STATE OF NEW JERSEY v. J.I.F

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6270-07T46270-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

J.I.F.,

Defendant-Appellant.

________________________________

 

Submitted: November 18, 2009 - Decided:

Before Judges C.L. Miniman and Waugh.

On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 07-10-00702-I.

Yvonne Smith Segars, Public Defender, attor ney for appellant (Michael C. Kazer, Desig nated Counsel, on the brief).

Robert L. Taylor, Cape May County Prosecu tor, attorney for respondent (J. Vincent Molitor, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant J.I.F. appeals from a final judgment convicting him of the lesser-included offense of assault, a disorderly per sons offense, contrary to N.J.S.A. 2C:12-1a(1); third-degree criminal restraint, contrary to the N.J.S.A. 2C:13-2a; third-degree witness tampering, contrary to N.J.S.A. 2C:28-5a; and fourth-degree harassment while on parole, contrary to the provi sions of N.J.S.A. 2C:33-4e, on which an aggregate sentence of nine years imprisonment was imposed. We now reverse.

I.

On May 23, 2006, defendant and the victim, who had a ten-year-long relationship and two children together, were living in Middle Township. The victim told defendant that she was going to work, but instead went to the home of a coworker to quell a rumor spreading at her place of employment that she was romanti cally involved with the coworker. Sometime later that morning, defendant called plaintiff at work and was told that she did not go to work that day. He then called her cell phone, but she did not answer the call. However, she did call her stepfather, who advised her to go home.

In the meantime, defendant called the victim's mother scream ing hysterically that her daughter was cheating on him and he was going to kill her. The victim's mother immediately left work and went to her daughter's apartment. She found defendant in a fit of rage throwing her daughter's belongings out the back door. They went inside and he sat down on the couch and started to cry. She tried to calm him down.

The victim soon arrived home and parked her sport utility vehicle (SUV) in the driveway at the back of the house. Defendant came out of the house and threw the house phone at her SUV, cracking the windshield. Defendant then punched out the driver's side window with his fist and tried to pull her out of the SUV. He accused her of cheating on him and called her names.

The victim's mother got between them, urging defendant to calm down while she pushed her daughter's head back into the SUV and tried to open the vehicle door. Blood from defendant's hand was all over the three of them. Defendant then threw the door open and pulled the victim out of the SUV by her neck and dragged her into their apartment.

Defendant and the victim continued to argue, then started a fist fight but calmed down somewhat and separated. Defendant went outside and the victim followed him, but he told her to go back inside. At that point, the victim and her mother started arguing, with the victim denying that she was unfaithful to defendant. The victim's mother grabbed her daughter, told her she had to fix the mess because she had a family, and gave her a push. The victim hit her mother back; her mother grabbed her arms, shook her, and told her she had to fix it. The victim's mother hit her and defendant got into the middle of their fight, at one point pushing his forearm against the victim's jaw and neck. The mother said she had had enough and asked where to find clothing for her youngest grandchild, dressed him, and took him to her home.

After the mother left, the victim and defendant resumed their accusations and denials. When the victim said she did not have to put up with defendant's accusations, she stood up and defendant smacked her face, causing her to fall and hit the couch. While the victim was on the couch, defendant put his hands on her several more times. He punched her thighs and arms more than once, causing bruising, and would not stop until the victim identified the man she was with that morning. He stopped hitting her after that, but said he was going to get the man. At that point, the victim stood up and told him there was no need for that, and he grabbed her by the shirt and dragged her into the bedroom and threw her on the bed. Defendant got on top of the victim and put his forearm on her throat, saying that she ruined him and he loved her. The defendant left the room to clean up the blood on his hand and the victim took the portable house phone, went into the backyard, and called 9-1-1 at 11:49 a.m. She reported that defendant "just beat the shit out of [her]" and she needed help. She was crying hysterically and reported that she was hurt and needed an ambulance. Police were immediately dispatched to her location. When the victim saw defendant through the back door, she dropped the phone and went back into her apartment where they continued to argue. She did not tell him she had called 9-1-1. They went to their bedroom, argued some more, and she sat on the bed. He told her she was not leaving and sat on a computer chair in front of the bedroom door.

Defendant left at one point and then came back to the bed room door to tell the victim there were police officers outside the house. He was upset because he was on parole. The victim apologized for calling the police. He asked her to stay in the bedroom while he tried to get rid of the police and she told him to say she was not there. Defendant stepped out of the apart ment and told Patrolman Joshua Bryan that he got into an argu ment with his girlfriend and punched out the window of her SUV. He told the officer that the victim was not there; she might have walked through the woods to her grandmother's house in Whitesboro. Bryan asked Officer James D'Alonzo to search for her, but he could not find her. Defendant then said she might have gone to her mother's home. Bryan asked Officer Jason Sill to go there.

Because the victim was embarrassed to have anyone see her face, which was red, and because she was crying, she did not want to talk to the police, although she did not want them to leave. As the victim waited in the bedroom, she began to experience pain and stiffness in her arms and legs from the blows from defendant and her mother and did not have the strength to move. She called her stepfather to explain the situation and he told her to just sit there and see what hap pened and he would call the police and her mother. The stepfather called 9-1-1 at 12:41 p.m. He informed the operator that he had received a call from his daughter, who had been beaten by defendant and was injured, and was in her bedroom in her apartment. The victim called her father again to say that defendant was not letting the police into the house.

Fifteen minutes after the mother left her daughter's apartment, Sill arrived at the mother's home looking for the victim. The mother informed him the victim was at her own apartment. She claimed Sill searched her apartment, but the officer had no rec ollection of doing so. Sill informed Bryan that the victim was not there, and left with the mother following the police back to the victim's apartment. Bryan then asked to search the apartment, but defendant refused to consent to a search.

