STATE OF NEW JERSEY v. EDWARD DUKES

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5935-07T45935-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EDWARD DUKES,

Defendant-Appellant.

________________________________________________________________

 

Argued May 26, 2009 - Decided

Before Judges Lisa and Reisner.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 06-09-00867-I.

Brian S. O'Malley argued the cause for appellant.

Linda L. Lawhun, Executive Assistant Prosecutor, argued the cause for respondent (Ronald J. Casella, Cumberland County Prosecutor, attorney; Ms. Lawhun, on the brief).

PER CURIAM

Defendant was indicted for the murder of Edward Ellison and related offenses. Defendant filed a notice that he would present the defenses of voluntary intoxication, insanity and diminished capacity. In support of these defenses, defendant furnished an initial report and further supplemental reports issued by Dr. Robert T. Latimer, a psychiatrist. With respect to defendant's alleged intoxication, the trial court held that Latimer's opinion was a net opinion, unsupported by sufficient facts to establish the level of intoxication required to support a voluntary intoxication defense. Accordingly, after a series of orders dealing with this subject after various motions and hearings over the course of many months, the court entered an order on June 27, 2008, which provided "that the defendant is precluded from presenting the testimony of Dr. Robert Latimer at a Miranda[] hearing or at trial on the issue of diminished capacity based upon intoxication." We granted defendant's motion for leave to appeal from that order.

Defendant presents the following arguments:

POINT I

THE DECISION OF THE TRIAL COURT PRECLUDING PRESENTATION OF THE DEFENSE PSYCHIATRIC EXPERT, ROBERT T. LATIMER BOTH AT A MIRANDA HEARING AND AT TRIAL IS ERRONEOUS, DEPRIVES MR. DUKES OF DUE PROCESS, AND HIS RIGHT TO A TRIAL BY JURY.

A. THE HEARING AND RULING WERE PREMATURE (Not Raised Below).

B. THE COURT VIOLATED R. EVID 104(b) BY FAILING TO ADMIT THE CONTESTED EVIDENCE SUBJECT TO A FINDING OF FACT (Not Raised Below).

C. THE DECISION BY THE COURT WAS AN ABUSE OF DISCRETION.

D. THE OPINIONS EXPRESSED WERE NOT NET OPINIONS SUBJECT TO PRECLUSION.

E. AN OPINION BASED UPON STATEMENTS OF THE DEFENDANT AS TO INTOXICATION IS NOT SUBJECT TO SUPPRESSION BUT INSTEAD TO A CREDIBILITY REVIEW OF THE JURY.

Based upon the current state of the record and the contents of the various reports issued by Latimer, we find no error in the trial court's determination. However, based upon our review of the complete appellate record, we conclude that defendant should not be precluded from further pursuing the presentation of expert testimony regarding intoxication through Latimer if based upon adequate factual support. We therefore affirm the order under review, but modify that order to leave open the possibility that Latimer may testify regarding the effects of defendant's alleged intoxication if he furnishes a proper opinion in accordance with the controlling legal principles.

I

In the early morning hours of September 25, 2004, in Bridgeton, Ellison was found badly beaten and unresponsive. He died from his injuries before he could be removed from the scene by ambulance. The investigation quickly led to defendant as the probable perpetrator. Defendant was taken into custody and questioned by Detective J. Thompson for about ninety minutes, beginning at 3:50 a.m. According to Thompson, defendant appeared calm and reported that he had been drinking at the Country Bar. He did not state specifically what he had been drinking or how much. No blood alcohol test was performed. Thompson detected a very faint odor of alcohol on defendant's breath.

