STATE OF NEW JERSEY v. GRACIANO TIRADO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5072-03T45072-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GRACIANO TIRADO,

Defendant-Appellant.

_______________________________________________________

 

Submitted November 30, 2005 - Decided February 6, 2006

Before Judges Weissbard and Sabatino.

On appeal from Superior Court of New

Jersey, Law Division, Middlesex County,

Ind. No. 02-06-0810.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Daniel V. Gautieri, Assistant

Deputy Public Defender, of counsel and on the

brief).

Bruce J. Kaplan, Middlesex County Prosecutor,

attorney for respondent (Simon Louis Rosenbach,

Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

This appeal requires us to delineate the appropriate use of the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) published by the American Psychiatric Association, when it is employed in the examination and cross-examination of expert witnesses in criminal cases. In this case, we conclude that defendant was not prejudiced by the use of DSM-IV in cross-examination of his expert; however, we caution trial judges to be circumspect in allowing use of DSM-IV in a forensic setting for which the manual was not designed.

Defendant Graciano Tirado appeals from his conviction after a jury trial of murder, N.J.S.A. 2C:11-3a(1)(2), and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. Two other counts charged aggravated assault; one was dismissed for lack of evidence, and the jury acquitted defendant of the other. After denial of his motion for judgment of acquittal or a new trial, defendant was sentenced on the murder charge to thirty years in prison with parole ineligibility for the entire term. On the weapon offense, defendant was sentenced to a concurrent term of ten years with five years of parole ineligibility.

Because of the limited nature of the sole substantive issue raised on appeal, we see no need for an extended recitation of the facts. The victim of the charged homicide was Zoila Mena, defendant's ex-girlfriend. Mena lived at 107 Baldwin Street, New Brunswick with her two adult sons, Aaron and Augustine. On February 9, 2002, shortly after 3:00 p.m., Mena returned home from running some errands. Defendant was on the porch. As she walked past him toward the front door, defendant shot her twice, in the back and in her left temple. Hearing the shots, Aaron came outside to find his mother in a pool of blood. As he knelt by his mother to render assistance, he claimed that defendant put a gun to his head and ordered him inside. Aaron went inside and called the police. However, a witness testified that both Aaron and Augustine came outside and defendant merely motioned for them to go back into the house, which they did. The witness did not see defendant put a gun to Aaron's head, although he did have a gun in his hand.

After shooting Mena, defendant left the porch and walked down the block. He returned almost immediately and waited on the porch until the police arrived. The first responding officer found the gun on the porch, next to defendant. Mena was taken by ambulance to the hospital where she died. Defendant was taken to police headquarters where he was interrogated by two officers, with another officer acting as their interpreter. Beginning at 6:00 p.m., a fourteen-minute taped statement was taken from defendant in which he admitted shooting Mena. He claimed that he had asked Mena where she had been that morning and she replied that it was none of his business. According to his statement, Mena cursed at him and said she was going to get her sons to attack him. Fearful that he would be killed, defendant grabbed a gun which was hidden in a pipe and shot twice. He said that he lost his mind and was confused. Defendant claimed that he had purchased the gun from Aaron, a claim which Aaron denied.

At trial, defendant presented the testimony of Dr. Elias Fernandez, a forensic psychologist, that defendant was intoxicated at the time of the offense and, as a result, he lacked the ability to act knowingly or purposely. Dr. Fernandez testified that defendant was functionally illiterate, and that he believed him to be in the borderline range of cognitive functioning. Dr. Fernandez opined that defendant's limited intellectual functioning, in conjunction with his ingestion of alcohol, impaired his reasoning to the extent that he acted recklessly.

Defendant had informed Dr. Fernandez, in an interview, that prior to the shooting, he consumed several beers each day, and on the weekend he drank even more. Defendant tended to minimize the extent of his drinking; he did not perceive it to be a problem. On the day of the shooting, defendant claimed to have consumed a 24-ounce beer, a pint of blackberry brandy, and a "pocket-sized" bottle of alcohol.

Dr. Fernandez testified that, according to what he learned from defendant, when Mena returned from a visit to the Dominican Republic, her romantic relationship with him became contentious. Defendant became distraught and dysphoric upon learning that Mena was still married to a man in the Dominican Republic and that she had lied to him about their relationship. Defendant became enraged, and his emotional anger, coupled with the alcohol and his poor reasoning, led to the shooting.