The mother found defendant standing on the back deck talk ing to a police officer and she walked up to him, told the offi cer that the victim was still in the apartment, which was locked, and demanded the keys from defendant. He complied and she entered the house with two police officers following her. She and the officers headed to her daughter's bedroom, pushed aside a computer chair in front of the bedroom door, and found the victim sitting on the bed with her face swollen and marks around her neck. The mother testified the victim was not in the same physical condition as when the mother left earlier. The victim was taken to the hospital on a stretcher and defendant was arrested and charged. While in the hospital, the victim told Detective Allen McClure that defendant punched her in the face and caused injuries to her shoulders and neck. He took photographs of her injuries and they were received into evidence.

While at police headquarters on May 23, 2006, defendant gave a handwritten statement to the police after he waived his Miranda rights. When asked what happened, defendant read his handwritten statement while McClure tape recorded it, with McClure interjecting questions and defendant responding to them. Defendant then gave his handwritten statement to McClure, who made a copy for him.

In his statement to McClure, defendant admitted holding the victim down on the bed with his forearm against her jawbone, smacking her in the face, hitting her repeatedly in the thigh, putting a chair in front of the bedroom door, and telling her that she was not going anywhere until she told him the truth. Defendant also stated:

Now, I'm in the house with [the victim]. Officer Bryan shows up. I'm looking out the front window. I said, now what did you go do? She said, I . . . I called the cops. I said now you want . . . you want to put me back in jail, right? I said, this is what you want to do. She said, [J.I.F.], I don't want to lose my family. I don't want to lose my family. I don't want to lose you. You . . . you helped me get as far as I got. You didn't . . . when I . . . when you were in prison, I had nothing. And then when I . . . when you came back home, I have some thing. And it's the same thing over again. She says, before you went to prison, I had something, when you . . . when you left to go to prison, I had nothing. And now that you're back home, I'm back doing something with myself.

McClure allowed defendant to listen to the tape recording of the statement; defendant made no clarifications, deletions, or additions.

Defendant married the victim on August 20, 2006. The vic tim's mother objected to the marriage, having had no relation ship with defendant since May 23, 2006. However, defendant attempted to speak with her several times until defendant left three messages on his mother-in-law's voicemail on March 8, 2007.

In the first voicemail message, defendant stated:

[N]ow my lawyer called me yesterday and said you're the . . . you're the State star wit ness. They don't even . . . tell them the whole truth about your background, your (inaudible) in the pool. You're [sic] stab bing yourself in the hand. You . . . over dosing on pills. Tell them that you have a mental problem. That you're unfit to be a witness. . . . All of that testimony, all of that . . . all of that stuff bomb-barding [sic] you, because you wanna be in the lime light [sic], and you wanna destroy my family. Our family. Your daughter's family. . . . So call me. And if you don't . . . if you don't call me, then I'm just gonna put my lawyer on you, but you'll be on the stand for two days. I wanna prevent this. I don't wanna see you crack up and be in some mental institution. So call me.

In the second voicemail, defendant stated: "Do the brainy thing. Don't go in there and do nothing negative, and you won't suffer. 'Cause either way it go [sic], I'm coming out a winner. Alright? So, you can do what you want."

In the third voicemail, defendant stated:

So would you . . . please give me a call back, alright? I don't wanna see you do 3-5 for purgery [sic] or anything like that. . . . [The victim and I] never lived . . . better than this. Ever. Since I been with [the victim]. And you're gonna try to destroy it? And then you're gonna get upset with us, once we try to cut you off? Don't make no sense.

After hearing those messages, defendant's mother-in-law was "terrified": "I was in fear of my safety at that point." The next day she contacted the prosecutor's office, who advised her to contact Detective Don Nelson of the Middle Township Police Department.

According to Nelson, "[Defendant's mother-in-law] came into the police headquarters to report intimidating messages she received on her voicemail." She provided him with her phone number and voicemail password to retrieve and record the mes sages left by defendant. Those messages were later transcribed and read to the jury. After taking a statement from the mother-in-law, Nelson contacted the prosecutor and then prepared a warrant for defendant's arrest.

After defendant was arrested on March 10, 2007, and taken to police headquarters, Nelson read him his Miranda rights; defendant waived his rights and signed a Miranda waiver card. Nelson informed defendant of the charges, but he denied intimidating or threatening his mother-in-law. Defendant stated:

I have this case going on, domestic violence with me and my wife. The state has me on charges of aggravated assault and criminal restraint. Which are both false, my wife lied and stated that I was restraining her against her will. . . . I didn't aggravate [sic] assault her. [I]t was more like a sim ple assault. And that's pretty much it.

Defendant also acknowledged that, at the time he left the voicemails for his mother-in-law, he was aware of the charges against him, that the matter was pending, and that it was sched uled for trial. He also acknowledged that, pursuant to an ear lier order, he was not to have any contact with his mother-in-law. Defendant made no specific reference to his prior convictions, incarcerations, or his parole status.

Notwithstanding defendant's denial that he intimidated or threatened his mother-in-law, she subsequently testified at trial:

Q. Did he threaten physical violence to you in those phone calls?

A. No, he didn't have to, no, no.

Q. Did he tell you to change your testimony?

A. Yes.

Q. Okay. You're certain of that?

A. I'm positive.

Q. Did he tell you not to show up in court?

A. No.

II.

On October 16, 2007, defendant was indicted on charges of third-degree aggravated assault, contrary to N.J.S.A. 2C:12-1b(7) (count one); third-degree criminal restraint, contrary to N.J.S.A. 2C:13-2a (count two); third-degree witness tampering, contrary to N.J.S.A. 2C:28-5a (count three); second-degree witness tampering, contrary to N.J.S.A. 2C:28-5a (count four); and fourth-degree harassment, contrary to N.J.S.A. 2C:33-4e (count five).

The State filed a pretrial motion to admit the expert tes timony of Cynthia Lischick, Ph.D., a psychologist and a Domestic Violence Specialist certified by the New Jersey Association of Domestic Violence Professionals, on the subject of Battered Woman's Syndrome ("BWS"). The court granted the State's motion, subject to an N.J.R.E. 104 hearing and defendant's right to cross-examine her prior to trial.

