STATE OF NEW JERSEY v. BRIAN P. HOFFMAN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6196-06T46196-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

BRIAN P. HOFFMAN,

Defendant-Appellant.

__________________________________

 

Submitted: January 14, 2009 - Decided:

Before Judges Cuff and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 05-11-2403.

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

Theodore F. L. Housel, Atlantic County Prosecutor, attorney for respondent (Jack J. Lipari, Assistant County Prosecutor, of counsel and on the brief).

PER CURIAM

Following a jury trial, defendant was found guilty of first degree attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3a(1), (2) (Count One); second degree aggravated assault (serious bodily injury), N.J.S.A. 2C:12-1b(1) (Count Two); third degree threat to kill, N.J.S.A. 2C:12-3b (Count Three); fourth degree unlawful possession of a weapon (a knife), N.J.S.A. 2C:39-5d (Count Four); third degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (Count Five); and fourth degree contempt of a final domestic violence restraining order, N.J.S.A. 2C:29-9b (Count Six). The victim was defendant's former wife. As a result of the assault that formed the factual basis of these charges, the victim was stabbed seven times.

After merging Count Two with Count One, the judge imposed a twenty-year term of imprisonment with an 85% NERA parole disqualifier. Concurrent terms of five years were imposed on Counts Three and Five, and a concurrent term of eighteen months was imposed on Count Four. The judge imposed a consecutive eighteen-month term with a nine-month period of parole ineligibility on Count Six, for an aggregate term of twenty-one and one-half years. The appropriate penalties, assessments and restitution were also imposed.

Mary Barry and Brian Hoffman married in December 1985 and divorced in February 1993. Two daughters were born of the marriage. The marriage and the period during marital separation were stormy. Defendant left New Jersey in 1993 and his family did not see him again until 2005.

In the summer of 2005, Margaret Hoffman, daughter of defendant and Barry, was a student at Stockton State College. Her sister Tara worked at Charlie's Bar and Restaurant (Charlie's) in Somers Point. In July 2005, Margaret visited Tara at Charlie's and then drove to visit her brother Tim.

As Margaret left Charlie's parking lot, she noticed a green Ford F-150 truck behind her. Throughout her trip, she noticed that the truck was following. She also noticed that each time she looked in her rearview window, the driver of the truck looked down. More troublesome to her was that the green truck followed her as she made a complicated turn, drove down a local road, and reappeared as she left a convenience store. She was able to discern that the truck bore Florida license plates. As she arrived at her brother's, the green truck continued on its way.

After she left her brother and returned to Charlie's, Margaret told her sister what occurred. Later, she talked to her mother about the incident. Her mother advised her to call the police, indicating it could be her father. Margaret disagreed and even though she was afraid, did not tell the police until the day after the attack on her mother.

On September 7, 2005, Barry was residing with Margaret and Tara at her home at 14 North Village Drive in Somers Point. At about 10:00 a.m., Barry was outside doing light yard work. A green truck pulled up in front of the house and a man emerged. This was not unusual because people frequently lost their way when they entered her subdivision and stopped to ask directions.

As the man approached her, however, Barry recognized defendant and also observed that he had a knife in his hand. When she saw the knife, realizing she was alone but that her next door neighbor was home, she began to run across her property. As she did so, she experienced back spasms and defendant caught her at the neighbor's driveway. He grabbed her by the hair and stabbed her. The victim testified she felt the knife penetrate her body. She felt a total of seven stab wounds, three to her neck and four to her back. While defendant stabbed her, he stated he was going to kill the rest of the family after he killed her.

Defendant also threw Barry down and started to drag her along the ground. Believing that defendant was attempting to drag her to the vehicle parked in the driveway, she clung to the bumper even as she felt the knife enter her body again.

In addition to stabbing Barry, defendant beat her brutally. He kicked her, ripped both hoop earrings from her earlobes, and smashed her head on the curb. She sustained numerous bruises, including broken ribs.