Dr. Fernandez had listened to the tape of defendant's statement to the police. In that statement, defendant was clear and oriented. Dr. Fernandez concluded, however, that based on the shock produced by the shooting and the police involvement, Tirado became "hyperaroused," which rendered him both coherent and alert.

Dr. Antonio Almoquera Abad, a forensic psychiatrist,

testified in rebuttal as the State's psychiatric expert. Dr. Abad opined that defendant "did not meet any diagnosis for major mental disorder at the time [of the shooting] nor mental retardation. In regard to the effect of alcohol, there is no evidence that I have access to, no evidence documenting a state of alcohol intoxication." Dr. Abad diagnosed defendant as suffering from alcohol abuse, rather than alcohol intoxication. Tirado had indicated to Dr. Abad that he consumed alcohol prior to the shooting, but Dr. Abad could not see any behavioral manifestation substantiating defendant's intoxication. He concluded, however, that defendant had a chronic problem with alcohol.

Dr. Abad disagreed with Dr. Fernandez's conclusion that Tirado had a borderline mental capacity. He also stated that while a shocking event might have a momentary impact on a person's state of intoxication, such stress is hardly ever followed by the disappearance of the state of alcohol intoxication.

On appeal defendant presents two arguments:

POINT I

THE PROSECUTOR COMMITTED MISCONDUCT IN ATTACKING THE DEFENSE PSYCHOLOGIST'S CREDIBILITY, PARTICULARLY BY MISLEADING THE JURORS REGARDING ROLE OF THE DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS IN DEFINING INTOXICATION.

POINT II

THE CONVICTION FOR POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE SHOULD HAVE BEEN MERGED INTO THE CONVICTION FOR MURDER. (Not Raised Below)

The State concedes defendant's second point. Based on the charge to the jury, "that the defendant possessed a firearm with the purpose to use it against Zoila Mena," the possession for an unlawful purpose should have been merged with the murder, rather than having a concurrent sentence imposed.

Concerning the first point, defendant's argument is summarized in the following statement from his brief:

In his cross-examination of defense psychologist Dr. Elias Fernandez and in summation, the prosecutor confused the jurors and undermined Dr. Fernandez's credibility by stating that the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) definition of intoxication was essential to the expert's testimony. The prosecutor contrasted the testimony of Dr. Fernandez with that of its expert, Dr. Antonio Abad, and suggested that Dr. Abad's testimony was more credible because he had relied on the DSM-IV. But the DSM-IV definition differs from the legal definition of intoxication, and was irrelevant. The prosecutor also improperly disparaged the intoxication defense by stating that the defense had produced no evidence of intoxication "other than the paid-for testimony of Dr. Fernandez." The prosecutor also committed misconduct by repeatedly referring to Tirado as an "angry, selfish man" throughout his summation. These errors deprived Tirado of his rights to a fair jury trial and to due process. U.S. Const. Amends. VI, XIV; N.J. Const. Art. 1, 1, 10.

In response, the State raises a number of preliminary contentions. It argues that Dr. Fernandez "should not have been allowed to testify in the first place" because his testimony did not reference a number of the factors to be considered in evaluating an intoxication defense. See State v. Cameron, 104 N.J. 42, 56 (1986). As a result, the reliability of Dr. Fernandez's testimony "is questionable at best, and its probative value is minimal." In addition, the State contends that Dr. Fernandez did not provide the jury with any "scientific, technical or other evidence" that would assist the fact-finders in deciding the intoxication issue. See N.J.R.E. 702. Finally, the State argues that Dr. Fernandez's testimony was capable of misleading the jury "into thinking [he] had actual knowledge of defendant's intoxication, when in fact he [was] guessing. Allowing Dr. Fernandez to testify as an expert gave his testimony undue credibility and could have prejudiced the jury into accepting his position." Thus, the State says, Dr. Fernandez's testimony was lacking in probative value, was highly prejudicial, and should have been barred under N.J.R.E. 403. We reject these arguments, none of which were advanced in the trial court. We find that the trial judge did not err in allowing Dr. Fernandez to testify. Even though his testimony did not touch upon all of the legal criteria for intoxication, it was nevertheless potentially helpful to the jury under N.J.R.E. 702. We also find that the probative value of his opinions, elicited on direct examination, was not substantially outweighed by countervailing factors under Rule 403. Thus, we turn to the merits.