The Rule 104 hearing was conducted on August 27 and September 4, 2007, at which time Dr. Lischick was qualified as an expert on domestic violence. She explained that "battering" is separate from episodic assault in that it involves a pattern of various conduct over time, including: (1) isolation from support systems; (2) intimidation and threats; (3) degradation; (4) tactics and strategies involving psychological abuse; and (5) deprivation of rights and freedoms. She noted that there can also be physical and/or sexual abuse.

She testified that batterers often believe they are "privi leged and entitled to coerce and control the victims using intimidating gestures, using threats, [and] depriving them of rights and freedoms" to get what they want. Generally, they believe that there will be no consequences as a result of their actions and therefore they have no reason to stop.

She explained that there are three categories of victim coping responses: (1) they can adapt to the coercive control environment and begin to follow exactly what is demanded by the batterer; (2) they can become "numb" to the degradation that occurs; or (3) they can resist. Victims of battering often do not want to testify against the batterers because they are afraid, and, in fact, often protect the batterers by testifying on their behalf and denying that the battering occurred, or by minimizing it. Approximately sixty percent of domestic violence reports involve battering and approximately forty percent involve episodic instances of domestic violence.

However, she acknowledged that BWS and the theory of the cycle of violence do not apply to every case. BWS is not recog nized in the Diagnostic and Statistical Manual as a sepa rate illness, and the theory of BWS has been discredited by some. Furthermore, she acknowledged that she did not evaluate or even meet the victim, and therefore could not make a diagnosis that she was in fact battered or suffering from BWS.

At the conclusion of the hearing, the judge denied defendant's motion to bar Dr. Lischick's testimony. He ruled that Dr. Lischick was properly qualified as an expert and her testimony was admissible. However, her testimony was limited to explaining to the jury what battering and BWS were and what type of conduct is associated with them, and not for purposes of rendering an opinion as to whether the victim was a battered woman or suffering from BWS. The judge subse quently denied defendant's motion for reconsideration, based on his reading of State v. Townsend, 186 N.J. 473 (2006). Dr. Lis chick testified at trial substantially as she did at the Rule 104 hearing.

The State also filed a pretrial motion to admit evidence of defendant's parole status pursuant to N.J.R.E. 404(b). Specifi cally, the State sought to introduce defendant's May 23, 2006, statement to McClure regarding his altercation with the victim and his March 10, 2007, statement to Nelson regarding his voicemail messages to his mother-in-law. Preliminarily, the State sought to excise references in the statement of March 10, 2007, to the assistant prosecutor, to which defendant objected. The judge denied this portion of the State's application on November 15, 2007. Argument on the Rule 404(b) issues began that day and was continued on December 11, 2007.

As to the admission of the statements, the State sought to introduce the entire statements, including portions that referred to defendant being on parole at the time of both offenses as proof of motive and intent. The judge granted the State's motion to admit defendant's May 23, 2006, statement in its entirety, finding that the four-prong criteria of Cofield and Marrero had been sufficiently addressed and satisfied. As to the first prong, he found the statements about the penal conse quences of the victim proceeding with her complaint material to his motive in restraining her, a fact genuinely in issue. As to prong two, he found that the statement was similar in kind and reasonably close in time to the offense, as it was uttered during the commission of the offense. As to prong three, he found that defendant's prior conviction occurred about four or five years earlier, but he was on parole status at the time of this offense. Finally, as to prong four, he found that the statement defendant gave to the police was highly probative of his motive in restraining the victim. He concluded that any prejudice was substantially outweighed by the probative value of the evidence. He excluded any information as to the substantive conviction and sentence; thus, only defendant's parole status was admissible.

With respect to the March 10, 2007, statement, the judge found that "any reference to parole . . . can fairly be redacted without adversely affecting either party in interest in this particular matter" and denied the State's Rule 404(b) motion with respect to it. The judge explained:

There are references to incarceratory expo sure, but I don't know that any comments by [defendant] to that extent implicate, or reveal, or suggest prior convictions' parole status. Stated otherwise, the statement seems to have been given and taken post-Miranda, voluntarily, intelligently. There's no challenge to the statement in that regard.

The judge directed the prosecutor to prepare and submit a form of order memorializing his decision.

At the time of trial, over defendant's objection, the prosecutor examined the victim with respect to an exculpatory statement she gave to defendant's attorney on April 17, 2007, recanting her prior statements to the police. In it, the victim told defendant's attorney that the injuries she sustained on May 23, 2006, were the result of a physical altercation with her mother, not defendant; and she had lied to her stepfather, the 9-1-1 operator, and the police about being assaulted by defendant and being locked in her bedroom by him. She further related to defendant's attorney that the door to her bedroom was open and she was free to leave her house at any time. At trial, she explained that she gave this statement because she was afraid that the Division of Youth and Family Services would take custody of her children.

Having impeached the victim's trial testimony with this statement, the prosecutor then rehabilitated her with a state ment she gave on September 13, 2007. She told Kimberly Newton-Fulk, a domestic-violence victim advocate in the Victim Witness Office, she wanted to tell the truth. Newton-Fulk contacted the prosecutor's office, which arranged to have Detective Matthew Leusner interview the victim and take her sworn statement. Newton-Fulk was present at the interview, but did not participate in the statement given by the victim.

In her September 13, 2007, statement to Leusner, the victim essentially recanted her April 17, 2007, statement exculpating defendant. She explained that the original version of the May 23, 2006, incident, which she told to the police at the scene and at the hospital, was the truth, and that the April 17, 2007, statement was not true and was written at the direction of defendant.

This statement was played to the jury during Leusner's testimony. The victim claimed at trial she gave the exculpa tory statement to defendant's attorney because her mother and Newton-Fulk told her that she could be charged with perjury for changing her initial inculpatory statement. However, in her Sep tember 13 statement, she explained that defendant told her she was the only one who "could fix him from going to court," mean ing she had to change her statement. She testified that defen dant told her what to write in the statement she gave to his attorney. She did so because she was afraid of his physical reactions when things did not go his way.

