STATE OF NEW JERSEY v. PEDRO DE JESUS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5066-04T45066-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PEDRO DE JESUS,

Defendant-Appellant.

_________________________________

 

Submitted October 4, 2006 - Decided October 30, 2006

Before Judges Graves and Lihotz.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Ind. No. 02-03-0479.

Yvonne Smith Segars, Public Defender, attorney for appellant (Susan Brody, Assistant Deputy Public Defender, of counsel and on the brief).

Luis A. Valentin, Monmouth County Prosecutor, attorney for respondent (Mark P. Stalford, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Pedro De Jesus was convicted by a jury of murder, N.J.S.A. 2C:11-3 (count one), and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count two). Defendant was sentenced to a thirty-year prison term, with a thirty-year parole bar on court one and a concurrent five-year prison term on count two. Appropriate monetary sanctions were also imposed.

On appeal, defendant asserts:

POINT I

THE COURT ERRED IN PERMITTING THE STATE'S EXPERT TO TESTIFY AS TO OTHERWISE INADMISSIBLE STATEMENTS MADE TO POLICE BY A FRIEND OF THE VICTIM, AND IN DENYING DEFENSE COUNSEL'S REQUEST FOR A MISTRIAL ON THAT BASIS.

POINT II

THE COURT ERRED IN FAILING TO MERGE THE CONVICTION FOR POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE INTO THE CONVICTION FOR MURDER. (Not Raised Below.)

We recite the facts in the record relevant to this appeal. Defendant lived with his girlfriend, Maria Castle, and her two minor children. On the evening of November 18, 2001, defendant was drinking and arguing with Castle about her sixteen year-old daughter's failure to attend school. Early the next morning, the sixteen year-old found her mother on the front porch bleeding heavily. Castle told her daughter that defendant had stabbed her. Castle later died as a result of her stab wounds. After his arrest, defendant cooperated with the police and provided a sworn confession that he had stabbed Castle with a knife from the kitchen drawer.

At trial, defense expert, psychiatrist John Verdon, reviewed the report issued after defendant's psychiatric examination. Dr. Verdon opined that although defendant stabbed Castle, killing her, defendant's judgment was impaired due to his substance abuse such that he lacked the capacity to commit a knowing and purposeful murder. In rebuttal, the State's expert, forensic psychologist Louis Schlesinger, testified defendant neither suffered from addiction nor mental disease or defect which would interfere with his ability to act purposely and knowingly at the time of the stabbing.

Defendant maintains a mistrial was required after Schlesinger, in the course of testifying, discussed the statement of Denise Andrade, regarding her telephone call to Castle on the night of the incident, despite the trial court's prior ruling barring the State's use of Andrade's statement in its case in chief. Schlesinger repeated that portion of Andrade's statement made to police wherein she overheard defendant talking to Castle, repeating the phrase, "so that's what you want Maria." After a side-bar colloquy, the court allowed no further testimony about Andrade's statement and denied the motion for mistrial.

In charging the jury, the court gave the following instruction:

As a general rule[,] witnesses can testify only as to the facts known to them. This rule ordinarily does not permit the opinion of a witness to be received as evidence.

However, an exception to this rule exists in the case of an expert witness who may give his or her opinion as to any matter in which he or she is versed and which is material to the case.

. . . .

You are not bound by such expert's opinion. But you should consider each opinion and give it the weight to which you deem it entitled[,] whether that be great or slight or you may reject it.

In examining each opinion[,] you may consider the reasons given for it, if any, and you may also consider the qualifications and credibility of the expert.

It is always within the special function of the jury to determine whether the facts on which the answer or testimony of an expert is based actually exist. The value or weight of the opinion of the expert is dependent upon[,] and is no stronger than[,] the facts on which it is based.

In other words, the probative value of the opinion will depend upon whether[,] from all of the evidence in the case[,] you find that those facts are true.

You may in fact determine from the evidence in the case that the facts that form the basis of the opinion are true, are not true, or are true in part only and in light of such findings[,] you should decide what effect such determination has upon the weight to be given to the opinion of the expert.

Your acceptance or rejection of the expert opinion will depend, therefore, to some extent on your findings as to the truth of the facts relied upon.

As to the conviction, defendant seeks reversal, contending the trial court's denial of his request for a mistrial was error. After detailed analysis of the record in light of the applicable law, we conclude defendant's argument is without sufficient merit to warrant discussion in written opinion, and affirm his conviction with the following brief comments. R. 2:11-3(e)(2).

"In general, a trial court is afforded 'considerable latitude regarding the admission of evidence,' and is to be reversed only if the court abused its discretion." State v. Nelson, 173 N.J. 417, 470 (2002) (quoting State v. Feaster, 156 N.J. 1, 82 (1998)). Under this standard, we will not substitute our judgment for that of the trial court, unless the ruling is "so wide of the mark that a manifest denial of justice resulted." State v. Brown, 170 N.J. 138, 147 (2001) (citations omitted).
Defense counsel objected to Schlesinger's testimony after the statements were made. In reviewing the expert's entire testimony, the statement's content was ambiguous. Any possible prejudice was eliminated by the trial court's ruling to limit further testimony regarding Andrade's statement. Moreover, the instructions charging the jury "to determine whether the facts on which . . . testimony of an expert is based actually exist" and further stating that, "[t]he value or weight of the opinion of the expert is dependent upon[,] and is no stronger than[,] the facts on which it is based," properly directed the jury. There is no support in the record for a determination that the jury was unable to comply with these instructions, State v. Winter, 96 N.J. 640, 648-49 (1984), or that the remarks unfairly impacted the jury's verdict in any way.

As to Point II, the State concedes, for the purpose of sentencing, that the conviction for the possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d, merges with the conviction for murder because defendant's unlawful use of the knife was not independent of the homicide, see State v. Diaz, 144 N.J. 628, 636 (1996), requiring remand for resentencing.

Affirmed as to the conviction and remanded, consistent with this opinion, for resentencing.

 

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A-5066-04T4

October 30, 2006