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NOT FOR PUBLICATION WITHOUT THE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-5337-07T45337-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

V.

LEONARD SALESKY,

Defendant-Appellant.

__________________________

 

Submitted November 16, 2009 - Decided

Before Judges Reisner and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 03-05-0704.

Leonard Salesky, appellant pro se.

Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Alexis R. Agre, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Leonard Salesky appeals from a June 5, 2008 order denying his petition for post-conviction relief (PCR). We affirm.

I

Based on the brutal beating of his estranged wife, Salesky was convicted of attempted murder and associated offenses and was sentenced in 2005 to a fifteen-year prison term subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. At his trial, defendant claimed that at the time of the assault, he suffered from insanity or diminished capacity. The jury nonetheless convicted him.

The following pertinent evidence was introduced at the 2005 trial. Leonard Salesky and A.S. were married in 1959. A.S. testified about several prior incidents of domestic violence that had taken place during their marriage, including a time when defendant pushed her into their Christmas tree, and an incident in which he threw food and locked his family out of the house. She also testified about an incident in which he punched her several times and chased her down the street, and another episode in which he hit her in the head. On two other occasions, he threatened to kill her.

The Salesky's son Phillip also testified about these incidents, which he witnessed during his childhood. He corroborated A.S.'s testimony that, in one incident, defendant threw a plate of roast beef out the window, locked his family out of the house, and was arrested after he scuffled with the police. According to Phillip, a week later, defendant began punching A.S. in the back after receiving a court notice relating to his arrest. She could not walk for a month after this incident. He also recalled an incident in which his father hit A.S. in the face and another in which defendant pushed her out of the bedroom.

A.S. testified that she and defendant separated in 1984, and she remained living in the marital home. She testified that the couple remained separated, as opposed to divorced, for the next seventeen years because defendant told her "not to ask" him for anything, and she complied. A.S. filed for divorce in 2001, after defendant told her that he wanted to move back into the house and live with her.

On December 6, 2002, while the divorce proceedings were pending, A.S. heard someone at her front door and found defendant outside trying to break in. A.S. testified that defendant told her, "I'm going to kill you, you F-ing bitch, you're destroying my business." A.S. told him to leave or she would call the police. She took the cordless phone into her room, barricaded the door, and called 9-1-1. Defendant picked up the other phone in the house while A.S. was speaking with the 9-1-1 operator, and then forced his way into A.S.'s bedroom, yelling that he was going to kill her. She testified that defendant repeatedly punched her and began strangling her.

The police officers who responded to A.S.'s 9-1-1 call testified that they arrived at the house at around 9:30 a.m. and arrested defendant after a struggle. A.S. was taken to the hospital with multiple injuries. Defendant was also taken to the hospital where he was offered, but refused, treatment for a cut on his hand. The officers then took him to the police station.

According to Officer Willard, at about 1:30 p.m., which was several hours after the arrest, he permitted defendant to receive a telephone call from a friend, Ms. Moody. Willard testified that he overheard defendant telling Moody "to tell his employees to go home for the day and to not bail him out from jail, because when he gets out, he's going to kill that fucking bitch." Later that day, A.S. obtained a restraining order against defendant. The police officer who served the order on defendant at the jail at about 4:30 p.m., testified that when she handed defendant the restraining order, he responded "It will not help her."

At the end of the trial, defendant testified concerning the alleged acts of violence early in the marriage. He denied ever hitting his wife, and testified that she was verbally abusive to him on many occasions. He admitted that on one occasion, he may have threatened to kill her, but explained that the phrase "I'm going to kill you" was "part of my normal language." He used the term frequently, without meaning it.

