STATE OF NEW JERSEY v. RUSSELL M. STEWART

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5414-10T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RUSSELL M. STEWART,

Defendant-Appellant.

-

June 20, 2013

Submitted April 9, 2013 Decided

Before Judges Hayden and Hoffman.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 08-12-1967.

Joseph E. Krakora, Public Defender, attorney for appellant (Stephen W. Kirsch, Assistant Deputy Public Defender, of counsel and on the brief).

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Paul Salvatoriello, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Russell M. Stewart appeals from his March 29, 2011 judgment of conviction and sentence. On December 21, 2010, a Bergen County Grand Jury charged defendant with second-degree disarming a law enforcement officer, N.J.S.A. 2C:12-11(a) (count one); third-degree aggravated assault upon a law enforcement officer, N.J.S.A. 2C:12-1b(5) (count two); and two counts of third-degree aggravated assault with a deadly weapon, N.J.S.A. 2C:12-1b(2) (counts three and four). A jury convicted defendant of counts one and two and acquitted him of the remaining counts. For the reasons that follow, we affirm the conviction but remand for resentencing.

I.

The indictment arose from events that occurred on the evening of September 11, 2008, when defendant rear-ended two different cars, a block apart, totaling his car. When a police officer arrived at the scene of the second collision, defendant initially refused to cooperate and then grabbed the butt of the officer's holstered gun. A struggle ensued, with defendant tugging on the gun, until the officer subdued defendant by striking him in the head with a flashlight. Defendant claimed that he was a recovering alcoholic who had been binging on marijuana earlier that day and that evening.

Before trial, defendant provided the State with an expert report from a psychiatrist, Dr. Robert Chalemian, who claimed that by ingesting a large quantity of marijuana, defendant had induced three disorders listed in the Diagnostic and Statistical Manual of Mental Disorders (DSM):1 Cannabis Intoxication Delirium; Cannabis-Induced Psychotic Disorder with Delusions; and Escalating Addiction to Marijuana. Because of these mental disorders, Dr. Chalemian claimed that defendant lacked the mental capacity "to exercise purposeful and knowing behaviors," "to behave voluntarily," and "to give evidence of a culpable mental state."

The principal issue on this appeal concerns the pretrial ruling that precluded defendant from offering the testimony of Dr. Chalemian that defendant suffered from a mental disease or defect. The judge concluded that the essence of Dr. Chalemian's opinion, as set forth in his twelve-page report, was an unsupported net opinion. Accordingly, finding that "[t]he record does not support any mental disease or defect of any kind," the judge barred Dr. Chalemian's diagnosis of Cannabis-Induced Psychotic Disorder because it would confuse the jury. See N.J.R.E. 403. She also found that the expert s report was a net opinion and that the evidence did not support the symptoms described in the DSM as demonstrating the cited disorders.

The judge did indicate that Dr. Chalemian could testify regarding the defense of intoxication and that the jury should be charged regarding that defense. See N.J.S.A. 2C:2-8. Defendant chose not to present the testimony of Dr. Chalemian on that issue.

At trial, defendant testified that he was an alcoholic and had stopped drinking in 2001; however, in January 2008, he started smoking marijuana, and by September 2008, he was smoking marijuana daily. He said that on September 11, 2011, he stayed home from work because he was "very despondent, very depressed." While home, he said he smoked "a lot" of marijuana, which he estimated at "[a]n eighth to a quarter of an ounce[.]" He said he was smoking marijuana in his car at the time he rear-ended the first car

[a]nd that's when I just can't describe it anything but I lost any sense of reality. I mean, I just I decided I had to get out of there right away. And hit the I don't remember hitting the horn, but I hit the accelerator to try and push the car out of my way, because I wanted to leave. I was scared. Like I said, I was I don't have the the words just fail me to even describe the mental state I was in. I just I freaked out. I snapped.

The trial judge provided the jury with the following instruction regarding the defense of intoxication:

There is evidence in this case concerning the use by the defendant of marijuana on the day in question. Generally a defendant is not relieved of criminal responsibility because he is found to have acted upon the influence of an intoxicating drug. The general assumption is that every person is normal and is possessed of ordinary faculties. The state need not prove that the defendant was sober.

You may consider the evidence as to the defendant's consumption of drugs in determining whether he was intoxicated to such a degree that he was incapable of acting purposely or knowingly. Therefore, once there is some evidence of defendant's intoxication, the state must prove beyond a reasonable doubt that such intoxication did not render defendant incapable of acting purposely and knowingly.

At the conclusion of the five-day trial, a jury found defendant guilty of the first two counts (attempted disarming of a law enforcement officer and aggravated assault upon a law enforcement officer), and acquitted him on the remaining counts, which alleged defendant assaulted the occupants of the vehicles he rear-ended.

Defendant now appeals and raises the following claims:

POINT I

THE LAW-DIVISION JUDGE COMMITTED REVERSIBLE ERROR BY BARRING THE DEFENSE EXPERT FROM TESTIFYING ON DIMINISHED CAPACITY, INSTEAD OF LIMITING THE DEFENSE TO INTOXICATION.

