Opinion
DOCKET NO. A-0921-07T4
06-14-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. OSCAR CORDOBA, Defendant-Appellant.
Cariddi and Garcia, attorneys for appellant (Carol J. Garcia, on the brief). Theodore F. L. Housel, Atlantic County Prosecutor, attorney for respondent (Jack J. Lipari, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges A. A. Rodríguez, Sabatino, and Ashrafi.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 03-11-2238.
Cariddi and Garcia, attorneys for appellant (Carol J. Garcia, on the brief).
Theodore F. L. Housel, Atlantic County Prosecutor, attorney for respondent (Jack J. Lipari, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Tried by a jury, defendant Oscar Cordoba was found guilty of first-degree murder of his mother-in-law, whom he repeatedly stabbed with a kitchen knife and beat to death on a morning in September 2003 while she was visiting his home. During that same incident, defendant stabbed his wife and attacked one of their three minor children. He also struck two police officers later that day. At trial, defendant attributed his violent behavior to a seizure disorder. The jury nevertheless convicted him of the murder and other crimes associated with the assaults. The trial court imposed an aggregate sentence of fifty-eight years, with corresponding periods of parole ineligibility.
Defendant appeals, alleging insufficient proof of a culpable state of mind to commit murder, numerous trial errors, improprieties in jury selection, flawed jury instructions, and an excessive sentence. We affirm.
I.
The evidence at trial focused both upon defendant's violent acts and his mental and physical health, including his long history of seizures. Because defendant's arguments on appeal largely concern his state of mind and his seizure condition, we discuss the factual and expert proofs relating to those issues in considerable detail.
Defendant is an Argentinean immigrant. He lived in Egg Harbor Township and was married to Sylvia Cordoba. Defendant and Sylvia had three children: a daughter, who was sixteen at the time of the attacks; a younger teenage daughter; and a son who was nine. Defendant had a history of seizures.
Sylvia died of natural causes prior to trial and, as a result, was unavailable to testify. We refer to defendant's wife and his mother-in-law, both of whom are now deceased, by their first names for ease of reading, without intending any disrespect to the decedents.
According to the older daughter, in April 1998, defendant had been pacing the home and complaining that the family did not want him around anymore. A short time later, that daughter responded to her mother's screams for help and discovered defendant beating Sylvia with a cable television box. The blows injured Sylvia's eye, requiring surgery. Defendant pled guilty to simple assault, and was placed on a year of probation.
A. The September 15, 2003 Episode
On September 14, 2003, the children were participating in a karate tournament, while defendant's seventy-five-year-old mother-in-law, Julia Bradway, was visiting. According to the older daughter, during the tournament defendant acted rudely towards his family and towards a karate school employee. Afterwards, the family went to dinner with several friends. The older daughter recalled that Sylvia told her to watch her father because he was acting abnormally.
The following morning, September 15, 2003, the younger daughter and Julia were upstairs in bed when they heard screaming. Reaching the lower level of the house, they observed defendant repeatedly stabbing Sylvia with a large knife from the kitchen butchers block. The older daughter yelled for her father to stop and told her mother to run.
As the younger daughter, Julia, and Sylvia attempted to flee, defendant stabbed Julia in the back. The older daughter then arrived and attempted to subdue defendant, but to no avail. During the scuffle between defendant and the older daughter, she momentarily forced him to drop the knife, but he regained it.
At some point the older daughter was able to jump onto defendant's back, and defendant also tried to stab her. Although he was unsuccessful in stabbing her, he did hit her with the side of his hand.
Defendant then resumed stabbing and kicking Julia, while Sylvia and the two daughters fled to the house of Michael Steinman, a neighbor. At the time of the trial, Steinman was a seventeen-year veteran of the Egg Harbor Police Department. The son was apparently left in the home.
Officer Steinman testified that Sylvia banged on the door of his home at approximately 5:45 a.m. that day. She was hysterical and dripping with blood. She reportedly told Steinman that "[m]y husband went crazy with the knife." Steinman called the police and requested that a patrol car be sent to his home. Thereafter, Steinman and several other police officers approached the Cordoba residence, joining Lieutenant Robert Fisher and Officers Heather Stumpf, Joseph Bonsall, John Lee and Alekhine Pahang, who were already present at the scene.
Officer Lee observed defendant through the glass on the front door. He saw that defendant was smiling and was refusing to let police inside. Officers Steinman, Pahang, and Stumpf then attempted entry through the rear of the home. Defendant appeared at the back door. Despite the officers' repeated requests to let them in, defendant merely smirked at them. Defendant then retreated to another room.