Expert Witness Testimony

The defense did not dispute that on December 6, 2002, defendant brutally attacked his wife. Rather, the defense offered testimony from two expert witnesses concerning defendant's diminished capacity or insanity. Dr. Catherine Barber, Ph.D., an expert in clinical and forensic psychology, evaluated defendant between June 2003 and August 2003. In forming her opinion, Barber relied on her interviews with defendant, a Personality Assessment Inventory (PAI) test, and "reports of other doctors who had examined him." Barber testified that, at the time of the incident, defendant was "exhibiting a clearly altered mental state . . . a brief reactive psychosis." Barber testified that defendant's psychosis resulted from the stress he was under as a result of business demands and a "very acrimonious divorce." Defendant reported "having lost his ability to see in color" at the time of the incident, which reflected deranged thinking. Barber concluded that defendant's "ability to formulate intent or purposeful behavior was significantly impaired by his psychotic state." However, Barber explained that "psychosis" was not a diagnosis contained in the DSM IV; rather it was a symptom of various psychotic disorders. She also admitted on cross-examination that a "brief psychotic disorder" was a very rare condition according to the DSM IV.

On direct examination, Barber testified that a psychiatrist who evaluated defendant during a hospitalization in May 2003 diagnosed him as having "psychosis NOS." Barber also stated on direct examination that none of the reports about defendant prepared by other doctors changed her opinion about his mental state on the date in question. It was not clear, however, which doctors she was referring to.

On cross-examination, Barber explained that the "brief psychotic episode" began earlier on December 6, 2002, when defendant had a heated argument with an employee at work, and ended either "when he ceased the physical attack on his wife" or when the police arrived. Barber admitted that her diagnosis was based essentially on defendant's statements to her about seeing in "black and white" as well as his statements that his thinking was "disorganized" at the time and "that he was experiencing something he had never experienced before, that he was extremely out of it." However, she acknowledged that she did not know about defendant's prior acts of violence when she formed her opinion of his mental state, and had not questioned him about any prior violent acts. She also admitted on cross-examination that on December 27, 2002, defendant gave another defense doctor, Dr. Clifford Jones, a much more detailed description of the assault than he had given her.

Barber stated that defendant was not suffering from "full blown" delusional thinking, but that his belief system "approaches the delusional." Barber confirmed that defendant reported thinking as he left work on the day of the incident that he was "going to kill that bitch," and that the only way the "pressure would be off" was if he was "in a cell." Defendant "continued to vigorously talk about his hatred of his wife and his animosity toward her" in his interviews with Barber. Barber also stated that defendant "most likely" knew the nature and quality of his acts on the day of the attack. Barber did not think he met the criteria required to establish "insanity."

During cross-examination, the prosecutor asked Barber if she was "familiar with an individual by the name of Dr. Robert Sadoff," to which Barber replied affirmatively. The prosecutor then asked who Sadoff was, and the defense objected. The sidebar was not recorded, but the prosecutor asked upon resuming questioning if Barber had been given a copy of Sadoff's report. Barber said that she had reviewed the report the night before her testimony during a meeting with the defendant's attorney. Barber did not specifically testify that she considered Sadoff's report in arriving at her own conclusions, nor did counsel for either side ask her that question. However, the prosecutor elicited from Barber that the defense had asked Sadoff to examine defendant and provide a report.

The prosecutor asked if there was "anything in [Sadoff's] report that would change your opinion about . . . the defendant's state of mind on December 6, 2002," to which Barber replied, "[n]o. In fact, [I] found it very consistent with my observations." The prosecutor further asked Barber if her conclusions about defendant's mental state differed from Sadoff's conclusions. Barber responded, "[n]ot quite. The way I would put it is that his description of his mental state was very similar to mine, but his ultimate conclusion as to what legal standard it did or did not meet differed."

Q So, [Sadoff's] conclusion about the mental state was the same as yours? Yours is that [Salesky] was psychotic at the time,

. . . .

A Yes - And . . . Dr. Sadoff refers to it as dissociative disorder . . . or dissociative episode. . . .

Q That's not psychotic disorder.

A They're very similar, . . . . They're discriminable, but they have a great deal of overlap.

Q Okay. Isn't it true that Dr. Sadoff said, "I cannot state that Mr. Salesky was psychotic at the time, . . . and . . . I cannot state that he did not know what he was doing or did not know that it was wrong."

A Correct.

Barber testified that Sadoff characterized defendant as having had a "dissociative episode," rather than a psychosis. The prosecutor then questioned Barber about whether she agreed with Sadoff's opinion that defendant "knew what he was doing and acted with intent:"

Q Doesn't [Sadoff] say that [Salesky] knew what he was doing and he acted with intent, albeit in an altered state of consciousness?