POINT II

THE SENTENCE IMPOSED IS ILLEGAL AND MANIFESTLY EXCESSIVE.

Although the first point clearly lacks merit, the sentencing error does require that we reverse and remand for a new sentencing hearing.

II.

New Jersey's diminished capacity defense provides that "[e]vidence that the defendant suffered from a mental disease or defect is admissible whenever it is relevant 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; see also State v. Nataluk, 316 N.J. Super. 336, 343 (App. Div. 1998). This defense applies "when defendant has presented evidence of a mental disease or defect that interferes with cognitive ability sufficient to prevent or interfere with the formation of the requisite intent or mens rea." State v. Galloway, 133 N.J. 631, 647 (1993). The jury may be charged regarding a mental disease or defect where there exists a diagnosed underlying mental disease or disorder. State v. Reyes, 140 N.J. 344, 364-65 (1995).

"Not every mental disease or defect has relevance to the mental states prescribed by the Code." State v. Breakiron, 108 N.J. 591, 618 n.10 (1987). Indeed, some forms of mental disease, "such as depression or anti-social disorders, have little or no relevance" as to whether a defendant had the ability to form the requisite mental state. Ibid. However, "[o]thers, such as schizophrenia, are clearly relevant." Ibid.

The diminished capacity defense generally does not apply where a defendant's behavior was caused by an intoxicant, rather than an underlying mental deficiency. See Reyes, supra, 140 N.J. at 365. In Reyes, the Court held that the defendant could not establish a diminished capacity defense where he "had been impaired because of emotional rage combined with the voluntary ingestion of intoxicants[,]" but otherwise did not suffer from an underlying mental disorder. Ibid. The Court came to this conclusion despite the fact that the defendant "was possessed of a violent, explosive personality" and might have been suffering from depression, and that the intoxicants "had the effect of making defendant even less able to control his violent emotions." Ibid.; see also N.J.S.A. 2C:2-8(c) ("Intoxication does not, in itself, constitute mental disease within the meaning of chapter 4 [dealing with 'Responsibility'].").

Intoxication from the use of illegal drugs "has the same legal consequences as intoxication from alcohol[.]" State v. Sette, 259 N.J. Super. 156, 173 (App. Div.), certif. denied, 130 N.J. 597 (1992). For example, voluntary drug use, which prevents the formation of purposeful or knowing conduct, negates the crime of murder, but not the crime of reckless manslaughter. State v. Roman, 168 N.J. Super. 344, 350 (App. Div. 1979).

As Judge King explained in Sette:

[A] defendant is relieved of criminal responsibility when his intoxication was not his fault. The involuntary intoxication defense has been rejected systematically where any part of the intoxication resulted from voluntary use of illegal drugs or of legal intoxicants for which the defendant had a known intolerance. This appears so regardless of whether the voluntary ingestion is combined with a pathological intolerance or an unwitting ingestion of another intoxicant. Thus, in a case where the defendant claimed that his mental disease, schizophrenia, combined with voluntary consumption of drugs and alcohol rendered him temporarily insane and therefore not criminally responsible for his acts, the court found that the insanity defense was unavailable since it was in part the result of voluntary ingestion of illegal drugs and alcohol. United States v. Knott, 894 F.2d 1119, 1121 (9th Cir.), cert. denied, 498 U.S. 873, 111 S. Ct. 197, 112 L. Ed. 2d 158 (1990).

[Sette, supra, 259 N.J. Super. at 176-77.]

N.J.R.E. 702 permits a qualified expert witness to testify "in the form of an opinion or otherwise[,]" while N.J.R.E. 703 addresses the "[b]ases of [o]pinion [t]estimony by [e]xperts" and requires an expert opinion to be supported by facts or data in the record or of a type usually relied on by experts in the particular field. Pomerantz Paper Corp. v. New Community Corp., 207 N.J. 344, 372-73 (2011). The corollary of N.J.R.E. 703 "is the net opinion rule, which forbids the admission into evidence of an expert's conclusions that are unsupported by factual evidence or other data." State v. Townsend, 186 N.J. 473, 494 (2006). An expert opinion lacking in such foundation and consisting of "bare conclusions unsupported by factual evidence[,]" or by reasonable inferences drawn from the record, is inadmissible as a net opinion. Johnson v. Salem Corp., 97 N.J. 78, 91 (1984) (internal quotation marks and citation omitted); Rosenberg v. Tavorath, 352 N.J. Super. 385, 401 (App. Div. 2002). The net opinion rule "requires an expert to give the why and wherefore of his or her opinion, rather than a mere conclusion." Ibid. (internal quotation marks and citation omitted).

III.

