STATE OF NEW JERSEY v. GEORGE HARTWIG

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GEORGE HARTWIG,

Defendant-Appellant.

________________________________________________________________

December 23, 2013

Argued July 23, 2013 Decided

Before Judges Espinosa and Hoffman.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 09-06-1226.

Brian J. Neary argued the cause for appellant (Law Offices of Brian J. Neary, attorneys; Mr. Neary, of counsel and on the brief; Henry A. Sackler, on the brief).

Jeanne Screen, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Ms. Screen, of counsel and on the brief).

PER CURIAM

Defendant appeals from his convictions for first-degree attempted murder and second-degree aggravated assault upon Louisa Rodas; two counts of fourth-degree aggravated assault (Denise Richardson and Thomas Richardson); second-degree armed burglary; first-degree armed robbery; and three weapons offenses. He also challenges his sentence as excessive. We affirm.

On the evening of December 15, 2008, defendant entered the home he had shared with his former wife, Denise Richardson, armed with a loaded shotgun. He shot his former sister-in-law, Louisa Rodas, in the head and attempted to shoot her brother, Thomas Richardson.

In a letter to "Diane" four days after the shooting, defendant said he had "a severe argument" with his mother-in-law "that morning and she was viciously nasty so all day it ate me up until I wound up getting drunk and going to the house and mistook Louisa for [his mother-in-law]. Either way it was an awful [decision.]"

Defendant filed a notice of insanity defense and submitted a report from Dr. Robert Latimer in support. The State filed a motion to exclude Dr. Latimer's opinion, asserting that it failed as a matter of law to establish evidence of mental disease or defect under N.J.S.A. 2C:4-1 and that his conclusion regarding intoxication constituted a net opinion. The trial judge conducted a hearing pursuant to N.J.R.E. 104 to determine the admissibility of Dr. Latimer's opinion.1

Defendant told Dr. Latimer that, on the day of the shooting, he went to the house to see his wife, Denise, who is now deceased, and gave the following account of the shooting:

Her mother started cursing at me. We had a verbal argument. I went back to my apartment and I got as high as I could without killing myself. I had a shotgun that I had bought in 2007. I loaded it to shoot my mother-in-law, as I thought to myself. I didn't realize what I was doing. I just wanted to shoot her. I wasn't thinking of any consequences. I went back to their house. I entered and I hit my mother-in-law. Except it was not her, it was Louisa. I told Denise to give me her cell phone because I did not want her to call the Cops. I didn't want them to come in and interrupt me from what I was doing. I couldn't see further than that. She was a nuisance. I was in and out of reality. I never thought I was going to commit a murder. It never dawned on me. I didn't want the Cops to interrupt me before I shot her. I just wanted her dead because I was angry. I was out of my mind. It would be a miracle if I get out of this.

At the time of his psychiatric examination, defendant was taking what Dr. Latimer described as "high doses of medication, Seroquel, 400 mg. an antipsychotic." Dr. Latimer concluded that defendant was competent to stand trial pursuant to the standard set forth in N.J.S.A. 2C:4-4.

But, noting defendant's "dysfunctional childhood and prolonged addiction to drugs," Dr. Latimer opined that, at the time of the shooting, defendant "was unable to act with knowledge of purpose in regards to the acts that he was committing. He was suffering from Severe Intoxication from narcotics and Drug Induced Delirium." Dr. Latimer's diagnosis was "Delirium Due to Multiple Substance Intoxication. (DSM-IV-292.81)" and "Substance Dependence with Physiological Dependence with Tolerance and Withdrawal Symptoms.

Despite reaching a diagnosis that included a finding of "multiple substance intoxication," Dr. Latimer's report and testimony failed to specify either the identity or the quantity of substance defendant consumed that led to that level of intoxication at the time of the shooting. In his testimony at the N.J.R.E. 104 hearing, he stated only that defendant was taking "many" Oxycontins on a regular basis prior to the shooting. He did not know how many but referred to defendant's statement to the police to infer that defendant was taking twelve Oxycontins a day. Still, he was "strongly of the opinion that . . . [defendant] did not understand what he was doing . . . [and] was unable to understand the consequences of his acts and he could not have acted with a clear cognitive understanding of his actions."