Other detectives interviewed Rhonda Cannon that morning. She was present during the attack on Ellison. Cannon and defendant had a longstanding on-and-off romantic relationship. Police had responded to a number of domestic calls in the past regarding defendant and Cannon. Thompson was aware of this. Cannon told the detectives that Ellison was a family friend of hers, who was in town to attend a wedding. Ellison was an elderly gentleman. As Cannon returned to her house from the drug store with Ellison, defendant approached the car, punched Ellison, pulled him out of the car and began kicking him. Cannon attempted to intervene, and defendant hit her. Cannon went into her house and woke defendant's sister, Shakia Hill, in an effort to obtain help to stop defendant's attack on Ellison. Defendant entered the home and assaulted Cannon. Cannon called the police. Defendant went back outside and continued assaulting Ellison.

Latimer issued his initial report on February 10, 2005. He had interviewed defendant on January 28, 2005, and he reviewed numerous documents as part of his evaluation. These included the arrest report and police investigation reports from this incident, as well as some reports of prior incidents involving defendant, the statements given to the police by Cannon and Hill, and the like. These materials painted a picture of defendant acting in a very violent and uncontrollable manner at the time of the homicide. Hill, for example, said she had never seen her brother act in that manner, although she had seen him drunk many times. Another witness, Stephanie Purnell, had been at the Country Bar. She said defendant grabbed her by the hair, pulled her into the men's bathroom, and began choking her. He punched her and was acting crazy. She told the police that she and defendant had had physical fights in the past, but he never looked or acted like that before, and he "looked like the Devil."

From the materials and Latimer's interview with defendant, it appeared that when arrested defendant might have thought he was being arrested for doing something improper to Cannon. He denied any knowledge of having assaulted Ellison. Defendant told Latimer, "If I wasn't drinking, this never would have happened. . . . I seen Rhonda with guys before. The man [Ellison] was like an uncle. I didn't even know him. I must have come up and got angry. I don't know why. The only explanation was that I was intoxicated." Defendant said that when he was told he had killed someone, the next day he began to come to his senses, was sick to his stomach, thought he had been set up, and thought it could not be true.

Latimer noted in his report that defendant included in his history a brain injury from being hit in the head with a baseball bat several years earlier when he was sixteen years old. However, Latimer had not seen the medical records from that injury. Latimer set forth the following opinions in his February 10, 2005 report:

Edward Dukes, Jr., is a man of limited intellectual capacity with a history of head concussion; heavy drinking and anti-social personality traits. On 9/25/04, while under the influence of alcohol, he became acutely agitated and without provocation destroyed items in the residence of Rhonda Cannon and proceeded to pummel, strike, kick and threaten those around him, including Decedent. Decedent was struck several times with objects which probably include a shovel and a trash can. Those injuries resulted in his death.

At the time of these events of 9/25/04, Edward Dukes, Jr., was in an irrational state with agitation and psychomotor excitements released by intoxicants which prostrated his mind and impaired his cognition. At that time he was unable to distinguish right from wrong. He behaved in a disorganized, destructive and homicidal fashion which was irrational and was not accompanied by clear thought. He was therefore unable to be aware of the nature of his conduct and the possible results of that conduct because his consciousness was impaired. Therefore he could not engage in conscious activity. He could not have understood the nature of his conduct or the circumstances surrounding his conduct at the time of the homicide. He could not have been aware of the circumstances surrounding his behavior nor could he have been aware of the results of his conducts, so that he could not have acted with knowledge in relation to those actions. There is clear indication in the Police Reports that he was under the impression that he was being charged with an attack on Rhonda Cannon. There is also indication that he treated the arresting Officers disrespectfully with offensive, provocative and crude language. There is also evidence that the arresting Officers were aware that he was intoxicated. Furthermore, the accounts of witnesses, Cannon and Hill appear consistent with the findings of the Investigation of the Crime Scene.

Subsequent to the issuance of the February 10, 2005 report, Latimer obtained and reviewed the medical records related to defendant's 1998 head injury. In light of those records, Latimer issued a supplemental report on October 6, 2005. He stated that "there can be no argument that [defendant] had suffered a substantial and serious brain injury causing intra-cranial pressure. There was also a skull fracture over the right frontal region, not displaced." Latimer was "now convinced that this patient suffered from a chronic condition, vulnerable to alcohol or intoxicating chemicals which account for his delirium and irrational state on 9/24/04."

