STATE OF NEW JERSEY v. LEONARD SALESKY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4946-04T34946-04T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LEONARD SALESKY,

Defendant-Appellant.

_________________________________________________

 

Submitted May 31, 2006 - Decided July 26, 2006

Before Judges Axelrad and Payne.

On appeal from Superior Court of New

Jersey, Law Division, Burlington County,

I-03-05-0704.

Lord & Whalen, attorneys for appellant

(Robin Kay Lord and Richard W. Berg,

of counsel and on the brief).

Robert D. Bernardi, Burlington County

Prosecutor, attorney for respondent

(Missy Piccioni, Assistant Prosecutor,

of counsel, Ms. Piccioni and Jason

Saunders, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Leonard Salesky was convicted by a jury of first-degree attempted murder, N.J.S.A. 2C:5-1, 2C:11-3a(1) and (2), second-degree aggravated assault, N.J.S.A. 2C:12-1b(1), second-degree burglary, N.J.S.A. 2C:18-2a(1), and third-degree terroristic threats, N.J.S.A. 2C:12-3b, upon evidence that he had broken into the home of his former wife and had assaulted and attempted to strangle her. He was sentenced to a fifteen-year term, subject to an eighty-five percent parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for the attempted murder and to a concurrent seven-year term, subject to NERA, for the burglary. The remaining convictions were merged for purposes of sentencing. Defendant appeals both his conviction and sentence.

On appeal, defendant presents the following arguments:

POINT I

ADMISSION OF TESTIMONY PURSUANT TO N.J.R.E. 404(b) CONCERNING APPELLANT'S PRIOR BAD CONDUCT REMOTE IN TIME VIOLATED HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL, AND THE PROSECUTOR'S QUESTIONS CONCERNING THIS INADMISSIBLE EVIDENCE CONSTITUTED MISCONDUCT.

POINT II

THE TRIAL COURT DENIED APPELLANT'S CONSTITUTIONAL RIGHT TO DUE PROCESS BY LIMITING THE TESTIMONY OF THE DEFENSE PSYCHIATRIST TO THE CONTENT OF DISCOVERY REPORTS, AND THE PROSECUTOR EXPLOITED AND COMPOUNDED THE ERROR IN SUMMATION.

POINT III

THE LIMITATION PLACED ON APPELLANT'S TESTIMONY AND THE TRIAL COURT'S REFUSAL TO ALLOW THE DEFENSE TO REOPEN TO PRESENT TWO WITNESSES CONSTITUTED AN ABUSE OF DISCRETION THAT VIOLATED APPELLANT'S CONSTITUTIONAL RIGHTS AND REQUIRES REVERSAL OF THE CONVICTIONS.

POINT IV

THE CUMULATIVE EFFECT OF ALL THE ERRORS DENIED DEFENDANT A FAIR TRIAL UNDER THE STATE AND FEDERAL CONSTITUTIONS.

POINT V

THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

We affirm.

I.

Defendant and the victim, Anna Salesky were married on New Year's Eve, 1959. They had four children. However, their only daughter was born with a medical condition that led to her death in 1964 when she was seventeen months of age. The child's death resulted in marital discord, based upon defendant's view that his wife had provided ineffective assistance to the child while she was being transported to the hospital in an ambulance, and that the wife's conduct led to the child's death. Defendant never forgave her. Nonetheless, defendant and Anna remained together until 1984, when they separated. In 2001, Anna filed for divorce, which was granted in June 2004. Considerable acrimony filled the interval, as well as economic stress to defendant occasioned by efforts by Anna's attorney to freeze defendant's assets.

At the time of the incident giving rise to charges against defendant, he was the owner of a medical electronics business that manufactured computerized dental equipment utilized in root canal procedures, and was engaged in the completion of a contract to provide equipment to a French customer that included a microprocessor. The work was not proceeding smoothly. On the day preceding the incident, it snowed, and defendant became fatigued and stressed from shoveling the accumulation from the business premises. Additionally, a key employee, Jerrold Roccia, informed defendant that he would not be able to come to work that day because of the weather and, despite the fact that he was willing to work at home, he was having computer difficulties. On the day of the incident, Roccia and defendant had a heated dispute occasioned by the French customer's request for modification of the microprocessor and the fact that, after defendant had attempted the modification, the microprocessor board no longer worked.