A He does. And, then later he says there was no conscious deliberate intent to kill A.S."

. . . .

Q So, he was acting with intent. [Sadoff] just feels that he wasn't intending to kill her. He might have been intending to hurt, he might have intended to break into the house, but he wasn't intending to kill her?

A I think that's probably a fair characterization of what [Sadoff] means by that.

Barber clarified that Sadoff's report indicated defendant acted with intent, but not with deliberate intent to kill. The prosecutor asked Barber if she agreed with Sadoff's opinion, saying:

[B]ecause yesterday you told us that the report was quite similar to your report, right?

A Not exactly. What I said was that his observations . . . where he describes Mr. Salesky's history, his functioning, his general mental state. And those observations are, I think, extremely consistent with my own. . . . Where we diverge is at the end where he - . . . his opinion as to what legal definition his behavior meets differs from mine, yes.

The prosecutor elicited that Barber believed defendant did not meet the criteria for insanity, but did meet the criteria for diminished capacity. However, Sadoff concluded that defendant met neither criteria:

Q Dr. Sadoff is saying he doesn't meet the criteria for an insanity defense and he doesn't meet the criteria for diminished capacity, isn't that right?

A That's right . . . but that's Dr. Sadoff's opinion . . . not mine.

On redirect, the defense further elicited that Barber's opinion was consistent in a number of ways with Sadoff's opinion. On re-cross, the prosecutor again elicited that Barber agreed with Sadoff's conclusion that defendant did not meet the criteria for insanity, but that she disagreed with Sadoff as to defendant's diminished capacity.

The defense also offered the testimony of Dr. Clifford Jones, as an expert in psychiatry. However, Jones was limited to testifying as to whether defendant was legally insane at the time of the incident because his reports were limited to that subject. Jones was not permitted to testify concerning diminished capacity.

Jones examined defendant on December 27, 2002, while he was in the Burlington County jail. Jones testified that right before the attack, defendant "lost the capacity to reason, to think rationally. I also think his thinking reached delusional proportions." Jones testified that on the date of the incident, defendant "had a mental breakdown and entered an acute psychotic state on that morning of December the 6th, 2002." Jones further testified that defendant lost the ability to distinguish right and wrong during the incident, and that his psychosis prevented him from knowing the nature and quality of his acts. Defendant reported to Jones that, "he realized he was choking her - choking - killing her. And, at that moment, he stopped." Jones diagnosed him with "an adjustment disorder with mixed emotional features and conduct." On cross-examination, Jones testified that he disagreed with Dr. Barber's opinion that defendant "knew the nature and quality of his acts and knew what he was doing was wrong."

To rebut the testimony of Drs. Barber and Jones, the State offered the testimony of Dr. Elliot Adkins, an expert in clinical and forensic psychology. Like the other experts, Adkins diagnosed defendant with "an adjustment disorder with mixed disturbance of emotion and conduct," and a personality disorder "with some anti-social and paranoid features." He also diagnosed him as having "a personality disorder, NOS . . . with some anti-social and paranoid features." However, he disagreed with Barber's conclusion that defendant could not form intent, and disagreed with Jones' conclusion that defendant could not distinguish right and wrong and did not know the quality of his acts.

Adkins testified that defendant's "psychological testing did not indicate any severe psychopathology." While Adkins opined that defendant did "become enraged" on December 6, 2002, Adkins opined that there is a "difference between rage and psychosis," and that defendant was not psychotic and knew what he was doing was wrong. Adkins also opined that defendant's statements about wanting to kill his wife during and immediately after the attack supported his opinion that defendant "stated intentions and [had] an awareness of what he was doing."

During the charge conference, the prosecutor indicated that she would not refer to Dr. Sadoff's report in her summation. However, she also proposed a limiting instruction that would have specifically and emphatically directed the jury that they could not consider "the testimony regarding Dr. Sadoff's report as substantive evidence of the defendant's state of mind at the time of the offenses." Rather, they could only consider it "for the limited purpose of evaluating Dr. Barber's credibility." Defense counsel declined to have the court give the charge, stating that it was not necessary if the prosecutor was not going to refer to Dr. Sadoff's report in her closing argument. The judge decided not to give the charge, since the defense objected to it and the report would not be mentioned in summation.

