STATE OF NEW JERSEY v. JOHN MAHONEY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2540-11T2

STATE OF NEW JERSEY,

Plaintiff-Appellant,

V.

JOHN MAHONEY,

Defendant-Respondent.

____________________________________________________

November 2, 2012

Argued September 25, 2012 - Decided

Before Judges Fisher, Alvarez and St. John.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 08-06-0096.

Nancy A. Hulett, Assistant Prosecutor, argued the cause for appellant (Bruce J. Kaplan, Middlesex County Prosecutor, attorney; Ms. Hulett, of counsel and on the brief).

Richard D. Barker, Deputy Public Defender, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney; Mr. Barker and Kathleen Wells, of counsel and on the brief).

PER CURIAM

We granted leave to appeal an order by which, after conducting a hearing pursuant to N.J.R.E.104, the trial judge determined that defendant -- facing trial for the murder of his father -- would be entitled to offer expert testimony that he suffers from battered child syndrome or post-traumatic stress disorder, or both. We affirm the order in that limited respect and decline to address the State's contention that this anticipated testimony is insufficient, as a matter of law, to support a self-defense or defense-of-others theory.

The State has charged that, on December 27, 2007, the then nineteen-year-old defendant shot and killed his father, Jerry Mahoney,1as he sat in a reclining chair in their home. During discovery, defendant's expert, Dr. Edward J. Dougherty, provided two reports in which he extensively outlined the information underlying his conclusions that defendant suffers from post-traumatic stress disorder (PTSD) and has exhibited behavior consistent with battered child syndrome.

Dr. Dougherty asserted in the first report that, "[a]s a result of such strong feelings of helplessness," defendant "did not flee his situation because he feared his father would find him using police resources and harm him, and/or [sic] that his father would harm his mother." In his second report, Dr. Dougherty amplified his earlier views and drew the following conclusion:

On the date in question the combination of [defendant's] PTSD as a result of the abuse perpetrated by his father, hypervigilance as a result of the PTSD, and his experiences as an abused person combined to lead [defendant] to commit an act of homicide against his father. [Defendant's] perception was that harm was imminent as soon as his father discovered he had withdrawn from school. [Defendant] believed that his life was in danger and that the threat posed by his father rose to such a level that he acted in self-defense on the date in question due to his perception that the threat was certain and would be soon.

The State claims that our intervention at this pretrial stage is required to address that part of the trial judge's oral decision in which he held that defendant ought to be permitted to present his self-defense or defense-of-others theories, or both, to the jury; the State forcefully asserts that the facts relied upon by Dr. Dougherty are insufficient to prove the type of imminence required by the statutes governing those defenses. SeeN.J.S.A.2C:3-4(a) (declaring justifiable the use of force when the actor reasonably believes force is "immediately necessary" for the protection of himself against the use of unlawful force by another); N.J.S.A.2C:3-5(a)(1) (incorporating the provisions of N.J.S.A.2C:3-4 in declaring the circumstances that justify an actor's use of force against another for the protection of a third person). The State contends that the factual scenario relied on by Dr. Dougherty suggests only that defendant's father had allegedly threatened harm to defendant if and when he learned that defendant had performed poorly in college while failing to appreciate the fact that defendant's father securing of that knowledge was not imminent; indeed, the State's theory is that defendant's father was sleeping when he was shot, further suggesting, in the State's view, that the father posed no immediate threat to defendant.

Our grant of leave to appeal presupposed that the trial judge's ruling at the pretrial hearing was conclusive on whether the facts described by Dr. Dougherty supported the "immediately necessary" element of both N.J.S.A.2C:3-4(a) and N.J.S.A.2C:3-5(a)(1). And, indeed, in his oral decision, the trial judge did hold that whether defendant's alleged actions were "immediately necessary" presented "a factual determination" for the jury's resolution and that he would not "strip this defendant of his defense based upon this [c]ourt's understanding of the word immediate." But the order we granted leave to review does not memorialize that holding or draw any conclusions regarding the sufficiency of defendant's anticipated assertion of self-defense or defense of others in this prosecution. The judge only denied the State's motion to bar Dr. Dougherty's expert opinion that defendant suffered from PTSD and battered child syndrome. We find no error in that specific discretionary determination. SeeCarey v. Lovett, 132 N.J.44, 64 (1993).

In short, although the judge's decision suggests that the jury will ultimately be permitted to consider whether defendant acted in his own defense or the defense of his mother, that determination has not been reduced to an order. Because appellate courts review orders not opinions, seeDo-Wop Corp. v. City of Rahway, 168 N.J.191, 199 (2001); Heffner v. Jacobson, 100 N.J.550, 553 (1985); Price v. Hudson Heights Dev., LLC, 417 N.J. Super.462, 467 (App. Div. 2011), the sufficiency of self-defense or defense of others in this prosecution is not before us.

Nor do we view the trial judge's holding as precluding his further examination of the availability of self-defense or the defense of others. Indeed, whether the evidence will rationally permit such a jury instruction depends upon the evidence that is adduced at a trial that has yet to occur. SeeState v. Garron, 177 N.J.147, 180 n.5 (2003), cert. denied, 540 U.S. 1160, 124 S. Ct. 1169, 157 L. Ed. 2d 1204 (2004); State v. Handy, 421 N.J. Super. 559, 602-03 (App. Div. 2011), certif. granted, 209 N.J.99 (2012). Wading into that controversy at this stage would be premature indeed. Accordingly, we neither offer nor intimate any view about whether evidence -- that has yet to be offered let alone developed at trial -- would permit the jury to consider the defenses in question or, for that matter, any other defenses. We only conclude that the trial judge did not abuse his discretion in determining that Dr. Dougherty could provide expert testimony regarding PTSD and the battered child syndrome.

1The victim was a police officer; the weapon used to kill him was his own service revolver.