The victim also testified that she wrote a letter addressed to the court, the prosecutor's office, and the Public Defender in December 2007, wherein she recanted her September statement and resubmitted her April 17, 2007, statement as the truth.

At trial during cross-examination, notwithstanding the vic tim's various and contradictory post-incident statements, she testified that she was telling the truth at trial, which was that defendant had beaten her and the version she first gave the police and her September 13, 2007, statements were the truth. The cross-examination thoroughly explored the inconsistencies in the victim's various statements. She denied telling the police initially that defendant choked her and insisted that she was telling the truth at trial.

In addition to the police officers who testified to their activities described above, Parole Officer Frank Maloy testified that he was defendant's parole supervisor. Defendant had been placed on parole on December 10, 2003. One condition of parole was that defendant was to obey all laws. He remained on parole on May 23, 2006, and throughout March 2007. The judge gave a limiting instruction to the jury respecting Maloy's testimony.

After closing arguments and the judge's instructions on the law to be applied, the jurors deliberated and returned a verdict. It acquitted defendant of aggravated assault but found him guilty of the lesser-included offense of simple assault under count one. It also found defendant guilty of third-degree criminal restraint under count two; third-degree witness tamper ing under count three; and harassment under count five, renumbered as count four during the charge. Immediately there after, the judge found that, as a result of having been con victed of an indictable offense, defendant had been on parole on May 23, 2006, and March 8, 2007. The judge entered a guilty verdict on new count four of the indictment charging fourth-degree harassment while on parole.

Defendant moved for a judgment of acquittal not withstanding the verdict or for a new trial, which was heard on April 17, 2008. He urged there was no evidence of the victim being exposed to serious bodily injury in connection with the criminal restraint and the police were present during the entire time of the restraint. He argued that the finding of simple assault rather than aggravated assault was utterly inconsistent with the conviction on the third-degree criminal restraint. This was so, he contended, because the jury rejected serious bodily injury in acquitting him of aggravated assault but had to have found a risk of serious bodily injury in convicting him of third-degree criminal restraint.

The judge denied defendant's motion, finding that convic tions under N.J.S.A. 2C:12-1a(3) and 2C:13-2 were not necessar ily, logically, and legally incompatible because the jury could have convicted defendant of an "attempt by physical menace to put another in fear of imminent serious bodily injury." Thus, the judge found no basis to set aside the verdict on count two or to order a new trial on that count. He concluded "that there's more than adequate factual content in the record to have allowed . . . this deliberating jury[] to have reached those verdicts and to have done so in a fashion that is factually con sistent and legally correct." The judge thereafter sentenced defendant to the aggregate term of nine years in prison with one-half to be served without parole as described above. This appeal followed.

Defendant raises the following issues for our consideration:

POINT I - THE DEFENDANT'S CONVICTIONS SHOULD BE REVERSED BECAUSE THEY WERE THE RESULT OF PROSECUTORIAL VINDICTIVENESS AGAINST THE DEFENDANT.

POINT II - THE TRIAL COURT'S JURY VOIR DIRE RESULTED IN A "POLITICALLY CORRECT" JURY PANEL AND PREJUDICED THE DEFENDANT'S SIXTH AMENDMENT RIGHT TO AN IMPARTIAL JURY.

POINT III - THE TRIAL COURT COMMITTED HARM FUL ERROR IN DENYING THE DEFENDANT'S MOTION TO BAR DR. LISCHICK'S TESTIMONY.

POINT IV - SINCE THE TRIAL COURT PERMITTED THE STATE TO ADMIT EXPERT TESTIMONY FROM WHICH THE JURY COULD INFER THAT [THE VIC TIM'S] APRIL 17, 2007, STATEMENT WAS NOT RELIABLE BECAUSE SHE WAS THE VICTIM OF BAT TERED WOMAN'S SYNDROME, THE PROSECUTOR SHOULD HAVE BEEN ESTOPPED FROM ADMITTING THE STATEMENT INTO EVIDENCE AS A PRIOR INCONSIS TENT STATEMENT FOR PURPOSES OF IMPEACHING HER TRIAL TESTIMONY (RAISED IN PART BELOW).

POINT V - THE TRIAL COURT COMMITTED HARMFUL ERROR IN ADMITTING EVIDENCE THAT THE DEFEN DANT WAS ON PAROLE AS PROOF OF MOTIVE UNDER N.J.R.E. 404(B).

POINT VI - THE TRIAL COURT COMMITTED HARMFUL ERROR IN PRECLUDING [THE VICTIM] FROM INVOK ING HER SPOUSAL PRIVILEGE NOT TO TESTIFY AGAINST THE DEFENDANT.

POINT VII - THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS VIOLATED BY THE PROSECUTOR.

(A) THE PROSECUTOR COMMITTED IMPROPRIETY IN SUMMATION.

(B) THE PROSECUTOR FAILED TO PRO VIDE THE DEFENDANT WITH TIMELY DISCOVERY.

POINT VIII - THE DEFENDANT'S RIGHT TO REMAIN SILENT WAS UNDERMINED BY THE TRIAL COURT'S JURY CHARGE (NOT RAISED BELOW).

POINT IX - THE DEFENDANT'S CONVICTIONS FOR CRIMINAL RESTRAINT ON COUNT TWO AND WITNESS TAMPERING ON COUNT THREE WERE AGAINST THE WEIGHT OF THE EVIDENCE PRESENTED BELOW AND REPRESENTS A DENIAL OF JUSTICE UNDER THE LAW.

POINT X - THE AGGREGATE 9 YEAR CUSTODIAL SENTENCE WITH 4 YEARS OF PAROLE INELIGIBIL ITY WAS MANIFESTLY EXCESSIVE AND AN ABUSE OF JUDICIAL DISCRETION.

III.