Once inside the home, Officer Steinman observed Julia, motionless and bloody, lying in the living room. She had multiple stab wounds, lacerations, burns, fractures, and blunt force injuries. The injuries to her were particularly gruesome, and we need not describe them in further detail. Julia was pronounced dead at the scene.
Defendant, meanwhile, was still in the back room to which he had retreated. He continued to be non-compliant with officers, who were trying to discern whether he was holding a weapon. Lieutenant Fisher believed that defendant was a threat, was being intentionally disobedient, and was trying to taunt the officers. Officer Bonsall, similarly believed that defendant intended to harm the officers and that defendant understood their commands. It was not until police applied pepper spray and defendant used his hands to cover his face that the officers were able to subdue and handcuff him. Defendant was escorted outside and read Miranda warnings, which he acknowledged.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Officer Bonsall interviewed Sylvia at the scene. Sylvia was unsure why defendant had attacked her, but said he was epileptic and had a history of violence. The previous evening, September 14, defendant had not slept well, had paced, and had claimed he was hearing and smelling things. That morning, when Sylvia first went downstairs to make breakfast, defendant followed her. He inquired where Julia was and then started to admire the kitchen knives while asking about a knife demonstration at the karate tournament the previous day. According to Sylvia, she observed a "change" in defendant's demeanor, and began to back away from him. Defendant pulled a knife from the butchers block and told her that, "'he was going to give [her] something to remember him by or something like that.'" He then attacked Sylvia with the knife. Sylvia had multiple stab wounds, which required surgery. A bent and bloody knife was ultimately recovered from a butchers block in the kitchen.
According to Officer Stumpf, defendant had been calm when he was read the Miranda warnings and placed inside her patrol car. However, as Stumpf transported defendant to the police station, he began to scream, swear, kick, and spit. He screamed "[f]ucking cops," and indicated that he was going to kick out the window of Stumpf's patrol car.
When they arrived at the police station, defendant was calm until he was asked to remove his shoes during a routine contraband check. At that point, Officer Charles Davenport observed that defendant appeared to be agitated and angry. Defendant feigned removing his shoes and instead kicked Davenport in the leg. Davenport believed the kick was intentional. Stumpf again used pepper spray to subdue defendant, and he laughed at her. Defendant was placed in a cell where he paced, smiled, mumbled, laughed, and glared at Stumpf until her shift ended.
A short time later, Detective Michael Hughes entered defendant's holding cell, in an attempt to bring him to an interview room. Detective Hughes observed defendant pacing in his cell. Defendant said to Hughes, "I know all you guys," and then proceeded to ask how his mother-in-law was doing. When Hughes replied that he did not know anything about defendant's mother-in-law, defendant said that he had hit his mother-in-law and that he "did a good thing tonight." Defendant refused to leave his cell, so Hughes left.
Hughes returned with Investigators Michael Mattioli and Joseph McFadden. Both investigators identified themselves. Mattioli perceived that defendant understood what they were saying to him. However, when McFadden entered defendant's cell to speak with him, defendant kicked him in the groin. Defendant had been able to distract McFadden by claiming that officers outside the holding cell were laughing at defendant, a remark which had caused McFadden to turn around.
Later that same day, Lieutenant James Druding took defendant to a hospital to confirm that he was not injured. Defendant did not respond to any of the hospital physician's questions. Afterwards, when defendant was being transported to the Atlantic County Justice facility, he kept repeating "[t]his is bullshit. They took my money. This is bullshit."
Christopher Heacock, a part-time police dispatcher, testified that a 9-1-1 call was placed from defendant's residence on the date of the September 15, 2003 episode. The caller breathed heavily, said a few nonsensical phrases, and then hung up.
Hydow Park, the county medical examiner, performed the autopsy on Julia. Dr. Park determined that she was cut with a knife and suffered burns. He also noted the presence of several defensive wounds. In Dr. Park's opinion, Julia died as a result of being beaten and stabbed.
B. The Daughters' Testimony
The daughters each testified about the defendant's history of seizures. The younger daughter recalled seeing her father have more than fifty seizures. The older daughter stated that she had observed probably more than thirty seizures. When having a seizure, defendant would typically stop all activity, become tense, and fall to the ground where he would lie without speaking. According to the older daughter, when her father had a seizure, he "would just freeze." His seizures typically lasted approximately five to ten minutes. During a seizure, the family members present would "take care" of defendant and ensure he did not hit his head. For approximately one-half hour after a seizure, defendant occasionally acted "mellow" and "burped," or acted "funky." However, the daughters contended that defendant was never violent towards anyone during a seizure.