II

On his direct appeal, defendant raised the following points:

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 rejected all of those contentions and affirmed the conviction and the sentence. State v. Salesky, No. A-4946-04 (App. Div. July 26, 2006), certif. denied, 188 N.J. 579 (2006). Defendant then filed the PCR petition that gave rise to this appeal.

In denying the petition, the PCR judge, who had also been the trial judge, issued a comprehensive written opinion dated June 9, 2008, addressing each of defendant's numerous points, many of which either could have been raised on direct appeal or were raised and rejected.

III

On this appeal, defendant raises the following points for our consideration:

POINT ONE

This point was filed as per point 15 with the trial court. DENIAL OF DUE PROCESS - JURY CHARGE IMPARTS TO THE JURY AN UNCONSTITUTIONAL UNDERSTANDING OF THE ALLOCATION OF BURDENS OF PERSUASION.

POINT TWO

This point was filed as per point 1 with the trial court. CROSS EXAMINATION OF DEFENSE EXPERT UTILIZING REPORT OF DEFENSE EXPERT THAT DID NOT TESTIFY VIOLATED DEFENDANT'S RIGHTS TO EFFECTIVE ASSISTANCE OF COUNSEL.

POINT THREE

This point was filed as per point 2 with the trial court. THE FAILURE OF THE TRIAL COURT TO CHARGE PASSION/PROVOCATION AS LESSER - INCLUDED OFFENSES DEPRIVED DEFENDANT OF A FAIR TRIAL AND DUE PROCESS OF LAW. UNITED STATES CONSTITUTION AMENDEMENTS VI AND XIV; NEW JERSEY CONSTITUTION ARTICLE I, PARAGRAPH 1, 10.

POINT FOUR

This point was filed as per point 16 with the trial court. STATE EXPERT QUOTING DEFENDANT TO JURY VIOLATED CONSTITUTIONAL RIGHTS OF DEFENDANT - FAILURE OF COUNSEL TO ACT AND GIVING DEFENDANT WRONG ADVICE CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT FIVE

This point was filed as per point 11 with the trial court. DEFENDANT FORCED TO SURRENDER ONE RIGHT TO ASSERT ANOTHER RIGHT - RIGHTS DENIED WITHOUT MIRANDA WARNING CONSTITUTIONAL VIOLATIONS AND INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT SIX

This point was filed as per point 17 with the trial court. THE CONSTITUTIONAL RIGHTS OF DEFENDANT PURSUANT TO THE V, VI AND XIV AMENDMENTS TO THE UNITED STATES CONSTITUTION WERE VIOLATED WITH ERRONEOUS JURY INSTRUCTIONS.

POINT SEVEN

This point was filed as per point 3 with the trial court. INEFFECTIVE ASSISTANCE OF COUNSEL - COUNSEL'S FAILURE TO TIMELY FILE PRETRIAL REPORTS RESULTING IN MID TRIAL DEFENSE STRATEGY CHANGE TO DETRIMENT OF DEFENSE WITH INCREASED BURDEN OF PROOF TO DEFENSE.

POINT EIGHT

This point was filed as per point 5 with the trial court. INEFFECTIVE ASSISTANCE OF COUNSEL AND APPELLATE COUNSEL - COURT REQUIRED DEFENSE EXPERT TO TESTIFY ON INSANITY WHEN SUBSTANCE OF EXPERT'S REPORTS WAS DIMINISHED CAPACITY.

POINT NINE

This point was filed as per point 4 with the trial court. INEFFECTIVE ASSISTANCE OF COUNSEL - STATE AND TRIAL COURT DID INTERFERE WITH DEFENSE STRATEGY AND COUNSEL FAILED TO COUNTER ERRONEOUS ARGUMENTS OF STATE.

POINT TEN

This point was filed as per point 9 with the trial court. DEFENDANT'S RIGHT TO A FAIR TRIAL WAS DENIED WITH ADMISSION OF N.J.R.E. 404(b) MATERIAL.