We begin with defendant's concern about the testimony of Dr. Lischick. Defendant contends the judge erred in denying his motion to bar Dr. Lischick's expert testimony because the expert never evaluated the victim and did not make a diagnosis of BWS. As such, there was no factual basis for her expert opinions. He asserts there was no evidence of any prior acts of domestic vio lence committed by defendant against the victim and the victim was never diagnosed with BWS. He urges that the facts of this case are clearly distinguishable from those in Town send, supra, 186 N.J. at 494-95, because there the victim was deceased and there was "copious and harrowing eyewitness testi mony from the victim's children describing numerous instances of domestic violence by defendant against the victim," id. at 499. Here, he contends, the victim was alive and the jury could readily determine the credibility of her various inculpatory and exculpatory statements without the aid of an expert. Thus, Dr. Lischick's testimony served only to impeach the victim's recantations and exculpatory trial testimony.

Defendant also contends that the prosecutor's summation exceeded legal boundaries when, without any supporting evidence or testimony in the record, "[she] clearly suggested that [the victim] was a victim of [BWS] because there were prior episodes of domestic battering and because the defendant was coercive and controlling." He argues that, "[i]n conjunction with the prose cutor's summation, the admission of Dr. Lischick's testimony prejudiced the defendant because, despite the trial court's lim iting instructions . . . , it permitted the jury to assume that since [the victim] was a battered woman, her recantations and exculpatory explanations were not true."

In State v. Kelly, 97 N.J. 178, 187 (1984), the Supreme Court, in the context of a claim of BWS self-defense to the killing of the batterer, held for the first time that

a battering relationship embodies psycho logical and societal features that are not well understood by lay observers. Indeed, these features are subject to a large group of myths and stereotypes. It is clear that this subject is beyond the ken of the aver age juror and thus is suitable for explanation through expert testimony.

[Id. at 209 (footnote omitted).]

After examining the law governing self-defense and conclud ing that expert testimony regarding BWS was relevant to that defense, id. at 197-207, Chief Justice Wilentz noted that N.J.R.E. 56(2) (now N.J.R.E. 702) provided:

that an expert may testify "as to matters requiring scientific, technical or other specialized knowledge if such testimony will assist the trier of fact to understand the evidence or determine a fact in issue." In effect, this Rule imposes three basic requirements for the admission of expert testimony: (1) the intended testimony must concern a subject matter that is beyond the ken of the average juror; (2) the field tes tified to must be at a state of the art such that an expert's testimony could be suffi ciently reliable; and (3) the witness must have sufficient expertise to offer the intended testimony. See N.J. Rules of Evi dence (Anno. 1984), Comment 5 to Evid. R. 56.

[Id. at 208 (footnote omitted).]

Chief Justice Wilentz went on to observe that "[t]he primary jus tification for permitting expert testimony is that the average juror is relatively helpless in dealing with a subject that is not a matter of common knowledge." Id. at 209 (citing Angel v. Rand Express Lines, Inc., 66 N.J. Super. 77, 85 (App. Div. 1961)). As a consequence, "the proponent of expert testimony must demonstrate that testimony would 'enhance the knowledge and understanding of lay jurors with respect to other testimony of a special nature normally outside of the usual lay sphere.'" Ibid. (citing State v. Griffin, 120 N.J. Super. 13, 20 (App. Div.), certif. denied, 62 N.J. 73 (1972)).

In State v. J.Q., 130 N.J. 554, 574 (1993), the Supreme Court explained the rationale for allowing such testimony:

[E]xpert scientific evidence concerning "battered-woman's syndrome" does not aid a jury in determining whether a defendant had or had not behaved in a given manner on a particular occasion; rather, the evidence enables the jury to overcome common myths or misconceptions that a woman who had been the victim of battering would have surely left the batterer. Thus, the evidence helps the jury to understand the battered woman's state of mind.

See also State v. Ellis, 280 N.J. Super. 533, 541-44 (App. Div. 1995) ("[A]pplication [of BWS] is limited to explaining a victim's reactions or late reporting of the events and not as evidence that the crime occurred" where victim testified to many incidents of controlling behavior, beatings, and threats as well as unfounded accusations and suspicions over a five-year period and expert had a two-and-one-half-hour interview with the victim.); State v. Frost, 242 N.J. Super. 601, 613-14 (App. Div.), certif. denied, 127 N.J. 321 (1990) (evidence of BWS can be used to bolster a victim's credibility in the State's case in chief).

Recently, in Townsend, supra, 186 N.J. at 479, the State presented expert testimony without a diagnosis of BWS to prove that the decedent's dying declaration exonerating defendant was not credible. On appeal, we reversed the conviction because we "concluded that although testimony in respect of [BWS] satisfied the requirements of New Jersey Rule of Evidence 703, the testimony that battered women not diagnosed with [BWS] exhibit characteristics similar to women with the syndrome did not." Id. at 494 (citing State v. Townsend, 374 N.J. Super. 25, 55 (App. Div. 2005)). We "also found that it was plain error to admit those discrete expert opinions that were net opinions." Ibid. (citing Town send, supra, 374 N.J. Super. at 56). The Supreme Court con cluded "that the characteristics of battered women with or with out a diagnosis of [BWS] are sufficiently reliable to support expert testimony as an aid to the jury." Id. at 493.

The Court held that the opinion of the State's expert that women with BWS commonly lie about the source of their injuries was not a net opinion because it was based upon medical information and the expert's education and considerable experience counseling battered women. Id. at 494-95. The Court upheld the admission of such testimony because it satisfied three basic requirements for the admission of expert testimony set forth in N.J.R.E. 702: (1) "the ramifications of a battering relation ship are beyond the ken of the average juror," id. at 491; (2) "that the characteristics of battered women with or without a diagnosis of [BWS] are sufficiently reliable," id. at 493; and (3) "based on her training and experience, [the prosecution's expert] was qualified to give expert testimony on battered women and [BWS]," ibid.