Utilizing the legal definition of intoxication, N.J.S.A. 2C:2-8e(1) ("'Intoxication' means a disturbance of mental or physical capacities resulting from the introduction of substances into the body"), Dr. Fernandez opined that defendant was, as a result of intoxication, deprived of the ability to act knowingly or purposely at the time of the shooting. On cross-examination, the assistant prosecutor elicited that the witness referred to the DSM-IV in his report and identified the work as "something that he utilized," in forming diagnoses as part of [his] clinical practice," as well as in his forensic practice. Indeed, the witness, who recognized the DSM as authoritative, utilized the DSM in this case by diagnosing defendant under "Axis I" as having "alcohol abuse, in remission." In arriving at that diagnosis, Dr. Fernandez "considered all the possible diagnostic criteria" in the DSM.

At that point in the cross-examination, defense counsel objected on the ground that the prosecutor was confusing the issues by suggesting that the "definition of intoxication may be coterminus with intoxication as it is in the DSM." The judge overruled the objection, finding the use of the DSM to be "a matter of cross-examination." The prosecutor then proceeded to inquire into the DSM criteria for a diagnosis of alcohol intoxication, as distinguished from alcohol abuse or alcohol dependence, and elicited that a number of the criteria, such as slurred speech, uncoordination, unsteady gait, nystagmus, impairment in attention or memory, and stupor or coma, were not present in defendant's case. Indeed, it appears from the transcript that the prosecutor utilized a chart on which he placed marks next to the DSM criteria, noting whether each was present, absent, or present in part, according to Dr. Fernandez.

On redirect, defense counsel asked Dr. Fernandez whether he had "come to an opinion as to whether or not [defendant] was intoxicated, not for purposes of the defense but for purposes of DSM," to which the witness replied that he believed defendant's "mental faculties were prostrated and clinical judgment impaired due to his alcohol consumption."

Dr. Abad, the State's expert, also made a DSM-IV diagnosis of alcohol abuse, under "Axis I." He considered alcohol intoxication but found that the available evidence did not allow him to make such a diagnosis. Specifically, he found no evidence supporting any of the DSM-IV criteria for alcohol intoxication. Other than defendant's own statement about his drinking, Dr. Abad found no "behaviour manifestation of [intoxication], either subjective as reported by the defendant or objective as reported by the witness[es] who came immediately after the initial offense occurred."

On cross-examination, Dr. Abad maintained that he was using the DSM-IV criteria because they were objective, in the sense that they directed the doctor to "look for behavioural manifestations." He agreed that defendant had a chronic problem with alcohol, leading to a diagnosis of alcohol abuse, and that it was possible that defendant's intake of alcohol before the offense "might have partially contributed in some extent to the poor judgment alleged by the defendant."

In summation, defense counsel argued, based on Dr. Fernandez's testimony, that defendant had acted only recklessly when he shot Mena and that he was, therefore, guilty only of aggravated or reckless manslaughter. Predictably, the prosecutor attacked Dr. Fernandez's credibility. He argued that Dr. Fernandez did not diagnose defendant with alcohol intoxication under the DSM-IV "although he did feel free to use this book, which he uses all the time to diagnose patients, to find that he suffered from alcohol abuse." He continued as follows:

And as you'll remember the Dr. Fernandez on the witness stand, I asked him about alcohol intoxication, and he agreed that there are diagnostic criteria -- my word -- required. He agreed, yes required as part of the diagnosis, one or more of the following signs developing during or shortly after alcohol use. And you've got six. Here they are, the six. You've got the slurred speech. Remember I crossed out the slurred speech. There's really nothing Dr. Fernandez could say. He didn't ask that of his client, and his client is the only one that was giving him anything that could possibly show any of these things. Lack of coordination, unsteady gait, I crossed

that out too. Gaze nystagmus, well nobody gave this test. Oh, I forgot to cross out the stupor or coma. No, that wasn't going on. And, again, we are talking about 3:15, February 9, 2002, Saturday, porch of 107 Baldwin Street when we're talking about alcohol intoxication. We're not talking about some story where you break out the violence and this guy having alcohol problems in general.

And so this, this was the problem. Dr. Fernandez wouldn't let me cross that out, number five, impairment and inattention or memory. But you've heard all the testimony. You've heard it. Dr. Fernandez didn't hear all the testimony, but you have. You had the benefit of that. And I'm sure you'll agree with me, we can cross that right out. But don't tell Dr. Fernandez. I'd hate to upset him.