At the conclusion of the dispute with Roccia, defendant drove to Anna's house and, when he could not gain entry to her house through the front door, he threw a concrete birdbath through a back window and entered the residence and entered through the resulting hole in the glass. As he attempted entry, defendant was reported by Anna to have said: "I'm going to kill you, you fucking bitch, you're destroying my business." Anna, who was ill at the time, barricaded herself in her bedroom by pushing her bed against the door, and she called 9-1-1 for assistance. However, defendant managed to enter the room and to commit a violent assault upon her that culminated in attempted strangulation. Following his arrest, defendant was overheard repeating his death threat against his wife to his girlfriend, Priscilla Moody, when he asked Moody not to bail him out because, he said, when he got out he "was going to kill that fucking bitch." Defendant claims to have believed at the time that Anna was at the root of both his personal and economic woes, and that her death would solve them.

At trial, defendant presented two experts, psychiatrist Clifford Jones, who testified that as the result of the stresses that defendant had undergone, at the time of the attack he was suffering from a psychotic episode that rendered him temporarily insane, and clinical psychologist Catherine Barber, who testified that, at the time of his criminal acts, defendant suffered from diminished mental capacity. The two defenses differ in their proofs. Insanity requires evidence that at the time of the conduct charged, the defendant "was laboring under such a defect of reason, from disease of the mind as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know what he was doing was wrong." N.J.S.A. 2C:4-1. Evidence of mental disease or defect is used "to prove that the defendant did not have a state of mind which is an element of the offense." N.J.S.A. 2C:4-2.

Psychiatrist Elliott Adkins, who testified for the State on rebuttal, disagreed with both Dr. Jones and Dr. Barber and found that although defendant was mentally ill, he was clearly aware of what he was doing and knew that it was wrong. Additionally, on rebuttal the State presented testimony from both Anna and the couple's son Phillip disclosing evidence of other acts of violence committed by defendant during the course of the marriage. Following this testimony and after the close of the evidence, defendant, who had declined to testify in his case in chief or on rebuttal, was permitted in a reopened proceeding to address the topics raised by Anna and Phillip, but his testimony was limited to those areas. He was not permitted to call his French customer as a witness or his girlfriend, Moody.

I.

Defendant argues on appeal that the judge erred, following a N.J.R.E. 104 hearing, in permitting the admission of evidence of acts of domestic violence occurring in the period from 1959 to 1984 as a foundation for the opinion of the State's psychiatric expert on issues of defendant's motive and intent under State v. Eatman, 340 N.J. Super. 295 (App. Div 2001), certif. denied, 170 N.J. 85 (2001) and the four-pronged test for admissibility of State v. Cofield, 127 N.J. 328 (1992). He also claims misuse of that evidence by the prosecutor in the cross-examination of defendants' experts and the direct examination of the State's expert. We disagree.

The testimony provided by Anna and largely corroborated by her son Phillip detailed a series of marital incidents. The violence commenced early in the marriage when defendant had come home intoxicated and pushed Anna into the family's Christmas tree, causing it to fall. In 1977 defendant, reacting violently to food served by Anna or her manner of service, threw it against the window and, after Anna and the children had left the house to obtain dinner, locked them out and left a note stating "you don't live here any more." When the police later sought to escort Anna and the children back into the house, a scuffle occurred between the police and defendant that led to defendant's arrest and overnight custody. After that incident defendant, angered at being locked up, repeatedly punched Anna in the back with sufficient force to result in injuries requiring medical treatment. Phillip testified to additional incidents when conduct by defendant led him to believe that defendant intended to throw Anna down the stairs and when defendant hit her in the head. In testimony by Anna, corroborated by Phillip, she testified further to a New Year's Eve incident when defendant's death threats led her to flee the house and an incident when defendant placed a fire poker in her mouth as she was lying on the floor. The judge found the witnesses to be credible and their descriptions of the incidents to have been remarkably consistent with each other.