The State moved to bar Latimer's testimony as to defendant's diminished capacity based on intoxication. After hearing oral argument on October 25, 2005, the court concluded that the information contained in Latimer's reports was insufficient to establish that defendant was intoxicated at the time of the crime. Defendant said he was drinking with friends and believed he was intoxicated. Police witnesses detected only a very faint odor of alcohol on defendant's breath. But, critically, there was a lack of information as to what alcohol defendant consumed, in what quantity, and during what timeframe relevant to the time of the crime, to support the contention that he was extremely intoxicated at the time of the crime. As the court stated, "[w]e don't know whether Mr. Dukes had one drink or a hundred drinks." The court acknowledged that defendant did not have to produce a blood alcohol test, nor did he have to prove the "the exact or finite number of drinks" he consumed, but more was needed to support Latimer's unfounded assumption that defendant was extremely intoxicated. Thus, the court agreed with the State that Latimer's opinion with respect to the effects of intoxication was a net opinion and would be barred.

Because Latimer had attributed defendant's diminished mental capacity to a combination of intoxication and other mental deficiencies unrelated to alcohol, the court directed defense counsel to obtain from Latimer confirmation in writing as to whether he could separate the two, in which event Latimer would be permitted to render his opinions unrelated to intoxication. Counsel complied, and Latimer issued a brief supplemental report on November 9, 2005, stating that defendant "has bona-fide and documented history of cerebral damage, affecting his mental processes and unrelated to intoxication at any given moment, especially on or about 9/25/04 due to diminished intellect and lack of good judgment related to objective brain damage."

On November 18, 2005, the court denied defendant's motion for reconsideration. On March 16, 2006, defendant moved for leave to appeal. By order of April 27, 2006, we allowed the filing of the motion as if within time. We then denied the motion for leave to appeal "without prejudice to the presentation by defendant of additional evidence regarding defendant's intoxication in support of the Dr. Latimer opinion."

Seizing upon that opportunity, defendant developed additional factual evidence regarding defendant's alcohol consumption prior to the crime. Defendant then moved to vacate the trial court order barring Latimer from testifying regarding intoxication. Defendant supported his motion with investigative reports of witnesses who saw defendant in the hours prior to the crime, confirmed that he was drinking at the Country Bar, and that he appeared to them to be intoxicated. No further report from Latimer was provided. The court found this information insufficient to upset the prior order. First, conclusory statements from witnesses that an individual appeared intoxicated are legally insufficient. Second, "Dr. Latimer didn't . . . rely on any of this stuff." The court denied the motion to vacate its earlier ruling.

On February 5, 2007, Latimer issued his fourth report. He had now reviewed the investigative materials. He noted that Michael Russell, an off-duty corrections officer, saw defendant in the Country Bar on the night leading up to the crime, but at an unspecified time. Russell knew only that it was dark out and that he would have left the bar before midnight. Russell described defendant as "obviously drunk." He said defendant was "talking trash, annoying, with two drinks in his hands." He said defendant was "staggering" and "stumbling." Latimer also referred to the investigation report in which Rubin Jacobs said defendant had been drinking Hennessy that night and was drunk. Investigative reports also revealed that Troy Heard said defendant was very obviously drunk and was stumbling around, and that he had been drinking Hennessy and Coronas. Based upon his review of this supplemental information, Latimer concluded that defendant

was probably intoxicated to a degree in which his mind was prostrate and therefore unable to understand the nature or quality of his acts or the fact that he was doing something wrong due to his diminished cognitive capacity by severe intoxication. In other words, I stand by my opinion, as stated to you in my report of 2/10/05.