Here, Dr. Lischick explained that battering involves a malevolent course of action: "It involves strategies of isolation, intimidation, depravation of rights and freedoms, and tactics of abuse," which can be psychological, sexual, or physical. She defined battering as a coercive control pattern and the effects of that pattern on the victim, that is, learned helplessness. Battering goes beyond an episodic assault and involves all of the above strategies in a pattern over time. She acknowledged that the mere fact that physical violence occurs does not automatically create a battered woman because isolation from other people on more than one occasion is a critical component of battering. Where there is no isolation, there is no battering. She also acknowledged that a wife may fabricate a charge against her husband and then recant; the recantation itself would not prove she was a battered spouse. She opined that it was not unusual for a battered spouse to not want to testify on behalf of the State, most often because she is afraid or loves the batterer or because of her culture. It would not, in her opinion, be unusual for the victim to minimize the violence or to recant her initial version of events.

We have found no case where expert testimony respecting the characteristics of a battered woman and BWS was presented in the absence of any evidence of a coercive control pattern and its effects and an expert opinion as to whether the victim was battered. Generally, the woman is evaluated by the expert. See, e.g., Kelly, supra, 97 N.J. at 196-97; State v. McClain, 248 N.J. Super. 409, 414-15 (App. Div.), certif. denied, 126 N.J. 341 (1991); Frost, supra, 242 N.J. Super. at 611-12. Where that is not possible, as in Townsend, there is evidence of systematic abuse. State v. Gartland, 149 N.J. 456, 472-73 (1992). Unlike Townsend where the State had to rebut a dying declaration that the defendant did not cause the victim's injuries, the victim here initially called 9-1-1 and accused defendant of inflicting her injuries; repeated the accusation in the hospital; repeated it again on September 13, 2007, at the police station; and then took the stand at trial and did so again. Although she recanted at least once, she explained why she did so at trial and reiterated that the recantation was false.

The opinions offered by Dr. Lischick were simply not sufficient to be relevant to the facts of this case. "'Relevant evidence' means evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. Relevancy is "the hallmark of admissibility." State v. Gookins, 263 N.J. Super. 58, 63 (App. Div. 1993), rev'd on other grounds, 135 N.J. 42 (1994); accord, State v. Darby, 174 N.J. 509, 519 (2002). Probative value is "the tendency of evidence to establish the proposition that it is offered to prove." State v. Wilson, 135 N.J. 4, 13 (1994) (citations omitted).

Here, the testimony of Dr. Lischick merely established that battered spouses may falsely recant their accusations. It did not tend to prove that this victim's recantations were false because Dr. Lischick did not opine that the victim was a battered spouse. Even if the victim's statement that she feared defendant's physical reactions to not getting his way may have been relevant to an expert opinion that she was a battered spouse, and we do not doubt that it might be, Dr. Lischick never opined the victim was a battered spouse. And it is clear from the whole of Dr. Lischick's testimony that this determination requires expertise beyond the ken of the average juror. Without such an opinion, the scientific fact that battered women tend to recant their accusations did not tend to prove that this victim's recantations were false. There was no logical connection between the proffered evidence and the fact at issue the falsity of the exculpatory statements. See State v. Bakka, 176 N.J. 533, 545 (2003) ("In determining whether evidence is relevant, the inquiry should focus on the logical connection between the proffered evidence and a fact in issue.") (internal quotations and citation omitted). As a result, Dr. Lischick's testimony was not relevant, admissible evidence and the judge erred in admitting it.

Of course, not every erroneous admission of evidence requires a new trial. "Any error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result . . . ." R. 2:10-2. In other words, the error must be of sufficient magnitude to raise a reasonable doubt as to whether it led the jury to a result it would otherwise not have reached. State v. Burns, 192 N.J. 312, 341 (2007); State v. Brown, 190 N.J. 144, 160 (2007); State v. Lewis, 389 N.J. Super. 409, 419 (App. Div.), certif. denied, 190 N.J. 393 (2007); State v. Loyal, 386 N.J. Super. 162, 176 (App. Div.), certif. denied, 188 N.J. 356 (2006). However, we are persuaded that the admission of Dr. Lischick's testimony without the required logical connection to the evidence does require a new trial.

IV.

Defendant asserts that his right to a fair trial was violated by the prosecutor's summation. Specifically, he contends that the prosecutor "suggested that the jury could reach its own conclusions as to how many times prior to this incident the defendant had battered [the victim] despite the fact that no evidence was admitted concerning prior instances of domestic violence."

The State acknowledges that "[t]he prosecutor should not have insinuated that there were other instances of domestic violence," but

given that the trial court thoroughly instructed the jury to disregard any references by the attorneys to facts that were not in evidence, . . . the jury did not find [d]efendant guilty beyond a reasonable doubt of aggravated assault, and the evidence against [d]efendant as to the remaining charges was overwhelming, the prosecutor's comment was not clearly and unmistakably improper and did not substantially prejudice [d]efendant's fundamental right to have a jury fairly evaluate his defense.

In considering the issue of prosecutorial excess, we first determine whether the prosecutor exceeded the limits on permitted argument. State v. Frost, 158 N.J. 76, 83 (1999). If so, reversal is only warranted where the excess is so egregious that it deprived the defendant of a fair trial. State v. Timmendequas, 161 N.J. 515, 575 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). Thus, reversal is warranted only when the prosecutor's misconduct "substantially prejudice[s] the defendant's fundamental right to have the jury fairly evaluate the merits of his defense." State v. Bucanis, 26 N.J. 45, 56, cert. denied, 357 U.S. 910, 78 S. Ct. 1157, 2 L. Ed. 2d 1160 (1958).

Prosecutors are "expected to make vigorous and forceful closing arguments to juries." Frost, supra, 158 N.J. at 82 (citation omitted). They "are afforded considerable leeway in closing arguments as long as their comments are reasonably related to the scope of the evidence presented." Ibid. (citations omitted). Still, a prosecutor's summation "is limited to commenting upon the evidence and the reasonable inferences to be drawn therefrom." State v. Swint, 328 N.J. Super. 236, 261 (App. Div.), certif. denied, 165 N.J. 492 (2000). "[Prosecutors] may not go beyond the facts before the jury." State v. Roach, 146 N.J. 208, 219, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996). Even so, "[n]ot every instance of [excess] in a prosecutor's summation will require a reversal of a conviction. There must be a palpable impact." Ibid. (citation omitted). Furthermore, a prosecutor's remarks may be harmless if they are only a response to remarks made by defense counsel. State v. DePaglia, 64 N.J. 288, 297 (1973).