Immediately after this statement, the prosecutor launched into a reading of the court's proposed charge on intoxication, until directed by the judge to stop "reading any proposed instructions to the jury. That's my job." Nevertheless, the judge permitted the prosecutor to have the instructions displayed on a screen for the jury.

In his charge, the judge provided the standard jury instruction relating to an intoxication defense. New Jersey Standard Criminal Jury Instruction, N.J.S.A. 2C:2-8, Intoxication Negating an Element of The Offense. Defendant does not argue that the instruction was erroneous but only that the extensive use of the DSM-IV criteria in examining and cross-examining the experts, and in summation, likely confused the jury when it deliberated on the issue. We find the question troublesome but ultimately conclude that a new trial is not warranted.

The DSM, of which DSM-IV is the fourth edition, was first published by the American Psychiatric Association in 1952. The manual was published in an effort to develop a classification of mental disorders and to provide a uniform medical nomenclature for clinicians and researchers. DSM-IV at xv-xviii. The purpose of the manual was described in DSM-IV as follows:

The utility and credibility of DSM-IV require that it focus on its clinical, research, and educational purposes and be supported by an extensive empirical foundation. Our highest priority has been to provide a helpful guide to clinical practice. We hoped to make DSM-IV practical and useful for clinicians by striving for brevity of criteria sets, clarity of language, and explicit statements of the constructs embodied in the diagnostic criteria. An additional goal was to facilitate research and improve communication among clinicians and researchers. We were also mindful of the use of DSM-IV for improving the collection of clinical information and as an educational tool for teaching psychopathology.

An official nomenclature must be applicable in a wide diversity of contexts. DSM-IV is used by clinicians and researchers of many different orientations (e.g., biological, psychodynamic, cognitive, behavioral, interpersonal, family/systems). It is used by psychiatrists, other physicians, psychologists, social workers, nurses, occupational and rehabilitation therapists, counselors, and other health and mental health professionals. DSM-IV must be usable across settings - inpatient, outpatient, partial hospital, consultation-liaison, clinic, private practice, and primary care, and with community populations. It is also a necessary tool for collecting and communicating accurate public health statistics. Fortunately, all these many uses are compatible with one another.

[DSM-IV at xv.]

Beginning with DSM-III in 1980, the manual introduced "explicit diagnostic criteria, a multiaxial system, and a descriptive approach that attempted to be neutral with respect to theories of etiology." DSM-IV at xvii-xviii. As noted, DSM utilizes a "multiaxial system" involving "an assessment on several axes, each of which refers to a different domain of information that may help the clinician plan treatment and predict outcome." Id. at 25. The five axes included in DSM-IV are:

Axis I Clinical Disorders

Other Conditions That May Be a Focus Of Clinical Attention

Axis II Personality Disorders

Mental Retardation

Axis III General Medical Conditions

Axis IV Psychosocial and Environmental Problems

Axis V Global Assessment of Functioning

[Ibid. ]

Concerning the use of the DSM-IV in "forensic settings," the manual warns that:

When the DSM-IV categories, criteria, and textual descriptions are employed for forensic purposes, there are significant risks that diagnostic information will be misused and misunderstood. Those dangers arise because of the imperfect fit between the questions of ultimate concern to the law and the information contained in a clinical diagnosis.

In most situations, the clinical diagnosis of a DSM-IV mental disorder is not sufficient to establish the existence . . . [of] a specified legal standard (e.g., for competence, criminal responsibility, or disability), additional information is usually required beyond that contained in the DSM-IV diagnosis.

[Id. at xxiii.]

That said, subject to "an awareness of the risks and limitations discussed above," if used appropriately, "diagnoses and diagnostic information can assist [legal] decision makers in their determinations." Id. at xxiii-xxiv. See United States v. McBroom, 124 F.3d 533, 549-50 (3rd Cir. 1997) (court may properly look to DSM-IV to gain an appreciation and understanding of a defendant's medical condition in order to determine if it results in reduced mental capacity); Venezia v. United States, 884 F. Supp. 919, 925 (D.N.J. 1995) (fact that pathological gambling is identified in DSM-IV as an "impulse control disorder" does not mean that it equates to a significantly reduced mental capacity so as to qualify for a downward departure under 5K 2.13 of the Federal Sentencing Guidelines); State v. Lockhart, 542 S.E.2d 443, 452 (W.Va. 2000) (court looked to DSM to determine whether Dissociative Identity Disorder "enjoys general acceptance in [the] psychiatric community").