The younger daughter believed that defendant was not having a seizure when Sylvia was hit with the cable box in 1998 or when he stabbed Sylvia and Julia in 2003. According to the daughter, when defendant became angry about something, he ordinarily would push Sylvia or knock things over. Similarly, the older daughter testified that defendant's behavior on September 15, 2003 and in April of 1998 was not similar to his behavior during a seizure. During a seizure, he would be unable to walk or use a knife.
The older daughter also noted that defendant sometimes would have disagreements with Julia or argue about her visits when he did not want her to come. Although she stated that defendant never "yelled," the older daughter had observed defendant becoming angry towards Julia in the past. On those occasions he would take out his frustration on family pets or break objects. According to her testimony, when defendant was angry, he "[s]ometimes [] would get physical with certain things." Beyond that, however, the younger daughter testified that she had never seen him act violently toward Julia.
C. Evidence Related to Defendant's April 1998 Assault on Sylvia
The defense offered additional testimony regarding defendant's prior assault of Sylvia in 1998. Because Sylvia died prior to the trial, relevant portions of her grand jury testimony were read aloud by defense counsel to the jury. Among other things, Sylvia had testified that on the night before the April 1998 assault, defendant was acting abnormally, did not sleep well, and later told the children he was leaving. After Sylvia calmed him down, he went to bed. However, according to Sylvia, a few moments later, defendant jumped up and attacked her by trying to gouge out her eye. Sylvia and her children escaped the house and ran to a neighbor's home for assistance. When questioned before the grand jury, Sylvia claimed that she had told the police on that occasion that defendant had tried to "rip [her] eye out" because he had a seizure.
Sergeant Robert Gray testified that, when notified of the April 1998 incident, he had reported to the home. He observed that Sylvia was upset and had visible injuries, including abrasions on her arms and legs. Her eye was swollen. She reported to Sergeant Gray that her husband was "very agitated" because they had been arguing about the writing of their wills. Sylvia told the officer that when she attempted to go back to bed, defendant attacked her, threw her across the bedroom, tossed her into the entertainment unit, knocked the television on the floor, and then attempted to injure one of her eyes with his finger.
After interviewing Sylvia, Sergeant Gray entered defendant's residence and examined the bedroom. The room was disheveled, and the television was on the floor. Defendant was not taken to the hospital because he appeared to be in good health. At the police station, defendant refused to be fingerprinted and was uncooperative. However, nothing about defendant's demeanor at the police station caused Gray to believe defendant needed medical attention.
Dana Litke of the Prosecutor's Office testified that, although defendant was indicted for second-degree and third-degree aggravated assault after the 1998 attack, Sylvia had requested that the charges be dropped. Specifically, Sylvia had stated that the children were upset, that defendant was a good father, and that she did not want him removed from the home. As a result of her input, a "significant downgrade" was provided, allowing defendant to plead guilty to simple assault.
D. Defendant's Lay Witnesses
During defendant's case, in an effort to show his client's history of unusual behavior, defense counsel called several police officers. The officers described, among other things, the police report substantiating the April 1998 incident between Sylvia and defendant.
In support of defendant's claim that he had struck the older daughter in self-defense in 2003, defendant questioned Charles DeFebbo of the Prosecutor's Office about a photograph taken of the crime scene. The photograph showed that defendant's back had a two-inch abrasion.
E. Testimony of Defense Expert, Dr. Samuel
The defense presented testimony at trial from psychiatrist Stephen Samuel, M.D., an expert in neuropsychology and the treatment of seizure disorders. Dr. Samuel evaluated defendant three times in June and July of 2004. He issued expert reports in September 2004 and October 2004.
None of the expert reports or the corresponding trial exhibits have been included in the record on appeal.
Dr. Samuel testified that he had reviewed records that reflected that defendant had been discharged from the military in Argentina due to a seizure disorder. Defendant had an abnormal electroencephalogram ("EEG"), which indicated the possible presence of a seizure disorder. Dr. Samuel also reviewed records from 1998 by Dr. Steven Mandel, Dr. Gary Glass, and Dr. Scott Tzorfas, all of whom had previously examined defendant.