The attack lasted between five and ten minutes. While it was happening, Barry was screaming and bleeding profusely. Michael Caiazza, who lived across the street, heard her screams and came to her aid. When Caiazza yelled, "Get away from her," defendant turned, looked, ran to his truck, and fled.

Caiazza testified that Barry stated defendant was "going to kill [her]." He also saw defendant standing over Barry holding her hair and pounding her head against the concrete driveway.

Barry recalled placing her sweatshirt into the hole in her neck and worrying about Caiazza because defendant was armed. She remembered towels being put around her injuries. She also recalled being afraid for her children and family because of defendant's threat to kill them, and telling the police their whereabouts. She also identified defendant as her assailant to Caiazza, the police, and medical personnel.

Dr. Jeffrey Anderson, the surgeon who treated Barry, stated that the three stab wounds to her neck were the most significant. He found a transection of the internal jugular vein on the right and a laceration of her trachea. She also suffered a pneumothorax. He described the wounds as life threatening. Barry was placed in the intensive care unit following surgery and remained hospitalized for nine days.

Following her release, Barry underwent intensive physical therapy, including vitalstim therapy, as well as plastic surgery for her various scars. She sustained permanent injuries. She is unable to swallow food normally and the scars remain visible.

Defendant was arrested sleeping in his truck in California. A search of the truck's interior revealed a Florida license plate, a small notebook with several New Jersey phone numbers, including 609 area codes, and a pocket knife.

At trial, defendant testified that during the summer of 2005, he returned to New Jersey. He hoped to introduce himself to his daughters and tell them his version of the circumstances surrounding the dissolution of the marriage.

As to the September 7, 2005 attack, defendant testified that he initially thought it was one of his daughters in the yard. Then, he realized it was his former wife and she had a knife in her hand. He insisted that his former wife approached him and he grabbed her arm because he thought she intended to stab him. He conceded that once he wrestled the knife from her, anger consumed him.

On appeal, defendant raises the following arguments:

POINT I

THE COURT ERRED IN ADMITTING HIGHLY PREJUDICIAL STATEMENTS THAT DEFENDANT MADE TO A PSYCHOLOGIST IN 1992 WHILE INCARCERATED.

POINT II

THE COURT ERRED IN FAILING TO CHARGE THE LESSER-INCLUDED OFFENSES OF AGGRAVATED ASSAULT.

POINT III

WHEN IN SUMMATION THE PROSECUTOR CALLED THE DEFENDANT A MANIACAL WOULD-BE MURDERER, LABELED THE DEFENSE PREPOSTEROUS, AND MISSTATED THE LAW, HE EXCEEDED THE BOUNDS OF PROPRIETY AND DEPRIVED THE DEFENDANT OF A FAIR TRIAL. (NOT RAISED BELOW).

POINT IV

THE DEFENDANT WAS SENTENCED TO A MANIFESTLY EXCESSIVE TERM OF 20 YEARS WITH A 85% PAROLE BAR UNDER NERA, AND A CONSECUTIVE 18 MONTH TERM WITH A NINE MONTH PAROLE BAR.

While defendant and the victim were separated, defendant was arrested and incarcerated in the county jail. During that time, he spoke to a psychologist on three occasions. The State sought to admit statements made by defendant to the psychologist in which he threatened the life of his estranged wife. Defendant objected. He invoked the psychologist-patient privilege, N.J.S.A. 45:14B-28 and N.J.R.E. 505, and further argued that the statements were inadmissible prior bad acts and irrelevant. Judge Garofolo held that the prior threats satisfied the four-prong test established by State v. Cofield, 127 N.J. 328, 338 (1992), and were therefore admissible pursuant to N.J.R.E. 404(b). As to the asserted privilege, the judge held that it is not absolute and satisfied the three-prong test allowing disclosure of privileged material established by In re Kozlov, 79 N.J. 232, 243-44 (1979).