In A.B.C. v. XYZ Corp., 282 N.J. Super. 494, 506-07 (App. Div. 1995) (Petrella, P.J.A.D., concurring), Judge Petrella, in the course of concluding that a condition listed as a "disorder" in the DSM did not equate to a handicap under the Law Against Discrimination, N.J.S.A. 10:5-1 to -42, took note of DSM-IV's "Cautionary Statement," which reads:

The specified diagnostic criteria for each mental disorder are offered as guidelines for making diagnoses, because it has been demonstrated that the use of such criteria enhances agreement among clinicians and investigators. The proper use of these criteria requires specialized clinical training that provides both a body of knowledge and clinical skills.

These diagnostic criteria and the DSM-IV Classification of mental disorders reflect a consensus of current formulations of evolving knowledge in our field. They do not encompass, however, all the conditions for which people may be treated or that may be appropriate topics for research efforts.

The purpose of DSM-IV is to provide clear descriptions of diagnostic categories in order to enable clinicians and investigators to diagnose, communicate about, study, and treat people with various mental disorders. It is to be understood that inclusion here, for clinical and research purposes, of a diagnostic category such as Pathological Gambling or Pedophilia does not imply that the condition meets legal or other non-medical criteria for what constitutes mental disease, mental disorder, or mental disability. The clinical and scientific considerations involved in categorization of these conditions as mental disorders may not be wholly relevant to legal judgments, for example, that take into account such issues as individual responsibility, disability determination, and competency.

[DSM-IV at xxvii.]

Other courts have echoed these concerns. In re Hendricks, 912 P.2d 129, 149 (Kan. 1996) (Larson, J., dissenting), rev'd, 521 U.S. 346, 117 S. Ct. 2072, 138 L. Ed. 2d 501 (1997); State v. Silman, 663 So. 2d 27 34 (La. 1995); State v. Ellis, 963 P.2d 843, 850 n.60 (Wash. 1998); State v. Post, 541 N.W.2d 115, 123 (Wis. 1995), cert. denied, 521 U.S. 1118, 117 S. Ct. 2507, 138 L. Ed. 2d 1011 (1997). Notwithstanding our shared misgivings about the use of the DSM, we conclude that reversal is not required in this case.

First, and most importantly, Dr. Fernandez cited and, to some degree relied upon, the DSM in his report, although not in his direct testimony. He concluded that he uses the DSM in his clinical as well as his forensic practice and considered it authoritative. See Jacober v. St. Peter's Med. Ctr., 128 N.J. 475, 478 (1992). This certainly opened the door to cross-examination on the issue by the prosecutor. Indeed, the State's expert also relied upon the DSM.

The question, then, is whether the prosecutor made too much of the DSM in summation by equating it with the legal definition of intoxication in a way that was designed or likely to confuse the jury. Although there was no objection to the summation on this ground, defense counsel may well have understood the judge's prior rulings on the DSM issue, and his objection to that line of questioning, as carrying over to the summation, rendering any further objection unnecessary or futile. As a result, we do not approach this issue in a plain error context.

There is no doubt that the summation aggravated the risk of confusion between the DSM and legal definitions. Were this a closer case, we might well find error. But this was not a close case. In his interviews with the experts, defendant claimed to have been intoxicated at the time of the shooting. However, not a single witness to the events lent any support to that claim. Neither of the two independent eyewitnesses, Vasquez and Boone, observed defendant staggering or otherwise acting inebriated. The same was true for the victim's sons and the responding police officer. According to the witnesses, defendant did not smell of alcohol or have trouble walking or talking, all common indicia of intoxication, see State v. Michalek, 207 N.J. Super. 340-41, (Law Div. 1985), either at the scene or at police headquarters. Defendant gave a cogent, comprehensible tape-recorded statement to the police, which was played for the jury. While Dr. Fernandez opined that defendant was "hyperaroused" when he gave his statement, resulting in the confession being clear and coherent, the jury was free to discount that opinion.

