierney, 356 N.J. Super. 468, 482 (App. Div.), certif. denied, 176 N.J. 72 (2003).]

We cannot fairly conclude that defendant was prejudiced by the trial court's brevity.

Defendant also complains that the trial court erred in explaining to the jury the concept of the duty to retreat. Defendant did not make this objection at the time of trial. R. 2:10-2. In the course of originally instructing the jury on this question, the trial court stated:

If you find that the defendant knew that he could avoid the necessity of using deadly force by retreating, provided that the defendant knew he could do so with complete safety, then the defense [of self-defense] is not available to him. An exception to the rule of retreat, however, is that a person need not retreat from his own dwelling, unless he was the initial aggressor.

In your inquiry as to whether a defendant who resorted to deadly force knew that an opportunity to retreat with complete safety was available, the total circumstances including the attendant excitement accompanying the situation must be considered.

The trial court also clearly instructed the jury that the State bore the burden of proof on this question. It told the jury:

The burden of proof is upon the State to prove beyond a reasonable doubt that the defendant knew he could have retreated with complete safety. If the State carries its burden then you must disallow the defense. If the State does not satisfy this burden and you do have a reasonable doubt, then it must be resolved in favor of the defendant and you must allow the claim of self-defense and acquit the defendant.

Defendant's contention that the trial court did not give a proper instruction in this respect is not supported by the record.

At the conclusion of the charge, the prosecution objected that the trial court did not charge in accordance with the law in effect at the time of the killing. Based upon that objection the trial court gave a supplemental instruction to the jury, charging it that there was an additional exception to the duty to retreat, that is, if the defendant was attacked by someone "who the defendant knew lived in the same dwelling." The trial court did not repeat in this connection the instructions it had earlier provided on the burden of proof; we have no basis, however, to conclude that the jury was misled in any way in this regard.

The State in its brief states that the trial court erred when it gave this supplemental charge. The charge as originally given by the trial court reflected the state of the law at the time of defendant's trial. In 1999, the Legislature, in response to State v. Gartland, 149 N.J. 456 (1997), amended N.J.S.A. 2C:3-4(b)(2)(b)(i) and deleted the language imposing a duty to retreat if an individual were "assailed in his dwelling by another person whose dwelling the actor knows it to be[.]" This amendment became effective April 30, 1999, while this matter was pending.

The State asserts that because this amendment was ameliorative, it is to be applied retroactively. The State also asserts that any error by the trial court in giving the supplemental charge was harmless.

Defendant has taken no position on this question of retroactive application of the amended statute. He neither raised the issue in his original brief nor filed a supplemental brief on the issue. In this posture, we deem the issue waived, and we decline to address it. Liebling v. Garden State Indemn., 337 N.J. Super. 447, 465-66 (App. Div.), certif. denied, 169 N.J. 606 (2001); In re Bloomingdale Convalescent Ctr., 233 N.J. Super. 46, 48 n.1 (App. Div. 1989).

Defendant's final argument with regard to the court's charge on self-defense relates to one sentence in its charge on the use of deadly force. Again, defendant did not raise an objection on this basis at the time of trial. R. 2:10-2. Read in context, we see no error. A reviewing court should read a trial court's charge as a whole. State v. Koskovich, 168 N.J. 448 (2001); State v. Simon, 161 N.J. 416, 477 (1999).

III

In support of his claim of self-defense, defendant testified that Ms. Gillens had attacked him on several occasions. He testified about the injuries he received at her hand and that pictures taken of him on November 6, 1998, some days after his arrest, showed such injuries. Some, he said, were the result of Ms. Gillens slashing him with a knife; another was due to Ms. Gillens having struck him on the head with a chair leg. He also said that she had bitten him. In rebuttal, the prosecution recalled the medical examiner. After studying the pictures, she testified that the wounds shown in the pictures were of recent origin, received after defendant was arrested. She also said the marks that defendant attributed to Ms. Gillens having bitten him were not bite marks. She was unable to express an opinion whether the injuries were self-inflicted.

Defendant countered this testimony by calling an administrator at the county jail where defendant was housed. This witness testified about the close supervision which defendant experienced at the jail and that the jail records did not contain any reference to defendant receiving any injuries while he was in custody.

On appeal, defendant contends that his trial attorney was ineffective in handling this issue because he did not utilize the grand jury testimony of one of the arresting officers, Investigator John Maslak, to the effect that at the time defendant was arrested, he had a fresh scratch on the top of his head.

A defendant alleging ineffective assistance of counsel must establish that his "counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 692-93 (1984). In State v. Fritz, 105 N.J. 42 (1987), our Supreme Court adopted the Strickland standards.