On February 12, 2007, Latimer issued his fifth report. This time, he responded to defense counsel's inquiry as to his opinion regarding defendant's ability to understand his Miranda warnings and to waive his Miranda rights in the aftermath of the crime. Latimer opined that defendant's severe intoxication with diminished capacity rendered him incompetent to understand his rights and waive them at that time, "related to the prostration from alcohol intoxication." In that report, Latimer commented, "Of course I am not aware of how much he had to drink."

On February 23, 2007, the matter again came before the court, and testimony was taken in connection with defendant's Miranda motion. Among the witnesses were defendant's sister, Hill, and Lloyd Deshields. Hill testified that when she saw defendant two hours prior to his arrest, he appeared intoxicated and she detected the odor of alcohol on him as he was acting in an uncontrollable and violent manner, destroying property. Deshields testified that he was with defendant the night before defendant's arrest around 9:30 or 10:00 p.m., and he observed defendant consume "[a] lot of Hennessy, Heineken," and more than five shots of liquor. Deshields commented that defendant "wasn't in his right state of mind."

The hearing continued on June 26, 2007, and testimony was then taken from Heard and Russell. Heard testified that defendant was drinking Coronas and Hennessy from noon until 4:00 or 5:00 p.m. the day before his arrest, and he became "hyper" from the effects of alcohol. Heard again saw defendant that night between 11:00 p.m. and 1:00 a.m. and observed that defendant was intoxicated.

Russell testified consistent with the information he had previously provided in the course of the investigation. He was previously acquainted with defendant. He had occasion to observe defendant for about twenty minutes while in the Country Bar, and noted that defendant "wasn't himself," and was speaking with loud, slurred speech and leaning on people. Russell saw defendant holding a glass and believed defendant was intoxicated.

On July 4, 2007, defendant filed another motion seeking to vacate the prior order prohibiting Latimer's testimony regarding intoxication. A hearing was conducted on July 20, 2007. The court denied the motion, noting that nothing new had been submitted from Latimer since his reports of February 5 and 12, 2007. Those reports were deemed deficient because Latimer merely relied upon conclusory statements by various fact witnesses that defendant appeared intoxicated, and "he merely says that because fact witnesses say that Mr. Dukes was intoxicated, he was intoxicated." Thus, the court concluded that, notwithstanding the new information provided by witnesses who observed defendant at various points throughout the day and evening leading up to the crime, "we're in the same boat as we were originally with regards to Dr. Latimer's evaluation. So I'll deny, I guess it would be the -- a second Motion for Reconsideration."

The Miranda hearing continued on March 19, 2008, before a different judge. Stephanie Purnell testified. She said she observed defendant "drunk" at the Country Bar on September 25, 2004. She saw him around 11:00 p.m. drinking "[s]omething brown in a cup. I don't know what, it was a lot of drinks." She thought it was "brown liquors and drinks." Defendant appeared drunk, grabbing Purnell, pulling her hair, and wanting to kiss her. She believed he was intoxicated and appeared "crazy" and acted out of character, sitting on tables he pushed together on the dance floor and jumping on cars outside the bar. This testimony was consistent with the investigative reports containing a statement from Purnell.

The judge, who had obviously familiarized himself with the prior history and proceedings in the case, found no basis for defendant's continuing request to vacate the prior order barring Latimer's testimony regarding intoxication. He found that Latimer's opinion regarding intoxication was a net opinion because his reports contained insufficient information regarding the particulars of defendant's alcohol consumption sufficient to establish intoxication or severe intoxication. The judge said, "It's clear that what Mr. Dukes had to drink, the time period when he consumed those drinks, and the quantity that he consumed is still largely unknown, and certainly unknown to Dr. Latimer." Because Latimer did not possess that information, which is "critical to that type of determination, for him to conclude that . . . defendant's mind, was so prostrated by the alcohol consumption, even if in conjunction with some other underlying condition," could not be supported. Indeed, in Latimer's February 12, 2007 report, he expressly stated that he was "not aware of how much defendant had to drink." The judge therefore entered the order that is now the subject of this appeal, barring Latimer's testimony at a Miranda hearing order at trial on the issue of diminished capacity based upon intoxication.