Following this ruling, Ellen Kawich testified about conversations she had with defendant in October 1992 regarding his wife. At the time, Kawich was employed by Prison Health Services as a psychologist. She was available to inmates at the Atlantic County jail one day a week. During these conversations, defendant stated that he was going to kill his wife and "it would be worth it."

Section 28 of the Practicing Psychology Licensing Act of 1966, N.J.S.A. 45:14B-1 to -46, recognizes a psychologist-patient privilege. It provides:

The confidential relations and communications between and among a licensed practicing psychologist and individuals, couples, families or groups in the course of the practice of psychology are placed on the same basis as those provided between attorney and client, and nothing in this act shall be construed to require any such privileged communications to be disclosed by an such person.

There is no privilege under this section for any communication: (a) upon an issue of the client's condition in an action to commit the client or otherwise place the client under the control of another or others because of alleged incapacity, or in an action in which the client seeks to establish his competence or in an action to recover damages on account of conduct of the client which constitutes a crime; or (b) upon an issue as to the validity of a document as a will of the client; or (c) upon an issue between parties claiming by testate or intestate succession from a deceased client.

[N.J.S.A. 45:14B-28.]

This language has been incorporated verbatim in the New Jersey Rules of Evidence. N.J.R.E. 505.

Although not explicit in the statute, the privilege does not protect disclosure of confidential communications when necessary to avoid imminent and clear danger to an identifiable third party. See Kinsella v. Kinsella, 150 N.J. 276, 302-04 (1997) (discussing waiver of the privilege in the context of matrimonial litigation). Noting the language in the statute that the psychologist-patient privilege is "placed on the same basis as [communications] between attorney and client," the Court observed that "an exception analogous to the 'crime or fraud' exception to the attorney-client privilege has been recognized where the psychologist is obligated to make disclosures in order to respond to a 'clear and present danger' to the patient or others." Id. at 297, 302. See also N.J.A.C. 10A:16-4.4 (corrections regulation requiring a psychologist to disclose privileged information in situations where there is "clear and imminent danger" to an inmate or others).

During the pretrial hearing, Kawich testified defendant's statements to her on November 6, 1992, were the most intense expression of his anger towards his wife and his intention to kill her. She reported this threat to officials at the county jail because she believed defendant posed a danger to his wife at that time and she had a responsibility to disclose that threat. Having uttered a credible threat to the life of his wife, the psychologist-patient privilege was waived at that time.

On the other hand, the privilege may not have been waived in perpetuity and for any and all reasons. See Kinsella, supra, 150 N.J. at 301. Stated differently, while exceptions to a communications privilege are fashioned to reflect the purpose for the existence of privilege, id. at 298 (citing Fellerman v. Bradley, 99 N.J. 493, 502 (1985)), the privilege will not be deemed waived for any and all purposes. Id. at 301; Arena v. Saphier, 201 N.J. Super. 79, 90-91 (App. Div. 1985).

In this case, defendant's comments to Kawich during his incarceration in 1992 went far beyond an expression of dislike for his estranged wife. He expressed an intention to harm her and an opinion that the act would be worth the risk of prosecution and incarceration. The psychologist reported these statements because she perceived the remarks as a bona fide threat to an identified third party, defendant's wife. Admission of this communication between defendant and his psychologist at trial did not exceed the exception to otherwise privileged communications. Initially, the privilege was pierced due to an identifiable threat to defendant's wife. At trial, the privilege remained pierced to establish the hostility defendant held towards his wife for so long.

Although we hold that defendant could not invoke the psychologist-patient privilege to bar Kawich's trial testimony, we are also satisfied that, if the privilege did apply, it was overridden by the circumstances of the case. The record establishes that there was a legitimate need for the evidence, the evidence is relevant and material to the issue of defendant's intent and to counter defendant's contention that he simply reacted to the victim's aggressive acts towards him, and the evidence could not be obtained from a less intrusive source. Kozlov, supra, 79 N.J. at 243-44.