[A] defendant whose counsel performed below a level of reasonable competence must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."

[Id. at 60-61 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).]

Thus, to establish a prima facie claim of ineffective assistance of counsel, defendant must meet both prongs of the Strickland/Fritz test. Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). First, he must show that the actions of his trial counsel were deficient in performance and not objectively reasonable. Ibid. Second, defendant must establish that this deficient performance materially affected the outcome of his trial. Ibid. In determining whether defendant has met the first prong of the Strickland/Fritz test, an appellate court will not second-guess defense counsel's trial decisions which rest upon strategic or tactical considerations. State v. Buonadonna, 122 N.J. 22, 38 (1991).

We consider defendant's argument entirely unpersuasive. The presence of a "fresh" scratch, noted by Investigator Maslak when defendant was arrested on October 30, hardly supports defendant's assertion that Ms. Gillens repeatedly attacked him because she had been dead for approximately one week by the time he was arrested.

IV

Defendant also contends the trial court committed reversible error when it denied his pretrial motion to sever for purposes of trial, count three, charging hindering apprehension, from the remaining counts in the indictment. Defendant maintains that any jury hearing the details of his post-shooting conduct would be so inflamed against him that it would be impossible for it to deliberate fairly on other charges against him.

Rule 3:7-6 provides:

Two or more offenses may be charged in the same indictment or accusation in a separate count for each offense if the offenses charged are of the same or similar character or are based on the same act or transaction or on 2 or more acts or transactions connected together or constituting parts of a common scheme or plan. Relief from prejudicial joinder shall be afforded as provided by R. 3:15-2.

Rule 3:15-2(b) states:

If . . . it appears that a defendant . . . is prejudiced by a permissible or mandatory joinder of offenses . . . in an indictment or accusation the court may order . . . separate trials of counts . . . or direct other appropriate relief.

Central to the question whether to grant a defendant's motion to sever under R. 3:15-2(b) is "'whether, assuming the charges were tried separately, evidence of the offenses sought to be severed would be admissible under [N.J.R.E. 404(b)] in the trial of the remaining charges.'" State v. Chenique-Puey, 145 N.J. 334, 341 (1996) (quoting State v. Pitts, 116 N.J. 580, 601-02 (1989)) (alteration in original). If the evidence would be admissible, the charges may be tried together because to do so would not expose a defendant to additional prejudice. Id. at 341; State v. Urcinoli, 321 N.J. Super. 519, 542 (App. Div.), certif. denied, 162 N.J. 132 (1999).

Further, the determination whether to grant a motion for such severance rests in the trial court's sound discretion. As we noted in State v. Krivacska, 341 N.J. Super. 1, 40 (App. Div.), certif. denied, 170 N.J. 206 (2001), cert. denied, 535 U.S. 1012, 122 S. Ct. 1594, 152 L. Ed. 2d 510 (2002), we review the matter, not from the perspective whether we would decide the question in the same manner, but whether the trial court abused its discretion in deciding the matter as it did. "An appellate court will defer to the trial court's decision, absent an abuse of discretion." Chenique-Puey, supra, 145 N.J. at 341.

Defendant contends that evidence relating to his dismemberment of Ms. Gillens would not be admissible if he were tried separately on the homicide charge. Because it occurred after the death of Ms. Gillens, he contends it is irrelevant to his motive at the time of the shooting. We agree, however, with the State's contention that evidence of the dismemberment would be admissible if the offenses were tried separately because it would go to refute defendant's contention that he acted in self-defense when he shot Ms. Gillens. And clearly, evidence of the homicide would be admissible against defendant in a separate trial on a charge of hindering because the homicide was a predicate fact to the hindering charge.

In his brief, defendant merges the analysis of a motion for severance with a claim that evidence relating to the dismemberment should have been sanitized. Defendant points to State v. Collier, 316 N.J. Super. 181 (App. Div. 1998), aff'd o.b., 162 N.J. 27 (1999), to support his claim of unfair prejudice. That case, however, was decided not upon severance grounds but upon our determination that certain of the evidence upon which the prosecution relied should have been sanitized because of its potentially prejudicial impact. Collier, supra, 316 N.J. Super. at 195.

We have carefully reviewed the trial transcript in this regard. At various points, defendant did object when, in his view, the testimony dealing with the dismemberment became unduly prejudicial. The trial court upheld certain of these objections and overruled others. None of those rulings provides a basis to reverse defendant's convictions.