While all of this was taking place with Latimer, the defense also had defendant evaluated by a psychologist, Dr. Jonathan H. Mack. In his August 8, 2007 report, Mack stated:

Mr. Dukes said that he "drunk a lot that night, beer and liquor." Mr. Dukes said that in the preceding 24-hours he drank two cases of beer with a couple of other guys. He estimated that he drank about a case himself. He said that in addition he drank a couple of "liters of Hennessy" which they shared.

Mack opined that defendant was cognitively impaired by virtue of his brain injury. After discussing that circumstance in some detail, he continued that "[t]hese difficulties are also exacerbated by alcohol intoxication on the one hand and by an emotionally arousing situation (seeing a man with his girl friend) on the other." It was Mack's opinion that defendant was unable to formulate the specific intent to murder the victim due to a combination of severe brain damage and consequent Dementia and Organic Personality Syndrome, "further aggravated by severe alcohol intoxication, if the history of this from Mr. Dukes is correct." Mack continued:

If the history given by Mr. Dukes is correct, that he did consume approximately a case of beer plus a liter or two of hard liquor in the 24-hours preceding the criminal event, he also had prostration of faculties due to alcohol intoxication which served to further disinhibit his already disinhibited brain, causing even greater failure of the frontal-executive system in this instance.

In a second report, issued March 5, 2008, Mack further opined, in response to an inquiry from defense counsel, that, for the same reasons, defendant "was unable to give a fully knowing, intelligent, and voluntary waiver of his Miranda rights on 09/25/2004." As part of his preparation for that report, Mack re-interviewed defendant on March 3, 2008, with specific reference to the Miranda issue. And, in his report, he reiterated the history given by defendant "that he had drunk approximately a case of beer plus at least a liter of hard liquor in the 24 hours preceding the criminal event."

Notably, the prosecution has not objected to the proffered testimony of Mack, based upon the opinions set forth in his reports, including with respect to intoxication. Indeed, at the hearing before the trial court on March 19, 2008, the prosecutor distinguished between the opinions rendered by Latimer and Mack:

We still have little or no information about what Mr. Dukes was drinking, or in what quantity he was drinking it, or over what period of time he was drinking it.

Notwithstanding that, Dr. Latimer has essentially now issued a report saying, "Yes, he was in fact intoxicated. I've looked at all these things, and I was right all along, he was intoxicated." But, here's my next concern, is that Dr. Latimer says in his latest report, that his conclusion is reached notwithstanding the fact that he is not aware of how much defendant had to drink. And, that seems to me to be a contradiction. Either the doctor has some idea what the defendant had to drink, and therefore concludes he was intoxicated, or he is not aware of how much he had to drink, and therefore can't render an opinion, would seem to me to be the two choices. But, Dr. Latimer wants to support his opinion without having any knowledge of what the defendant had to drink.

Simply put, Dr. Latimer is not the person who should be testifying in this case. I don't think there's any prejudice to the defense on this point. They have another expert, they have Dr. Mack, and he has done a report, and we're not objecting to him testifying on this issue, but Dr. Latimer should not be allowed to testify.

At oral argument before us, the prosecutor confirmed that the State continues to adhere to the position that Mack has provided a sufficient factual basis to avoid the net opinion rule with respect to intoxication and that the State has no objection to his proposed testimony. However, with respect to Latimer, the State's position is that because in his original report or reports he expressed the view that defendant was severely intoxicated without a sufficient factual basis (including the amount and type of alcohol he consumed and the timeframe in which he consumed it), he is forever tainted and cannot be a witness in this case. The prosecutor conceded that there is nothing to preclude the defense from obtaining an evaluation and report from a different psychiatrist, and if adequately factually supported, that individual would be allowed to testify as to his or her opinions regarding the effects of intoxication on defendant at the time of the crime.