After careful review, we are satisfied that the motion judge's ruling to bar the opinions of Dr. Chalemian relating to mental disease or defect was not a mistaken exercise of discretion. Where the trial court makes a determination concerning the admissibility of evidence, our review of that action is assessed against the palpable abuse of discretion standard. Brenman v. Demello, 191 N.J. 18, 31 (2007). As the Court elaborated in Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999):

The trial court is granted broad discretion in determining both the relevance of the evidence to be presented and whether its probative value is substantially outweighed by its prejudicial nature. . . . Determinations pursuant to N.J.R.E. 403 should not be overturned on appeal unless it can be shown that the trial court palpably abused its discretion, that is, that its finding was so wide off the mark that a manifest denial of justice resulted.

[internal quotation marks and citations omitted.]

Here, no such showing has been made. The motion judge fully explained the basis for her determination.

The record also fully supports the motion judge's conclusion that Dr. Chalemian's report was a net opinion. Although twelve pages in length, the report lacks any analysis and fails to provide the required "whys and wherefores." The first three pages of the report include a verbatim recitation of the charges in the indictment and a review of the law on diminished capacity. The next five pages contain a detailed recitation of the facts of the case, though never connecting those facts to the criteria that would support the expert's diagnoses. Dr. Chalemian also notes that he met with defendant on two occasions, and recounts his personal background, including no history of mental illness.

Without analysis or explanation, the report abruptly lists the three cannabis-related diagnoses from the DSM, and then recites the charges of the indictment, verbatim, for a second time. Finally, the report states the conclusion of Dr. Chalemian that defendant did not "possess the mental capacity needed to exercise purposeful and knowing behavior nor did he possess the cognitive ability to behave voluntarily, nor did he possess sufficient mental capacity to give evidence of a culpable mental state."

The motion judge recognized that Dr. Chalemian failed to meaningfully connect defendant's marijuana use with his ultimate diagnoses, and just as important, failed to adequately explain or document how those conditions would have precluded defendant from acting with purpose or knowledge. She therefore concluded that Dr. Chalemian's opinions on diminished capacity constituted a net opinion. As the judge explained,

If [Dr. Chalemian were to] testify as an expert . . . that this [was] a psychotic episode of the defendant without having the proper record to substantiate [it, then it would] cause confusion to the jury. The record does not support any mental disease or defect of any kind. . . . It's an opinion that is based on pure speculation and conjecture. It's a net opinion[.]

Unlike Dr. Chalemian's report, the motion judge applied the facts of the case to the criteria in the DSM applicable to the claimed cannabis-related diagnosis, and concluded that two of the four criteria were not present. The judge listed myriad examples in which defendant, although obviously intoxicated, was always aware of his surroundings and was reacting logically to the events and circumstances as they occurred. As the motion judge explained:

[I]n the totality of the circumstances . . . between the motor vehicle scene accident and taking him to the hospital . . . this person, although suffering from intoxication from the use of marijuana[,] is well aware of what is going on around him. In fact, he's commenting on his bad predicament. At the hospital, he actually says to the police officer, "I really messed up." So[,] this is someone who knows the ramifications of what his predicament is, that he is now in a lot of trouble, that it . . . [has] now escalated to the point where criminal charges are going to be instituted and this is something that he's clearly, clearly aware of.

We thus reject defendant's attacks upon the motion judge's pretrial rulings regarding defendant's assertion of a diminished capacity defense. The record strongly supports the judge's conclusion that there was no competent evidence that defendant had a mental disease or defect which rendered him incapable of acting purposely or knowingly.

IV.

At the sentencing hearing, the trial judge imposed a seven-year term of incarceration, with a mandatory eighty-five per cent period of parole ineligibility, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on count one, and a concurrent four-year term of incarceration on count two.

The State concedes two points of sentencing error. First, NERA only applies to disarming a law enforcement officer in the first degree, N.J.S.A. 2C:12-11b, but not in the second-degree, N.J.S.A. 2C:12-11a. See N.J.S.A. 2C:43-7.2d(5). Second, the judge double-counted as an aggravating factor the fact that the offenses involved law enforcement officers.2 State v. Link, 197 N.J. Super. 615, 620 (App. Div. 1984), certif. denied, 101 N.J. 234 (1985).

When a sentence is based on an aggravating factor not supported by the record, it is appropriate for this court to direct the judge to reconsider the sentence. State v. Bieniek, 200 N.J. 601, 608 (2010) (discussing circumstances warranting remand). Consequently, we remand this matter to the trial court for resentencing. In light of the forthcoming resentencing, we decline to address the excessive sentence claim at this time.

Affirmed in part, and reversed and remanded for a new sentencing hearing.

1 Published by American Psychiatric Association, the DSM is the standard classification of mental disorders used by mental health professionals in the United States.

2 In addition to aggravating factors three (the risk that defendant will commit another offense) and nine (the need to deter). N.J.S.A. 2C:44-1a(3); -1a(9), the court also found aggravating factor eight (defendant committed the offense against a law enforcement officer), N.J.S.A. 2C:44-1a(8), which was impermissible because the police status of the victim is an element of both disarming a law enforcement officer, N.J.S.A. 2C:12-11a, and aggravated assault upon a law enforcement officer, N.J.S.A. 2C:12-1b(5).