V

Defendant, in preparation for trial, retained as an expert John Kelly, a former cocaine addict who ran a drug-counseling center. Kelly, after overcoming his own cocaine addiction, became a certified drug counselor. He is neither a licensed clinical social worker nor a licensed social worker. He eventually formed an out-patient counseling agency at which he would conduct in-take evaluations and develop treatment plans. Kelly did not make any psychiatric or psychological diagnosis, but consulted with a psychiatrist and a psychologist in formulating a treatment plan.

After interviewing defendant, and reviewing the written statements of Ms. Gillens's cocaine dealers and mother, Kelly provided a written report, stating that Ms. Gillens's behavior, with its "severe paranoia, intense anger, explosive rage and violence[]" was "symptomatic of severe cocaine dependency."

The State moved to bar Kelly as an expert witness, arguing he lacked the necessary credentials to serve in that capacity. After a N.J.R.E. 104 hearing, the trial court agreed and granted the State's motion. In explaining its ruling, the trial court said that Kelly's background and credentials qualified him in the area of treatment and counseling, but not as an expert on the effects of cocaine abuse upon the addict. Defendant contends the trial court erred in its ruling and that he is entitled to a new trial as a result.

The decision whether an individual has the requisite qualifications to testify as an expert rests within the discretion of the trial court. Krivacska, supra, 341 N.J. Super. at 32-33. Here, while we are satisfied that the trial court erred in excluding Kelly as a witness, we are unable to conclude that the error warrants a new trial.

Kelly was not proffered as an expert witness to give a psychological or psychiatric diagnosis. Rather, defendant wanted to present Kelly as a witness to explain to the jury the effects of cocaine usage upon an addict in order to support defendant's testimony about Ms. Gillens's excessive fearfulness, her anger and her volatility. Kelly's background and experience, in our judgment, provided an ample basis to admit him as an expert witness in this area.

Having reviewed the trial transcript, however, it is apparent that defendant presented that same testimony through Dr. Trent. That Dr. Trent apparently did not withstand cross-examination well does not lead to a conclusion that defendant is entitled to a second trial, with a witness who may perform more strongly on the stand.

VI

Defendant sought to call Ms. Gillens's mother as a witness to testify that her daughter had told her of an incident in which Ms. Gillens pursued defendant with a gun and fell down the stairs and of another incident in which Ms. Gillens kicked defendant down the stairs. The trial court denied the application, citing our opinion in State v. Aguiar, 322 N.J. Super. 175 (App. Div. 1999), and United States v. Keiser, 57 F.3d 847 (9th Cir.), cert. denied, 516 U.S. 1029, 116 S. Ct. 676, 133 L. Ed. 2d 525 (1995).

The defendant in Aguiar was convicted of aggravated manslaughter; after his conviction was affirmed, he sought post-conviction relief on the basis that the State had withheld the fact that the victim, who at trial had been portrayed as peaceful, in fact had been convicted of murder. Aguiar, supra, 322 N.J. Super. at 178-79. The trial court had denied the defendant's application, finding the evidence irrelevant unless the defendant had known of the victim's violent tendencies. Id. at 178. We reversed. Ibid. We noted that under the federal evidence rules, "a victim's character is admissible to show that the victim was the aggressor." Id. at 183. We also noted that under N.J.R.E. 405, "[w]hen evidence of character or a trait of character of a person is admissible, it may be proved by evidence of reputation, evidence in the form of opinion, or evidence of conviction of a crime which tends to prove the trait." Aguiar, 322 N.J. Super. at 183. We concluded that the defendant's proffer of the victim's prior conviction for murder was admissible under N.J.R.E. 405. Ibid.

The defendant in Keiser, believing that a group of assailants was attacking his brother with a gun, fired his rifle; the bullet struck one of the group, paralyzing him below the waist. Keiser, supra, 57 F.3d at 849. Defendant sought to introduce evidence of an incident that occurred during the trial, in which the victim had to be removed from the lobby after screaming at the defendant's brother, apparently threatening revenge. Id. at 849-50. This, defendant alleged, tended to show the victim's aggressive nature and bolstered defendant's claim that he acted in defense of his brother. Id. at 852. The Court of Appeals held the evidence was properly excluded because it was evidence of a specific act which is admissible under Fed. R. Evid. 405(b) only if a person's character is an essential element of a defense. Id. at 856-57.

Defendant urges before us that we should not adopt the Keiser approach, but, rather, follow State v. Lewchuk, 539 N.W.2d 847 (Neb. Ct. App. 1995), and State v. Dunson, 433 N.W.2d 676 (Iowa 1988), both of which admitted into evidence specific instances of the victim's violent acts in the context of a claim of self-defense, finding it relevant to the question who was the first aggressor.