When Dr. Samuel examined defendant, he performed several neurological tests. He ascertained that defendant's I.Q. was in the borderline range. According to Dr. Samuel, defendant suffered from anxiety and depression. Dr. Samuel also related that as a result of his mental disorder, defendant perceived aggression in exchanges with other people that were actually neutral.
Additionally, Dr. Samuel explained that a seizure could last up to six hours and that after a seizure, an individual could be confused, incoherent, and psychotic due to a detachment from reality. The records that Dr. Samuel reviewed reflected that at the time of incident in 1998, defendant was acting strangely, tried to jump out of a two-story window, had tremendous strength, and assaulted his wife. According to Dr. Samuel, Dr. Glass had believed that the 1998 assault was due to a seizure and was unintentional, and that defendant did not understand at the time that he was doing anything wrong.
Based on his review of the records, Dr. Samuel found similarities in defendant's behavior between his 1998 assault on his wife and the September 2003 incident. However, at the State's request, the court struck his opinion testimony relating to the April 1998 incident, because Dr. Samuel had not written any expert report addressing defendant's state of mind or any aspect of the 1998 incident. The court made clear that it was only striking Dr. Samuel's "conclusion" regarding the 1998 incident, not Dr. Samuel's other testimony about the incident or what was in the reports from that time.
--------
Dr. Samuel noted that, in the weeks preceding the stabbing in 2003, defendant's treating physician had requested that defendant take a smaller dosage of his seizure medicine. In addition, prior to the 2003 attacks, defendant had smelled odors that did not exist, saw colors that were not present, and found that food tasted strange. Dr. Samuel explained in this regard that people with seizure disorders can have olfactory hallucinations. Dr. Samuel further opined that defendant's claim that he could not remember the stabbing was consistent with a seizure.
Dr. Samuel opined that the testing revealed that defendant was not faking his medical condition, that defendant had epilepsy, and that, as a result, defendant did not know he was committing wrongful acts on September 15, 2003. More specifically, Dr. Samuel concluded that at the time of the September 2003 episode, defendant was "laboring under defective reasoning" and did not understand the nature of the acts he was committing.
On cross-examination, Dr. Samuel acknowledged that he did not examine defendant immediately after the 2003 stabbing, but instead saw him almost one year later. The defense expert also acknowledged that, in an effort to improve their pending legal difficulties, some individuals might be motivated to feign poor health when they met him for an evaluation. Dr. Samuel would not state definitively whether or not defendant actually could remember the stabbing. Dr. Samuel also acknowledged that there were no violent episodes following other changes in defendant's medications.
Dr. Samuel further agreed on cross-examination that, based on past medical reports, defendant's typical seizures had lasted two to three minutes and that he would be incoherent and lethargic afterwards. The defense expert conceded that aggressive outbursts were rare when an individual was experiencing a seizure. In such instances, the aggression would typically be a response to another person's touch, rather than "directly aggressive violence."
Dr. Samuel's cross-examination also explored the significance of the April 1998 incident as described by Dr. Tzorfas. Defendant was evaluated by Dr. Tzorfas in the emergency room after the incident, but defendant's EEG did not reveal any seizure activity at that time. Instead, Dr. Tzorfas had described that incident as a "severe aggressive outburst," which was psychiatric in nature and not related to defendant's seizure disorder. Dr. Samuel recognized that defendant periodically pushed his wife and may have also pushed his children. Nevertheless, Dr. Samuel would not characterize defendant as generally being "aggressive" to his family.
Acknowledging that he had found defendant to be "paranoid," Dr. Samuel further admitted on cross-examination that being paranoid did not necessarily mean that an individual could not tell right from wrong or that he or she was incapable of acting knowingly and purposely. Dr. Samuel agreed that defendant was conscious and aware on the date of the September 2003 episode and that he had memories of the events that took place at the restaurant and the tournament prior to the attacks. In addition, defendant recalled returning home, setting the security alarm, going to sleep, hearing a cricket, getting up in the morning, and going to the kitchen. Defendant was also able to recount certain discrete memories of the stabbings, such as knowing his daughter was on his back, feeling scared, hiding, hearing the police, and being pepper sprayed.
Dr. Samuel also agreed that pulling knives out of a butchers block and returning them to that location required both motor skill and control. Dr. Samuel also conceded that trying to kick the window of a police car demonstrated an individual's control over his or her cognitive and motor function.