These sentiments expressed by the prosecutor conform with the findings made by the trial court on March 19, 2008:

It was a net opinion when he first issued it, and I find that the additional information that has been forthcoming really wasn't the basis for his opinion, it was after the fact. And, yet, he somehow came to his conclusion up front, and apparently hasn't wavered from his conclusion.

II

An appellate court reviewing a trial court's evidential ruling "is limited to examining the decision for abuse of discretion." Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008) (citing Brenman v. Demello, 191 N.J. 18, 31 (2007)). The abuse of discretion standard includes the trial court's determinations on the admissibility of proffered expert testimony. Id. at 16.

The net opinion rule prohibits the admission into evidence of an expert's conclusions unsupported by factual evidence or other data. State v. Townsend, 186 N.J. 473, 494 (2006). "Simply put, the net opinion rule 'requires an expert to give the why and wherefore of his or her opinion, rather than a mere conclusion.'" Ibid. (quoting Rosenberg v. Tavolrath, 352 N.J. Super. 385, 401 (App. Div. 2002)).

Self-induced intoxication is a defense against knowing or purposeful offenses. State v. Mauricio, 117 N.J. 402, 418 (1990). Self-induced intoxication can reduce a purposeful or knowing murder to manslaughter or aggravated manslaughter. Ibid.

Under the Code of Criminal Justice, "'Intoxication' means a disturbance of mental or physical capacities resulting from the introduction of substances into the body." N.J.S.A. 2C:2-8e(1). "'Self-induced intoxication' means intoxication caused by substances which the actor knowingly introduces into his body, the tendency of which to cause intoxication he knows or ought to know . . . ." N.J.S.A. 2C:2-8e(2).

In order for voluntary intoxication to negate knowing or purposeful conduct within the meaning of these provisions, there must be a showing of such "prostration of faculties" to deprive the actor of being capable of acting purposefully or knowingly. State v. Cameron, 104 N.J. 42, 54, 57-58 (1986). In Cameron, the Court set forth a non-exclusive list of "factors pertinent to the determination of intoxication sufficient to satisfy the test of 'prostration of faculties' - a shorthand expression used here to indicate a condition of intoxication that renders the actor incapable of purposeful or knowing conduct." Id. at 56. The factors listed are (1) the quantity of intoxicant consumed, (2) the period of time involved, (3) the actor's conduct as perceived by others, (4) any odor of alcohol or other intoxicating substance, (5) the results of any tests to determine blood-alcohol content, and (6) the actor's ability to recall significant events. Ibid.

In this case, there was no blood alcohol test administered at or near the time of the events, and that circumstance cannot be changed. The absence of a blood alcohol test is not dispositive. We are therefore left with consideration of the remaining five Cameron factors and any others that might be deemed pertinent.

A number of witnesses, including an off-duty corrections officer, described defendant's conduct, as they observed and perceived it, to demonstrate a state of severe intoxication. Defendant had an odor of alcohol on his breath, although characterized by the detectives who took his statement as only a faint odor. There is substantial evidence that defendant was consuming alcohol in the hours preceding the crime, particularly at the Country Bar, and elsewhere. Defendant demonstrated a lack of ability to recall significant events at the time of the crime. Those factors weigh in favor of establishing a jury issue as to the prostration of faculties test. And, Latimer relied upon those factors in forming his opinions regarding the effects of intoxication on defendant.

The critical information upon which Latimer did not rely was the quantity of intoxicants consumed and the time period involved. In the absence of a blood alcohol test revealing a high level of alcohol in the actor's system or evidence of the amount and timeframe of alcohol consumed, we find no mistaken exercise of discretion in the trial court's determination that Latimer possessed insufficient information upon which to base his opinion that defendant was severely intoxicated. See Mauricio, supra, 117 N.J. at 419. We accordingly find no error in the trial court's determination that Latimer's opinion regarding the effects of intoxication was not supported by sufficient factual information and was a net opinion.