In addition, the judge clearly and correctly charged the jury on the legal definition of intoxication. Although even a correct statement of the law by the judge may not always eliminate the harm from erroneous statements by a prosecutor, see, e.g., State v. Hawk, 327 N.J. Super. 276, 283 (App. Div. 2000), we are persuaded that in the circumstances presented here, any errors in the court's failure to curb the use of the DSM in cross-examination, or in the summation arguments directed to that cross-examination, were harmless, not being "clearly capable of producing an unjust result." R. 2:10-2. Recognizing that harmless error judgments are inevitably retrospective and subjective, we conclude that any error was not likely to have contributed to the jury's verdict. State v. Pillar, 359 N.J. Super. 249, 276-79 (App. Div.), certif. denied, 177 N.J. 572 (2003).

Although we have found no reversible error here, our opinion should not be read as an endorsement of the indiscriminate use of the DSM in cross-examining experts called to render opinions on legal issues in criminal trials. Trial courts should carefully monitor the use of the manual, in light of its own precautionary statements, to ensure that the jury is not misled or confused, and should provide appropriate limiting instructions, if necessary. No bright line rule is appropriate; given the varied scenarios that may arise, the matter must be left to the sound discretion of the trial judge. Of course, if an expert explicitly relies on the DSM to reach a conclusion, cross-examination of that witness using the manual would normally be permitted. Even then, however, the judge remains free to control the nature and extent of the cross-examination in light of the concerns we have identified. See N.J.R.E. 611.

Nevertheless, defendant raises two additional arguments concerning the prosecutor's summation that may bear on the harmless error determination. First, the prosecutor repeatedly characterized defendant as an "angry, selfish man." Defendant argues that these references constituted the use of disparaging epithets, conduct which has long been condemned, most recently in State v. Pennington, 119 N.J. 547, 576-77 (1990). We do not find the prosecutor's use of this description to be error, and certainly not near to the types of comments deemed improper in our prior case law. Ibid.; State v. Sheika, 337 N.J. Super. 228, 250 (App. Div. 2001) (citing cases for this proposition), certif. denied, 169 N.J. 609 (2002). In any event, the judge, on his own volition, issued a prompt curative instruction, telling the jury to disregard those remarks and explaining that the jury's responsibility was not "to determine the defendant's character" but to decide whether he had been proven guilty of the crimes charged.

Second, defendant suggests that he was prejudiced by the prosecutor's reference to the "paid-for testimony of Dr. Fernandez." Defendant objected to this comment at the conclusion of the summations. In response, the prosecutor claimed that he was responding to a similar comment in defense counsel's summation. Our review of the defense summation does not support that claim. Defense counsel did say, however, that the State's expert had been retained and gave certain testimony, which was at odds with statements in his report, "here on this stand under the scrutiny of the prosecutor for whom he's been brought in to give an opinion." We do not agree with the State's argument on appeal that defendant thereby "opened the door to comments about expert compensation."

It is now clear, if it was previously in doubt, that excessive reference to fees paid to experts in criminal cases, in cross-examination and in summation, may be improper. State v. Smith, 167 N.J. 158, 188-89 (2001); State v. Negron, 355 N.J. Super. 556, 577 (App. Div. 2002). Concern over the entire matter of expert witness fees as a basis for impeachment led the Court to direct a review of the Model Jury Charge on that subject. Smith, supra, 167 N.J. at 189 and id. at 189-90 (Long, J., concurring). As a result, the Model Charge was revised, and the trial judge here delivered that revised charge.

Defendant does not raise the "paid-for testimony" as a separate, independent basis for reversal but only as error insofar as it served to unfairly demean Dr. Fernandez and his opinion, in conjunction with the DSM argument discussed earlier. Whether viewed solely or together with the DSM contention, we find no basis for reversal. The prosecutor's comment was brief, there was no cross-examination on the subject, and the court gave an appropriate instruction.

We find that any other arguments concerning the State's summation, including the references to "two Dr. Fernandezes," as well as defendant's argument that the prosecutor, in his cross-examination of Dr. Fernandez, injected into the case facts not in evidence, are without merit and do not warrant further discussion. R. 2:11-3(e)(2).

Conviction affirmed; remanded for amendment of the judgment of conviction to reflect the merger of count two into count one.

 

Defendant was acquitted of aggravated assault on Aaron.

The chart itself was not moved into evidence.

(continued)

(continued)

23

A-5072-03T4

February 6, 2006