Although this evidence was undeniably prejudicial to defendant, we find that it was properly admitted by the judge following his careful review of the matters presented under the Cofield standards and his determination pursuant to those standards that the evidence of prior violence was relevant to the material issue of defendant's mental state when the crimes at issue were committed, similar in kind and reasonably close in time to the incident for which defendant was being tried, clearly and convincingly proven, and of sufficient probative value not to be outweighed by its apparent prejudice. See Cofield, supra, 127 N.J. at 338.

Defendant has challenged the judge's determination, in part, on the basis of the length of time that had elapsed since the incidents had occurred. However, we do not find the lapse of time between the incidents and defendant's crime to have required that the evidence be barred. The couple separated in 1984 and had little contact thereafter. Thus the absence of more recent violence cannot reasonably be utilized to diminish the force of the evidence. Indeed, we permitted introduction of such evidence in markedly similar circumstance in Eatman, in which we affirmed the admissibility in a trial for a murder committed in 1997 of prior acts of violence to a variety of women occurring between 1965 and 1982 as a foundation for the rejection by the prosecution's psychiatric expert of the defendant's claim of diminished capacity. That decision, further, strongly supports the conclusion of the trial judge that the evidence presented was relevant to rebut claims by defendant of insanity and diminished mental capacity, and that its probative value in that regard overwhelmed its prejudicial nature. Whether the acts of defendant, if viewed independently, were actionable as domestic violence is not the issue, which instead is whether those acts provided probative evidence relevant to of defendant's state of mind at the time of the burglary and attempted murder.

We further find no error in the use of this evidence in the cross-examination of defendant's experts, Dr. Barber and Dr. Jones, following testimony by them that they had not considered defendant's history, to determine whether if the history had been considered, either would have reached a different conclusion. On appeal, defendant claims that this use of evidence by the prosecutor was contrary to State v. Vandeweaghe, 351 N.J. Super. 467, 481 (App. Div. 2002), aff'd 177 N.J. 229 (2003), State v. Farthing, 331 N.J. Super. 58, 79 (App. Div.), certif. denied, 165 N.J. 530 (2000) and State v. Spencer, 319 N.J. Super. 284, 299-03 (App. Div. 1999). In particular, he focuses on dictum in Vandeweaghe, expressed in the course of an extended discussion of the proper treatment of hearsay contained in an expert's report, that "if the expert did not rely upon the hearsay in formulating [his] opinion, the cross-examiner may not delve into the hearsay, even though it may be contained in the expert's report" and that "[e]xpert testimony is not a vehicle for the 'wholesale [introduction] of otherwise inadmissible evidence.'" 351 N.J. Super. at 481 (quoting Farthing, supra, 331 N.J. Super. at 79).

We find the precedent upon which defendant relies to be inapposite. In Vandeweaghe, the defendant claimed as a defense to murder that he was so intoxicated that he was incapable of forming the requisite intent. His defense was supported by expert testimony during defendant's case in chief, and contested by the State's expert on rebuttal, who testified that defendant suffered from an antisocial personality disorder and was an effective liar. The State's expert supported those opinions with extensive hearsay, containing accounts of numerous criminal acts and other instances of questionable morality. We found to be plain error the admission of so much hearsay in support of an opinion regarding defendant's psychiatric condition that had little relevance to the case, since evidence of defendant's personality disorder was irrelevant to whether he had the mens rea required for burglary or purposeful or knowing murder. Id. at 481-84.