In Mauricio, the Court distinguished cases in which sufficient information was provided. Ibid. (noting State v. Bey, 112 N.J. 123, 143 (1988), in which the defendant testified to consuming 120 ounces of malt liquor and some straight rum and smoking a considerable amount of marijuana, and State v. Frankland, 51 N.J. 221, 223 (1968), in which the defendant testified to consuming fifteen glasses of Scotch whiskey).

The anomaly in the case before us is that, as in Bey and Frankland, defendant apparently told Mack what he drank, in what quantities, and in what time frame. Mack relied upon that information as corroborated through other witnesses, in rendering his opinions on the effects of intoxication. The State concedes that Mack's opinions in this regard are not net and it has no objection to Mack testifying accordingly. We fail to understand why, if this same information is provided to Latimer, and if it reinforces an opinion he has already rendered, namely that defendant was extremely intoxicated at the time of the crime, such that it prostrated his faculties to the extent that he could not act purposefully or knowingly, the same result would not pertain.

This was no doubt what we had in mind when we denied defendant's initial motion for leave to appeal on April 27, 2006, "without prejudice to the presentation by defendant of additional evidence regarding defendant's intoxication in support of the Latimer opinion." Although defendant proceeded to gather additional evidence in this regard, he failed to furnish all of it (most importantly evidence of the amount, identity and time of the alcohol consumed) to Latimer and to obtain from Latimer a further supplemental report incorporating that information.

We reject the State's contention that Latimer is forever tainted and cannot provide an opinion in this case even if supported by sufficient factual information (as in the case of Mack). We know of no reason why an expert whose initial opinion is deemed net cannot revise the opinion with additional information that would rescue it from the net opinion rule and render it competent. Of course, such a sequence of events could well be the subject of cross-examination and argument and might influence the factfinder in assessing Latimer's credibility and what weight should be attributed to his opinions.

Ordinarily, the admissibility of evidence should not be determined until it has been offered at trial. State v. Cary, 49 N.J. 343, 352 (1967). However, in criminal cases, pretrial hearings regarding the admissibility of evidence may be held. R. 3:9-1(d). Preliminary questions about a witness's qualifications or the admissibility of evidence are generally determined by the court at a separate hearing. N.J.R.E. 104(a).

The order under review is interlocutory, and upon disposition of this appeal, the case will return to the trial court for further proceedings. We direct that defendant be given a reasonable opportunity, if he chooses, to rehabilitate Latimer and qualify his intoxication opinions as not being net opinions. This may be accomplished through a further supplemental report containing additional required information. If such a report is not produced or is deemed by the court inadequate, defendant may request a Rule 104(a) hearing, at which Latimer may testify and explain the basis for his opinions. If Latimer establishes that he relied on sufficient information regarding the amount, time and type of alcohol defendant consumed, consistent with Cameron and Mauricio, and satisfactorily identifies the factual basis for that reliance, the trial court should make a new determination as to the admissibility of his testimony regarding the effects of intoxication.

We leave to the sound discretion of the trial court the procedural framework within which to accomplish this directive. We anticipate that reasonable, but relatively tight, time constraints will be imposed on defendant. The interests of the State, the defense, and the public require that this case be readied for trial and concluded as soon as reasonably possible.

Affirmed as modified.

 

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

The report is mistakenly dated March 5, 2007.

Our analysis pertains only to the net opinion rule. Admissibility of the opinion testimony, particularly at trial, will be determined according to the controlling legal principles. See, e.g., State v. Burris, 298 N.J. Super. 505, 511-14 (App. Div.), certif. denied, 152 N.J. 187 (1997).

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A-5935-07T4

June 16, 2009