POINT ELEVEN

This point was filed as per point 6 with the trial court. INEFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL - INADMISSIBLE WORK PRODUCT TESTIMONY ALLOWED IN TRIAL AND NOT RAISED IN DIRECT APPEAL.

POINT TWELVE

This point was filed as per point 10 with the trial court. EMOTIONAL, THEATRICAL DISPLAY OF VICTIM TAINTED THE JURY.

POINT THIRTEEN

This point was filed as per point 18 with the trial court. STATE EXPERT DID QUOTE UNDER OATH CONCLUSIONS DEFENSE EXPERT ALLEGEDLY MADE. FACTS DO NOT SUPPORT THIS. STATE EXPERT COMMITTED PERJURY. DEFENDANT CLAIMS INEFFECTIVE ASSISTANCE OF COUNSEL AND CONSTITUTIONAL VIOLATIONS.

POINT FOURTEEN

This point was filed as per point 8 with the trial court. DEFENSE COUNSEL MADE A UNILATERAL DECISION WITHOUT KNOWLEDGE OR CONSENT OF DEFENDANT TO NOT CALL WITNESSES ON THE WITNESS LIST, THAT COULD OF PROVIDED EXCULPATORY EVIDENCE - DEFENDANT CLAIMS INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT FIFTEEN

This point was filed as per point 7 with the trial court. INEFFECTIVE ASSISTANCE OF COUNSEL - COUNSEL FAILED TO PROPERLY RESEARCH CASE LAW RESULTING IN DEFENDANT MAKING DECISION NOT TO TESTIFY.

POINT SIXTEEN

This point was filed as per point 13 with the trial court. THE TESTIMONY OF TWO POLICE OFFICERS CONSTITUTED MEDICAL TESIMONY THAT SHOULD HAVE BEEN GIVEN BY MEDICAL DOCTOR-THE JURY WAS INTENTIONALLY MISLED BY PROSECUTOR TO MAKE IT APPEAR THAT STRANGULATION OCCURRED - DENIAL OF DUE PROCESS AND INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT SEVENTEEN

This point was filed as per point 19 with the trial court. TRIAL COURT FAILED TO RECORD TRIAL MATERIAL INCLUDING ANSWERS TO JURY QUESTION DURING DELIBERATIONS IN VIOLATION OF DEFENDANT'S CONSTITUTIONAL RIGHTS FOR DUE PROCESS AND FAIR TRIAL.

POINT EIGHTEEN

This point was filed as per point 12 with the trial court. TO RAISE ISSUE CONCERNING CURRICULUM VITAE AND SEQUESTRATION OF STATE EXPERT.

POINT NINETEEN

Point filed in letter dated February 26, 2008 with trial court. DEFENDANT CHARGED WITH BURGULARY FOR BREAKING INTO PROPERTY HE OWNED. JURY NEVER INFORMED - INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT TWENTY

This point was filed as per point 14 with the trial court. THE AGGREGATE LEGAL ERRORS DENIED DEFENDANT A FAIR TRIAL AND DUE PROCESS PURSUANT TO THE STATE AND FEDERAL CONSTITUTIONS.

In his reply brief, defendant raises the following contentions:

POINT - SUPPLEMENTAL

THE GRAND JURY INDICTMENT AND JURY INSTRUCTIONS VIOLATED STATE STATUTE AND THE DUE PROCESS RIGHTS OF DEFENDANT UNDER THE STATE AND FEDERAL CONSTITUTIONS ART. I, PAR. 10; V AND XIV AMENDMENTS.

POINT - SECOND SUPPLEMENTAL

THE TRIAL COURT COMPOUNDED ERRONEOUS JURY INSTRUCTIONS WITH A FUNDAMENTALLY FLAWED VERDICT SHEET - IN VIOLATION OF DUE PROCESS GUARANTEED BY V AND XIV AMENDMENTS ARTICLE I, PARAGRAPH 10 OF THE FEDERAL AND STATE CONSTITUTIONS.

Having reviewed the record, we conclude that with the exception of Point Two, defendant's arguments were adequately and correctly addressed by the PCR judge and are without sufficient merit to warrant our further discussing them in this opinion. See R. 2:11-3(e)(2).