In contrast, in the present case, defendant claimed insanity or diminished mental capacity, thereby rendering his mental state a significant issue for determination by the jury. Further, the evidence providing the basis for the cross-examination was independently admissible. The majority of the episodes that were the subject of the prosecutor's examination had been ruled admissible pursuant to N.J.R.E. 404(b) pre-trial and were recounted directly by Anna and Phillip in their testimony on rebuttal; the remainder consisted of admissions by defendant of episodes of road rage and a dispute with a neighbor resulting in the imposition of a municipal court fine that were admissible pursuant to N.J.R.E. 803(b)(1). Moreover, that admissible evidence was not directly recounted by the prosecutor in her cross-examination, but was presented merely in hypothetical form, nor was it presented through the State's expert, but instead, it was introduced only by Anna and Phillip. Our discussion in Vandeweaghe of the proper treatment of hearsay contained in the report of a testifying expert cannot be read, as defendant argues, as a means for barring legitimate cross-examination by a prosecutor of the strength of the foundation for a defense expert's opinion, or explaining the basis for the opinion of an expert for the State. We find no misconduct by the prosecutor in this regard.

II.

We further find no error in the court's determination to limit the testimony of Dr. Jones to his opinion that defendant was insane, and not to permit his testimony that defendant suffered from diminished mental capacity at the time of the crimes. Prior to trial, the State had been served with a one-paragraph opinion from Dr. Jones, dated October 25, 2004, in which he had expressed the conclusion that defendant suffered from a psychotic episode and met the legal definition of insanity. Following service of the report, the State moved to bar the testimony of Dr. Jones as premised on a net opinion. The court, however, denied the motion and permitted Dr. Jones to issue a supplemental report stating the foundation for his conclusion. The nature of Dr. Jones' opinion was the subject of an additional motion shortly before trial, and eventually, the defense produced a number of reports from him.

Although we do not have copies of those reports, nothing in the record supplied to us on appeal suggests that Dr. Jones ever deviated from his conclusion that defendant was legally insane at the time of the attempted murder of his former wife. Indeed, when during trial the defense sought to proffer Dr. Jones's opinion on diminished capacity, following the testimony of Dr. Barber on that subject, defense counsel admitted that it was only after meeting with Dr. Jones five days earlier, after trial had commenced, that Dr Jones had indicated that he could testify "as to the elements" of a diminished capacity defense.

After hearing argument on the proffer the trial judge, relying on R. 3:13-3(d)(5), concluded that it "would be inappropriate and unfair to the State to allow Dr. Jones to testify to something that is not included in his reports." We find no abuse of discretion on the judge's ruling in this regard. State v. Scher, 278 N.J. Super. 249, 272 (App. Div. 1994), certif. denied, 140 N.J. 276 (1995). Although the State was prepared to cross-examine Dr. Barber regarding her conclusion of diminished capacity, that fact does not necessarily demonstrate that it was prepared to examine Dr. Jones with respect to an unstated opinion at odds with his report.

Moreover, the court's decision did not act to deprive defendant of the benefit of the opinion of his expert. It merely confined that opinion to what had been previously expressed. The defense was provided ample opportunity to present the opinion of Dr. Jones, and it was aware prior to trial that the opinion differed from that of Dr. Barber - a subject of comment by the State properly in summation. The attempt by the defense to reconcile the two opinions, during the course of trial and without notice to the State, was simply too late.

III.

We also find no abuse of discretion in the court's determination to limit defendant's testimony, offered as rebuttal after the testimonial phase of the trial had concluded, to the acts of domestic violence to which Anna and Phillip had testified, and to deny him the opportunity at this late stage to introduce testimony by his French customer and his girlfriend, each of whom could have been called during the course of defendant's case in chief or while rebuttal was in progress.

At the conclusion of his case in chief, defendant was asked on the record whether he wished to testify on his own behalf, as was his right, and at that time, he waived the opportunity, as was also his right. State v. Savage, 120 N.J. 594, 626-31 (1990). Defendant again waived any right to give testimony in rebuttal, and instead only sought to testify after testimony had been declared at an end.