F. Testimony of Defense Expert, Dr. Glass
The defense also presented expert testimony from Dr. Gary Glass, another psychiatrist who had examined defendant. Dr. Glass first had been retained to examine defendant in relation to the 1998 criminal charges. Prior to testifying, Dr. Glass reviewed medical records from Argentina, as well as reports from Dr. Mandel, Dr. Tzorfas, Dr. Waldman, and Dr. Grove. He also reviewed various medical records from defendant's hospital admissions and prison medical records.
According to Dr. Glass, defendant had "bizarre awarenesses" regarding the 2003 stabbing incident. For example, defendant remembered the stabbing, but did not recall seeing any blood. Defendant also asserted that the knife he used was made out of rubber and did not penetrate the flesh. Dr. Glass opined that individuals who experience seizures may suffer from different types of hallucinations.
In discussing the various medical reports of other physicians, Dr. Glass highlighted the decision to reduce defendant's Depakote medication about three weeks before the stabbings. Dr. Glass also noted that defendant was once assessed at the psychiatric unit at Atlantic City Medical Center because he had claimed voices told him to spit at his wife and to punch a friend.
Relying on Dr. Samuel's report and his own previous November 1998 evaluation of defendant, Dr. Glass concluded that defendant suffered from a complex, difficult-to-treat seizure disorder. According to Dr. Glass, defendant's seizures were never well controlled and stress increased them. Dr. Glass concluded that the 2003 stabbings and assaults were a direct result of defendant's seizure disorder and that defendant was not in control of his actions during that episode.
On cross-examination, Dr. Glass acknowledged that he did not write his expert report until fourteen months after he examined defendant. Like Dr. Samuel, Dr. Glass agreed that in a forensic evaluation an individual may have an incentive to be dishonest to aid his or her court case. He also conceded that a person could fake hallucinations.
Dr. Glass agreed that defendant had possessed the ability on the day of the 2003 stabbings to dial 9-1-1 and respond to commands from police. However, he maintained that defendant had not possessed conscious awareness on that day. Dr. Glass conceded that there was no way to determine definitively whether defendant was acting with purpose or knowledge at the time of the attacks.
G. Defendant's Trial Testimony
Defendant testified on his own behalf, mainly addressing his history of seizures and his actions prior to the 2003 attacks. He described a seizure as being on a roller coaster, and stated that he felt confused after a seizure. According to defendant, the 1998 assault on Sylvia was due to his not taking his medicine. Defendant further noted that, in the weeks prior to the September 2003 episode, his medicine regimen had been modified and lowered.
As recounted by defendant, the day before the 2003 attacks, he had assisted with the karate tournament. Then he went to eat at a restaurant that evening. He felt hot, smelled bad odors, and sensed that there was a problem with the taste of the food. He recalled experiencing the same symptoms upon returning home and then going to bed. According to defendant, his sleep was disrupted by a scratching sound on the window, a cricket chirping, and a vision of "the walls coming in, and back to me with [] little stars." Although defendant recalled following his wife Sylvia to the kitchen the next morning, he did not remember attacking anyone. However, defendant did remember being handcuffed by the police and being neutralized with pepper spray.
H. Testimony of the State's Expert, Dr. Greenfield
In its rebuttal case, the State called Daniel Greenfield, M.D., a psychiatrist, as its expert. Dr. Greenfield generally described "symptoms of epilepsy or seizure disorder" as "an uncoordinated discharge of electrical energy in different parts of the brain and[,] depending on where they occur, that will determine what some of the symptoms are." Dr. Greenfield further noted that in some "so-called generalized instances" of a seizure, "a person will have tonic-clonic seizures or fits." He added that "[a] person will have jerking movements that that individual doesn't remember and that individual is not controlling. It's abnormal. It takes a lot of energy."
Dr. Greenfield further explained that:
epileptic seizures tend to occur in short bursts, whether they are the so-called generalized tonic-clonic movement, a person shaking a lot or maybe the word is incontinent of urine, which means you release the urine. You don't have control over it during the seizure and you do other bad things for your body, like bite your tongue.He added that "[t]hose things characteristically occur during the so-called generalized tonic-clonic seizures."