In his Point Two, defendant raises an issue that could have been but was not raised on his direct appeal. See R. 3:22-4. Nonetheless, we address here his contention that his appellate counsel was ineffective for failing to raise the issue. In that context, we address the merits of defendant's underlying claim that the trial court erred in allowing the prosecutor to cross-examine a testifying defense expert, Dr. Barber, about opinions rendered by another defense expert, Dr. Sadoff, whom the defense did not call to testify.

We agree with defendant that it was error to permit the prosecutor to cross-examine Barber about the report of an expert whom defense counsel consulted but did not call as a witness. It is unclear how the prosecutor obtained a copy of Sadoff's report, but since Sadoff did not testify, and Barber did not state that she relied on Sadoff's report in reaching her own conclusions, the prosecution had no right to question her about it.

It is fundamental that defense counsel must have the ability to consult with potential expert witnesses without worrying that the prosecution will be able to use a non-testifying expert's opinion if it proves unfavorable to the defense. State v. Mingo, 77 N.J. 576, 582 (1978).

We think it makes no difference whether the principle calling for vindication in such a situation is to be denominated the effective representation by counsel or the attorney-client privilege. We regard them as related, and basically subserving the right of a criminal defendant to be effectively represented by counsel. We believe that right to be clearly subverted if an expert report obtained for defense purposes by defendant's counsel is to be made discoverable to the State and utilizable by it, directly or indirectly, at trial, unless a defendant signifies his intention to use the expert evidence at trial or in fact does so.

[Id. at 584 (citation omitted).]

As we held in State v. Spencer, 319 N.J. Super. 284, 301-02 (App. Div. 1999), even if a defense expert refers in his or her report to the report of an expert whom the defense consulted but did not call as a witness, the prosecutor may not question the testifying expert about the report of the non-testifying expert.

Further, "[a]n expert may be asked on cross-examination to disclose the underlying facts or data he relied upon. However, . . . hearsay evidence which has not been relied upon by the expert may not be employed on cross-examination." Id. at 302-03 (citations omitted). Here, the prosecutor did not establish that Barber relied on Sadoff's report in reaching her conclusions, Sadoff was not called as a defense expert, and Barber should not have been questioned about Sadoff's opinions.

However, while it was error, in the context of the evidence in this case we conclude it was harmless. There is no reasonable possibility that the evidence concerning Sadoff's opinion "might have contributed to the conviction." State v. Macon, 57 N.J. 325, 338-39 (1971). The testimony about Dr. Sadoff's report was a relatively small portion of Dr. Barber's lengthy cross-examination. Unlike Spencer, in which the prosecutor not only improperly elicited information about a non-testifying expert's opinions but highlighted them in summation, the prosecutor here did not refer to Dr. Sadoff's report in her summation. Moreover, the defense declined to have the judge give a limiting instruction about the testimony.

Further, there were far more significant weaknesses in the defendant's evidence than the information about Sadoff's report. Most importantly, the testifying defense experts, Barber and Jones, disagreed with each other as to whether defendant was legally insane or suffered from diminished capacity. And it appeared that defendant told different stories to each expert about what he allegedly remembered about the details of the attack. Those inconsistencies significantly undermined the defense, because the experts' opinions were based almost entirely on what defendant told them.

Barber admitted that the "brief psychotic disorder" which she claimed occurred during the attack, was a rare condition. Her opinion that the "brief" disorder ended, at the latest, when the police arrived, was undermined by testimony that hours later defendant expressed his intent to kill his wife if he was released on bail, and threatened that the restraining order would "not help her." Additionally, defendant's past history of violent assaults on his wife undermined the opinions of both defense experts that the December 6, 2002 episode was the result of psychosis due to the unusual stress of the divorce and defendant's business problems. In short, we conclude that even if there was trial error, it was harmless and, therefore, the failure of appellate counsel to raise the issue on appeal was not ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984); State v. Fritz, 105 N.J. 42, 52 (1987).

Affirmed.

 

We use the victim's initials because the case involves domestic violence.

Defendant broke a front window and then gained entry to the house by throwing a cement bird bath through a sliding glass door.

(continued)

(continued)

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A-5337-07T4

December 16, 2009