Arguably, it would have been within the court's discretion in this circumstance to deny defendant's request to testify in a reopened proceeding in its entirety. State v. Gray, 101 N.J. Super. 490, 494 (App. Div.), certif. denied, 52 N.J. 484 (1968). The court chose not to do so, and, in light of the rebuttal testimony of Anna and Phillip, permitted defendant to meet that evidence. Defendant cites to no New Jersey precedent that would suggest that, by determining after rebuttal was concluded to testify, defendant had a right to reopen the entire case so that he could make himself "known as a human being" to the jury. We decline to follow Yee v. State, 790 S.W.2d 361 (Tex. App. 14th Dist. 1990), review denied, 815 S.W.2d 691 (Tex. Crim. App. 1991), which does not express New Jersey law. We thus find no error.

Defendant's proffer regarding the testimony of his customer, Haye Hinrichs, made during the course of the court's charge conference, was that Hinrichs could testify what was going on in defendant's business, the impact of the divorce from Anna, and the pressure defendant was under. Hinrichs was also proffered as competent to testify that defendant's business was a million dollar business that Hinrichs's company sought to purchase, and that the company failed because of the conduct of Anna, her divorce attorney and the Family Part judge. Defendant proffered his girlfriend Pricilla Moody to refute the contention that he was violent by testifying that she was not beaten as Anna was alleged to have been.

We find it within the judge's discretion to have barred this testimony, portions of which appear from the proffer to have been inadmissible as based upon hearsay. The content of the testimony as expressed in the two proffers was known to defendant at the outset, and it provided nothing that the defense could not have presented while the testimonial portion of trial was in progress. State v. Wolf, 44 N.J. 176, 188-191 (1965).

Evidence of the fact that the trial judge accommodated various jurors in the scheduling of trial and that the judge had personal scheduling problems in the week following the verdict does not affect our conclusion in that regard, since there is no evidence that the judge's decision depended on scheduling concerns. We thus affirm defendant's convictions.

IV.

As we have stated, defendant was sentenced to a term of fifteen years, subject to NERA, for attempted murder and to a concurrent seven-year sentence for second-degree burglary, also subject to NERA. In setting the terms, the judge found as aggravating factors numbers 2 (the gravity of the harm inflicted, considering that the defendant knew that the victim was particularly vulnerable or incapable of resistance due to age and ill-health); 3 (the risk of reoffense in light of defendant's prior federal tax conviction); 9 (the need for deterrence); and 12 (that the offense was committed against a victim known to be over the age of sixty). N.J.S.A. 2C:44-1a(2), (3), (9), and (12). The judge found no mitigating factors. Nonetheless, the judge imposed what were then the presumptive terms of fifteen years for attempted murder and seven years for second-degree burglary, each subject to NERA, upon defendant, finding that the aggravating factors did not warrant a higher sentence, and he denied a request by the State to run the sentences consecutively.

Because defendant received only then-presumptive terms, we find no violation of State v. Natale as the result either of the length of the terms or the aggravating factors considered, which included matters other than defendant's prior record. 184 N.J. 458, 474, 484 (2005); Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63, 147 L. Ed. 2d 435, 455 (2000). Further, we do not find that the judge engaged in double counting in invoking aggravating factor two, since the foundation for that factor required defendant's knowledge of vulnerability from age or illness, not simply an evaluation of the seriousness of the harm inflicted. State v. Kromphold, 162 N.J. 345, 352-55 (2000). Likewise, we decline to find a consideration of deterrence improper. In light of defendant's level of functioning in his personal and professional life, he was clearly able to appreciate the consequences of his conduct, regardless of his mental condition at the time he committed the crimes at issue.

 
As a final matter, we find no ground for a determination that the presumptive sentences imposed were manifestly excessive or unduly punitive. State v. O'Donnell, 117 N.J. 210 (1989); State v. Ghertler, 114 N.J. 383 (1989); State v. Roth, 95 N.J. 334 (1984). Defendant's age at time of sentencing, in our view, does not warrant a lesser sentence.

Affirmed.

(continued)

(continued)

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A-4946-04T3

July 26, 2006