In a detailed written opinion, the trial judge set forth her reasons for barring Dr. Latimer's testimony. Among those reasons, the trial judge criticized Dr. Latimer's opinion for lacking a sufficient factual basis to support the conclusion that defendant was intoxicated. She stated that, although his report contained information regarding the types of drugs defendant consumed, it "lacks specific details about what quantity, and during what timeframe relevant to the time of the crime, to support the contention that he was extremely intoxicated at the time of the crime." The trial judge noted that Dr. Latimer testified he did not know how many pills defendant took and did not believe defendant knew how many pills he had taken on the night of the shooting. Although Dr. Latimer made reference to twelve Oxycontins in his testimony, the trial judge criticized his failure to consider defendant's report that he built up a tolerance and was able to take twelve eighty-milligram Oxycontins per day. The judge observed that the diagnosis of substance dependence, a psychiatric illness, is distinguishable from acute intoxication.

The trial judge also criticized Dr. Latimer's reliance upon "unconfirmed information and information later determined to be false." By way of example, she assessed his characterization of audiotaped statements defendant gave to the police several hours after the shooting.2 While Dr. Latimer described an interview as "rambling, slurred, and labored," the trial judge stated that, to the contrary, the tape showed defendant was "fully engaged in conversation and [] able to recount the event in extreme detail." The trial judge supported this characterization with quotations from defendant's statement.

After the trial judge granted the State's motion to exclude Dr. Latimer's expert report as a net opinion, defendant entered a conditional guilty plea to the indictment and was sentenced to an aggregate sentence of thirty years subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

In this appeal, defendant argues that the court erred in excluding Dr. Latimer's opinion and thus precluded him from asserting the defenses of intoxication and/or insanity at trial. In the alternative, he argues that Dr. Latimer should have been permitted to supplement his report. He also argues that the sentence is excessive and failed to include consideration of applicable mitigating factors. After considering these arguments in light of the record and applicable law we are satisfied that none have merit.

Turning to defendant's claim that the trial court erred in excluding Dr. Latimer's testimony, we observe that the trial judge's discretion on evidentiary rulings is granted substantial deference on appeal. Bd. of Educ. v. Zoning Bd. of Adjustment, 409 N.J. Super. 389, 430 (App. Div. 2009); Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000). As a general rule, the trial court's ruling will not be disturbed unless there is a clear abuse of discretion. Dinter v. Sears, Roebuck & Co., 252 N.J. Super. 84, 92 (App. Div. 1991). Reversal is only appropriate when the trial judge's ruling was "so wide of the mark that a manifest denial of justice resulted." State v. Carter, 91 N.J. 86, 106 (1982); Bd. of Educ., supra, 409 N.J. Super. at 430.

To provide context for the trial judge's evidentiary ruling, we briefly review the legal standards applicable to the "complete defense" defendant contends he was denied.

"Insanity is an affirmative defense which must be proved by a preponderance of the evidence." N.J.S.A. 2C:4-1. Therefore, to evade criminal responsibility for his conduct, defendant was required to prove, by a preponderance of the evidence that

at the time of such conduct he 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.

[Ibid.]

The fact that defendant may have been intoxicated at the time of the shooting will not, alone, constitute mental disease within the meaning of this statutory defense. N.J.S.A. 2C:2-8(c). Like insanity, for intoxication to rise to the level of a defense, it must negate an element of the offense. N.J.S.A. 2C:2-8(a). The defense is defined in subsection (d) as follows:

Intoxication which (1) is not self-induced3 or (2) is pathological is an affirmative defense if by reason of such intoxication the actor at the time of his conduct did not 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:2-8(d).]