We reject the analytical framework that defendant has presented to us, which poses the issue as if the ruling of the court deprived defendant entirely of the ability to present evidence of Ms. Gillens's conduct and behavior. In reviewing the trial transcript, it is apparent that the trial court did permit introduction of evidence of Ms. Gillens's prior violent acts and defendant argued to the jury from that evidence that she was the first aggressor. That evidence came both from defendant and from Zoromae Glenngrant, who told the jury in detail of Ms. Gillens's conduct. She said that Ms. Gillens would bully defendant and strike him. She said that she had seen defendant with two black eyes that Ms. Gillens had given him and that Ms. Gillens, during her tantrums, destroyed furniture in the house. She said that on one occasion when she was staying at the house, she heard defendant and Ms. Gillens arguing upstairs and that Ms. Gillens ran into her room carrying a shotgun and blocked the door and yelled to defendant, "If you come through the door I'll blow a cap in your ass." Her testimony was replete with examples of such conduct.

In addition, it is uncertain how much the testimony of Ms. Gillens's mother, Lillie Tankard, would have supported defendant's assertion that Ms. Gillens was the initial aggressor. The parties have not supplied us with copies of the statements Ms. Tankard provided to the police. They are referred to in detail in the transcripts of the arguments before the trial court on the admissibility of her testimony. According to those transcripts, defendant wished to question her about two incidents. One is described in the following manner:

Miss Tankard was told by her daughter that George tied her up and that she walked away and George walked away and then George came back and she kicked George and when she kicked George he fell down the steps . . . .

The second incident is described in the following manner:

[T]hey [defendant and Ms. Gillens] arrived after drinking and doing cocaine and she ran up the stairs, I assume the first floor to the second floor, with a shotgun and the shotgun got caught in the spokes, she calls them, of the railing causing her to fall on the shotgun and cut her arm.

We are unable to conclude from these references that the trial court's ruling unfairly prejudiced defendant. In the first statement, defendant is cast as the initial aggressor and in the second, there is no indication at all that Ms. Gillens was pursuing defendant.

VII

We reject defendant's assertion that the trial court erred in not charging defendant's intoxication as a defense to the charge of murder and possession of a weapon for an unlawful purpose. The only evidence of defendant's ingestion of alcohol prior to the shooting is his testimony that after going to the store to purchase a bottle of vodka, he returned home and made himself a drink. That falls far short of the required level of proof. State v. Cameron, 104 N.J. 42, 54 (1986); State v. Micheliche, 220 N.J. Super. 532, 543 (App. Div.) ("[T]he degree of intoxication must be such as to bring about so great a prostration of the faculties that the requisite mental state was totally lacking."), certif. denied, 109 N.J. 40 (1987).

VIII

Defendant's remaining arguments are addressed to his sentence. He challenges the five-year term, with a parole disqualifier, imposed by the trial court on the hindering conviction as a violation of the sentencing principles announced in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), and State v. Natale, 184 N.J. 458 (2005). We are compelled to agree. The trial court imposed the maximum sentence and, in doing so, cited aggravating factors not necessarily encompassed within the jury's verdict. In light of Natale, defendant is entitled to a resentencing.

He also argues that the life sentence, with a thirty-year parole disqualifier for his murder conviction, is similarly invalid. We reject this aspect of defendant's argument. State v. Abdullah, 184 N.J. 497, 508 (2005) (holding that trial court did not violate defendant's Sixth Amendment rights when it imposed a life sentence for murder).

We do, however, agree with one portion of defendant's argument with regard to his sentence for murder. In imposing a life term, the trial court cited aggravating factor number one, that the crime was committed in a particularly heinous manner. N.J.S.A. 2C:44-1(a)(1). It was the subsequent dismemberment, however, that was particularly heinous, not the shooting itself. The evidence indicated that the victim died immediately from one bullet fired at close range. Because that aggravating factor is not supported by the record, defendant must be resentenced on that conviction as well.

Defendant's convictions are affirmed. The matter is remanded for resentencing. We do not retain jurisdiction.

 

The State within its brief contends that Kelly was offered to give a DSM diagnosis of co-dependency. We recognize that at one portion of the transcript of the N.J.R.E. 104 hearing, there was a reference to a diagnosis of co-dependency. We infer this to be an error in transcription, that the witness was referring to cocaine-dependency. Co-dependency has been defined as "a set of maladaptive, compulsive behaviors learned by family members in order to survive in a family which is experiencing great emotional pain and stress." http://www.allaboutcounseling.com/codependency.htm#whatis (last visited July 24, 2006). That term has no bearing in the context of this case. Kelly in his written report refers not to co-dependency but to cocaine-dependence.

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A-0013-02T4

August 8, 2006