Defendant contends such excess occurred when the prosecutor "suggested that the jury could reach its own conclusion as to how many times prior to this incident the defendant had battered [the victim] despite the fact that no evidence was admitted concerning prior instances of domestic violence." The prosecutor's actual comments were:

Let's focus a little bit about [defendant], on [defendant]. . . . He told you he walked out the door and threw the phone at the car door. He shattered and punched a hole, he shattered the whole window. He told her you disgraced me. He . . . grabbed her around the collar, got it pretty tight, . . . had [his] forearm against her jawbone, on top of her on the bed. He admits he punched her in the arm, slapped her in the face. He's calling her names. He tells you what names he called her. Do you think this is a one time episode in that house? Now I'm going to leave you. You're not going to have a pot to piss in and I'm taking my two daughters. You don't think that's coercive and controlling? (Emphasis added.)

. . . .

He tells her, this is my house, I pay the bills. You don't like it; it's my way or the highway. I'm the man. If you don't like it, so be it. You think that doesn't happen every day in that house? You think it only happened on March 10th, 2007 when he was talking to [the victim's mother]? (Emphasis added.)

Immediately following the prosecutor's summation, and after the jury had been excused, defense counsel moved for a mistrial based on the above comments. The prosecutor responded as follows:

I believe that my comments were focused at the nature and language that [defendant] uses in his own statement, asking if that was the first time, perhaps, that they--if he spoke that way more regularly. I didn't indicate there were any other acts of domestic violence. I didn't indicate that he may or may not have ever punched her on any other occasion. In addition, in his closing argument, [defense counsel] flat out told the jury that the reason that they didn't hear of any other acts of domestic violence is because there were none. And that's certainly not true.

As to the absence of any prior incidents of domestic violence between the victim and defendant, the prosecutor stated:

With the exception of [the victim's] own testimony. She . . . knew what would happen if she had let the police in. That indicates a pattern of behavior. And that she was afraid of his physical responses when things didn't go his way. And that was in her statement that was played before the jury.

In denying defendant's motion for a mistrial, the judge explained:

The objection really relates to the [p]rosecutor's, as phrased by [defense] counsel, invitation to the jury to speculate as to whether or not such conduct as the State claims here occurred and has occurred on prior occasion. There is no specific 404[(b)] evidence in the record. I am satisfied, however, that a curative instruction consistent with the model charges will sufficiently insulate the jury from the speculation and I will take care to administer that, to the extent needed, curative instruction. The comments by the [p]rosecutor complained of do not relate to any claim of specific prior acts on the part of the [d]efendant. So, the curative instruction to disregard any invitation to speculate will be sufficient I'm satisfied. I deny the motion for a mistrial.

In evaluating the prosecutor's comments, we recognize that the victim testified she wanted to quash the rumor of her infidelity before defendant heard about it "because [she] kn[e]w that he would go and go after the person before he even talked to her about it." She also told Leusner on the day of the incident that she was afraid that defendant was going to kill her after the police left and was still afraid after defendant was arrested. She admitted that "[t]here is [sic] moments when I'm not scared of him and there is [sic] moments when I'm scared of him." She also testified that on September 17, 2007, over a year after the incident and a year after she married defendant, she was still scared of him: "Yes, I'm scared of how his physical reaction's [sic] are when things don't go his way."

Despite this evidence, we are satisfied that the prosecutor should not have posed those two above-emphasized rhetorical questions to the jury because there was in actuality no evidence of any prior assaults or prior coercion. We cannot say that this "invitation to the jury to speculate" had no "palpable impact" impact on the jury's verdict, see Roach, supra, 146 N.J. at 219, particularly because the testimony of Dr. Lischick should not have been admitted. We are not satisfied that the judge's curative instruction insulated the jury from any improper speculation. Defendant's motion for a mistrial should have been granted.

V.

Finally, we must address the issue raised by defendant with respect to the admissibility of his parole status. Defendant contends that the trial court erred in ruling that the State could admit evidence, pursuant to N.J.R.E. 404(b), that he was on parole as proof of motive for the alleged criminal-restraint and witness-tampering charges. Specifically, defendant objected to the admission of his May 23, 2006, statement to McClure, and his March 10, 2007, statement to Nelson. He argues that the evidence of his parole status was inadmissible because the State failed to satisfy the second and fourth prongs of Cofield because: (1) the proffered other-crimes evidence was inflammatory; (2) the prejudicial impact overwhelmingly outweighed its probative value; and (3) even the most precise limiting instruction would be ineffective. He also notes that it was not his prior criminal conduct that the State sought to admit, but rather his "status" as a parolee, which was highly prejudicial because the jury was likely to consider that evidence as proof that defendant was a bad person who was predisposed to commit crimes.

Evidence of other crimes, bad acts, or civil wrongs is admissible only if it is relevant to prove a fact genuinely in dispute "and the evidence is necessary as proof of the disputed issue." State v. Hernandez, 170 N.J. 106, 118-19 (2001). Courts should exclude such evidence when it is offered solely to establish the forbidden inference of propensity or predisposition to commit a crime because it is highly inflammatory, having the "unique tendency to turn a jury against the defendant." State v. Stevens, 115 N.J. 289, 300-02 (1989). In that regard, N.J.R.E. 404(b) provides:

Except as otherwise provided by Rule 608(b), evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.

The purpose of N.J.R.E. 404(b) is to ensure that juries do not convict defendants, or punish them more harshly, because they conclude that the defendant's prior crimes or bad acts indicate bad character and a propensity to break the law. State v. DiFrisco, 137 N.J. 434, 498 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996).