As the Supreme Court observed, this defense requires a showing of such "prostration of faculties" as to deprive the defendant of the capability of acting purposely or knowingly, an "extremely high level" of intoxication. State v. Cameron, 104 N.J. 42, 54, 57-58 (1986). Some of the factors relevant to determining whether this threshold has been met include: the quantity of intoxicant consumed; the period of time involved; the actor's conduct as perceived by others; any odor of alcohol or other intoxicating substance; the results of any tests to determine the content of the intoxicant in the blood; and the actor's ability to recall significant events. Id. at 56. Moreover, to constitute a defense, such intoxication "must be proved by clear and convincing evidence." N.J.S.A. 2C:2-8(d).

Thus, the critical issue here was whether defendant's state of drug-induced intoxication at the time of the shooting rendered him incapable of knowing what he was doing or knowing that what he was doing was wrong. The primary source of facts relied upon by Dr. Latimer that were close in time to the shooting were defendant's audiotaped statements. However, defendant's statements belie any opinion that he lacked knowledge of his actions or had not acted purposely.

In fact, the statement defendant gave within hours of the shooting included the following:

I planned this whole thing. . . . I planned it all day, yeah it's premeditation, I'm not getting out man. I don't give a fuck. . . . and uh if the gun didn't jam there would have been more people dead, I guarantee it . . . . if the gun didn't jam I would have wasted the whole family.

. . . .

. . . I'm blown away man. I can't believe this. I can't . . . block out her sister's face, that fucking shot gun does damage and my wife is like "Lou's dead, Lou's dead?" That fucking broke me more than her being dead. (Sigh) I'm sorry but uh, sorry don't take it back you know. I can't do nothing about it so I'm not going to stress about it. I made the bed, I'll lie in it. The only thing bothers me is I'm never gonna kiss my wife again. I should have thought about this. I'm an impulsive guy, you know.

. . . .

God, I'll never forget that, that image of Louisa, you know, her face was gone. And she wasn't even the target. . . . I'm mortified, I'm blow[n] away - - Sorry for what I done but uh, that ain't going to bring Louisa back.

[Emphasis added.]

In these statements, defendant explicitly admits that he acted in premeditation, planning the attack all day; that the victim was not his intended "target"; that he appreciates the irreversible damage he has done and that he is aware of the criminal consequences he faces as a result of his actions.

Defendant's account to Dr. Latimer similarly demonstrated that defendant formed a specific intent to commit the acts that are the subject of his convictions. He told Dr. Latimer that he wanted his mother-in-law dead because he was angry, admitting he loaded the shotgun "to shoot my mother-in-law," that he "just wanted to shoot her." He recognized the unlawful nature of his conduct, stating he told his wife to give him her cell phone because he did not want her to call the police and have them "come in and interrupt me from what I was doing."

Aside from the statements following the shooting, Dr. Latimer relied upon defendant's account of a tragically dysfunctional childhood, his history of drug abuse and violence, medical records that were not contemporaneous with the shooting, witness interviews and his own psychiatric evaluation of defendant. He identified no information in any of those sources that allow an assessment of defendant's level of drug-induced intoxication on the night of the shooting or provide any of the facts deemed relevant in Cameron.

"[A]n expert's bare opinion that has no support in factual evidence or similar data is a mere net opinion which is not admissible and may not be considered." Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 372 (2011); see also Polzo v. Cnty. of Essex, 196 N.J. 569, 583 (2008); Buckelew v. Grossbard, 87 N.J. 512, 524 (1981). Thus, the trial judge did not abuse her discretion in concluding that Dr. Latimer's opinion was a net opinion and barring his testimony.

Defendant also argues that the sentence imposed upon him was manifestly excessive, contending the trial judge failed to find applicable mitigating factors, i.e., N.J.S.A. 2C:44-1(b)(2),(4), and (11). This argument lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

1 Our summary of the facts, which are essentially undisputed, is derived from the record relating to this motion.

2 Defendant gave three audiotaped statements, at 11:14 p.m., 12:36 a.m. and at 2:16 a.m., after the shooting.

3 Defendant does not contend his intoxication was not self-induced.