The remaining issues presented by defendant are without sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(2). The trial judge properly rejected defendant's request to charge third degree aggravated assault, N.J.S.A. 2C:12-1b (2) and (3), as a lesser included offense of second degree aggravated assault (serious bodily injury), N.J.S.A. 2C:12-1b(1), because a rational fact-finder would not acquit defendant of second degree aggravated assault and convict him of third degree aggravated assault. He found that the jury could not rationally find that defendant's acts were "not life-threatening, capable of causing death." We agree.

The judge applied the proper test. That is, the trial judge shall instruct a jury to consider a lesser-included offense if there is a rational basis in the evidence to acquit a defendant of the charged offense and convict of the lesser-included offense. State v. Sloan, 111 N.J. 293, 299 (1988). That is not this case. Here, the multiplicity and nature of the wounds and the mechanisms of injury are so compelling that no rational fact-finder could find that defendant did not "purposely or knowingly or under circumstances manifesting extreme indifference to the value of human life recklessly cause[]" serious bodily injury to the victim. N.J.S.A. 2C:12-1b(1).

Similarly, the prosecutor did not exceed the bounds of professional propriety during his summation. Defendant contends that the prosecutor misstated the law, referred to defendant as a "methodical, menacing and maniacal would-be murderer," and dismissed the defense as preposterous. He argues that these statements deprived him of a fair trial. We review this contention as plain error because no objection was lodged at trial. R. 2:10-2. Thus, we must be satisfied that any error was clearly capable of producing an unjust result. State v. Macon, 57 N.J. 325, 333 (1971).

To be sure, defendant had no burden to produce any evidence at trial. The burden of proof remained with the State throughout the trial. State v. Black, 380 N.J. Super. 581, 594 (App. Div. 2005), certif. denied, 186 N.J. 244 (2006); State v. Jones, 364 N.J. Super. 376, 382 (App. Div. 2003). Therefore, the prosecutor should not have argued that the "defense has provided no evidence whatsoever of either Ms. Barry's bias or the defendant nor any other State's witness in this case." Moreover, a description of a defense as "preposterous" has in other circumstances contributed to a reversal for prosecutorial excess. See State v. Acker, 265 N.J. Super. 351, 355-58 (App. Div.) (reversal required for numerous instances of prosecutorial excess including characterizing the defense and defense counsel as "absolutely preposterous and absolutely outrageous"), certif. denied, 134 N.J. 485 (1993). We cannot conclude, however, that these comments deprived defendant of a fair trial.

Here, the evidence of defendant's guilt was overwhelming. We have previously referred to the multitude of injuries, the character and severity of the injuries and the mechanisms of injury. Moreover, defendant never denied his presence at the scene or his involvement. We must recognize that the prosecutor's characterization of the defense was a response to defense counsel's minimization of the incident as "an altercation that was unfortunate." Coupled with the absence of a timely objection, we cannot conclude that the jury was so impassioned by prosecutorial excess that it could not fairly and rationally evaluate the overwhelming evidence of defendant's guilt.

Finally, we discern no basis to disturb the sentence. Judge Garofolo followed the applicable sentencing guidelines, identified aggravating and mitigating factors based on competent and credible evidence in the record, and imposed a reasonable sentence. State v. Roth, 95 N.J. 334, 364-66 (1984).

 
Affirmed.

No Early Release Act, N.J.S.A. 2C:43-7.2.

The inapplicability of the privilege when a bona fide threat to the safety of identifiable third parties reflects the duty imposed on therapists to disclose such threats. First expressly recognized in Tarasoff v. Regents of the University of California, 551 P.2d 334, 342-43 (Cal. 1976), the Legislature codified this duty in 1991. N.J.S.A. 2A:62A-16b; Marshall v. Klebanov, 188 N.J. 23, 38 (2006).

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A-6196-06T4

March 18, 2009