In Cofield, the Court established a four-part test to determine the admissibility of other-crimes evidence:

"1. The evidence of the other crime must be admissible as relevant to a material issue;

2. It must be similar in kind and reasonably close in time to the offense charged;

3. The evidence of the other crime must be clear and convincing; and

4. The probative value of the evidence must not be outweighed by its apparent prejudice."

[Cofield, supra, 127 N.J. at 338 (quoting Abraham P. Ordover, Balancing The Presumptions Of Guilt And Innocence: Rules 404(b), 608(b), And 609(a), 38 Emory L.J. 135, 160 (1989) (footnote omitted)).]

The decision to admit evidence of other crimes or bad acts falls within the sound discretion of the trial court, and that decision should be disturbed only where there is a "'clear error of judgment.'" Marrero, supra, 148 N.J. at 483 (quoting DiFrisco, supra, 137 N.J. at 496-97).

In State v. Williams, 190 N.J. 114, 131 (2007), the Supreme Court explained:

The second Cofield prong, requiring that the "other acts" be similar in kind and reasonably close in time, was pertinent to the facts presented in that case. In Cofield, supra, the State sought to introduce evidence establishing the defendant's constructive possession of drugs during an illegal-drug street encounter that occurred subsequent to the drug incident that was the subject of the prosecution. 127 N.J. at 330, 605 A.2d 230. The State sought to admit that similar and close-in-time other-crimes evidence as relevant to prove the defendant's possession of drugs in the charged offense, an element that was hotly contested. Id. at 339, 605 A.2d 230. The test that the Court ultimately fashioned included an aspect that plainly addressed the specific drug evidence at issue in Cofield.

The requirement set forth as prong two of Cofield, however, is not one that can be found in the language of Evidence Rule 404(b). Cofield's second prong, therefore, need not receive universal application in Rule 404(b) disputes. Its usefulness as a requirement is limited to cases that replicate the circumstances in Cofield. In the instant analysis, application of prong two serves no beneficial purpose and, therefore, we disregard it as unnecessary.

In light of this explication, we are satisfied that the admission of defendant's parole status did not violate the second prong of Cofield.

The fourth Cofield prong is rooted in N.J.R.E. 403:

Except as otherwise provided by these rules or other law, relevant evidence may be excluded if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence.

"[T]he balancing test of Cofield's fourth prong . . . incorporates the traditional balancing test of Rule 403." Hernandez, supra, 170 N.J. at 127. Whether the proffered evidence of defendant's parole status was "outweighed by its prejudicial effect on defendant must be pragmatically evaluated in the context in which that evidence [will be] offered." Marrero, supra, 148 N.J. at 491; Stevens, supra, 115 N.J. at 303. Here, it was offered to prove defendant's motive for the criminal restraint and witness tampering. We recognize that

New Jersey courts generally admit a wider range of evidence when the motive or intent of the accused is material. State v. Rogers, 19 N.J. 218, 228 (1955). That includes evidentiary circumstances that "tend to shed light" on a defendant's motive and intent or which "tend fairly to explain [a defendant's] actions," even though they may have occurred before the commission of the offense [for which the defendant is on trial].

[State v. Covell, 157 N.J. 554, 565 (1999) (quoting Rogers, supra, 19 N.J. at 228).]

We also recognize that "any evidence which logically tends to show a motive, or which fairly tends to explain the conduct of the accused, should be permitted," and "evidence as to motive is admissible even though it may be prejudicial in the sense that it will arouse or inflame the jury against the defendant." State v. Carter, 91 N.J. 86, 102, 106 (1982) (quotations and citation omitted).

However, in this case, the motive for the criminal restraint and witness tampering could have been more than adequately shown with the references to defendant's prior record and parole status excised. Specifically, he admitted that, when he learned the victim had called 9-1-1, he said to her, "[N]ow . . . you want to put me back in jail, right?" The deletion of the word "back" does not harm this evidence of motive defendant wanted to avoid jail. The victim's statements, as recounted by defendant to McClure, respecting the impact on her of his prior imprisonment were simply not evidence of motive and could have easily been excised as well. We are satisfied that evidence of defendant's parole status should have been excluded because its prejudicial effect outweighed its probative value.

VI.

After carefully reviewing the record in the light of the written arguments advanced by the parties, we conclude that the issues presented by defendant in Points I, VI, and VIII "are without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). The issues raised by defendant in Points II, IV, IX, and X are moot in light of our disposition of this appeal.

 
Reversed and remanded for a new trial.

The victim had a third child, who was the youngest of her children. Defendant was not the father of this child.

Although the tape of this call was played for the jury, the judge did not ensure that the court clerk complied with Rule 1: 2-2 by recording the call verbatim on the official record of pro ceedings. No official transcript of the call was marked into evidence, but an unofficial transcript was included in the appendix on appeal.

Although this call was also played for the jury, the clerk also did not make a verbatim record of this call. Additionally, we do not even have an unofficial transcript of this call in the appendix on appeal.

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

They had been engaged prior to May 23, 2006.

The record does not contain any orders entered on either of the judge's decisions respecting the admissibility of Dr. Lischick's testimony. We presume there were no such orders and that the judge's decisions are reviewable on appeal from the judgment of conviction and sentence.

State v. Cofield, 127 N.J. 328 (1992).

State v. Marrero, 148 N.J. 469 (1997).

Like the judge's other in limine ruling and the denial of defen dant's motion for reconsideration, there is no order in the record on appeal respecting the judge's Rule 404(b) determina tion. As a result, we presume it is reviewable on appeal from the judgment of conviction and sentence.

Once again, the playing of the statement to the jury was not recorded verbatim and we have only an unofficial transcript. Its contents have been incorporated into the facts described in this opinion.

The victim's advocate testified at trial and denied ever saying that the victim would be prosecuted for perjury.

This testimony was not further developed at trial.

This letter was not provided in the appellate record.

Count four had been dismissed on February 1, 2008, on motion of defendant.

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A-6270-07T4

March 4, 2010