As compared with tonic-clonic seizures, a "partial complex seizure[]," according to Dr. Greenfield, is a type of "generalized seizure" in which the individual's movements or "motor behaviors are not as uncoordinated as [the] gross motor movements" exhibited during a tonic-clonic seizure. Dr. Greenfield cited sleepwalking as an example of such a partial complex seizure. Dr. Greenfield also described a third type of seizure where "the individual will have a lapse of consciousness, a lapse of awareness of his environment . . . for a minute, minute and a half," and appear "spacey" or "distracted." He continued, "[b]ut the idea behind seizures is that unless they're controlled, they occur when they occur. They're uncoordinated. They're dysfunctional." And "the kinds of behaviors that occur during them are not under an individual's voluntary control by definition."
Having reviewed various documents and having clinically examined defendant, Dr. Greenfield concluded that defendant was not suffering from a seizure when he attacked his wife in 1998. Dr. Greenfield also noted several commonalities between the 1998 incident and the 2003 attack. In particular, both episodes, according to Dr. Greenfield, "involved protracted and prolonged purposeful, angry, goal-directed behavior[.]"
Dr. Greenfield found significant that in defendant's thirty-five-year seizure history, his seizures were never longer than a few minutes, whereas in the two episodes in April 1998 and September 2003, the violent outbursts lasted much longer. According to Dr. Greenfield, it is uncommon for a seizure to last twelve to fifteen minutes, and it is likewise uncommon for an individual to be able to engage in goal-directed behavior during a seizure. In addition, Dr. Greenfield noted that individuals do not typically have violent outbursts while suffering from a seizure. Although persons experiencing a seizure will sometimes resist people trying to touch them, in what is called "resistive violence," such defensive measures, according to Dr. Greenfield, normally last only approximately one to two minutes.
Dr. Greenfield explained that after a seizure, a person may be confused for a few minutes to a half hour. He stated that the seizures that defendant periodically experienced from 1998 to 2003 were unlike both the April 1998 and September 2003 violent incidents. He further noted that he believed defendant had not experienced postictal psychosis (i.e., a period of uncontrollable behavior) on September 15, because his actions that day were not random or flailing. According to Dr. Greenfield, "if violent outbursts" had, in fact, been characteristic of defendant's seizures, he would have expected that defendant would have exhibited "[n]ondirected behaviors. Thrashing, kicking, [and] jumping[.]"
During Dr. Greenfield's examination of defendant, defendant recalled with clarity the events pertaining to the karate tournament and dinner the night before the September 2003 incident, as well as his exchange with his wife. Defendant recalled being on top of his wife on the floor in the kitchen, which was when he was allegedly having a seizure. Defendant further remembered his older daughter's jumping on his back, and even recalled Julia's trying to stop his attack upon Sylvia.
Dr. Greenfield catalogued a number of other instances during the September 2003 episode, which reflected that defendant had a clear memory of exchanges at a time when, according to defendant, he was having a seizure. These memories and recollections, combined with defendant's history and the expert's clinical examination, led Dr. Greenfield to conclude that defendant had acted knowingly and purposefully during the September 2003 episode, with awareness, and in a goal-oriented manner. Dr. Greenfield concluded that defendant was able to distinguish right from wrong at the time, and he knew that he had behaved badly.
Dr. Greenfield further opined that defendant was not suffering from a mental disease or defect at the time of the 2003 attacks and that he did not suffer from diminished capacity. Dr. Greenfield explained that Julia's injuries were instead consistent with directed stabs and blows intended to kill. He noted that Julia's burns from a hot substance further supported his opinion that defendant had acted with purpose and with a specific goal. As Dr. Greenfield put it, "[defendant] formulated a plan. He carried it out. He was aware that he would get in trouble and he acted accordingly[.]" The fact that defendant thereafter tried to hide in another room of the house further supported Dr. Greenfield's opinion that defendant "realized that he was in trouble, no question, that he had done the wrong thing."
I. Verdict and Sentence
Upon considering these proofs, the jury found defendant guilty of the following crimes charged in the indictment: first-degree murder of Julia, N.J.S.A. 2C:11-3a(1), -3a(2) (count one); second-degree aggravated assault of Sylvia, N.J.S.A. 2C:12-1b(1) (count two); third-degree aggravated assault with a deadly weapon upon Sylvia and the older daughter, N.J.S.A. 2C:12-1b(2) (counts four and five); third-degree possession of a weapon with an unlawful purpose, N.J.S.A. 2C:39-4d (counts six and seven); and third-degree aggravated assault against police officers, N.J.S.A. 2C:12-1b(5) (counts eight and nine). As to count three, which had charged defendant with aggravated assault upon the older daughter, the jury found defendant guilty of the lesser-included offense of simple assault, N.J.S.A. 2C:12-1a(1).
On September 6, 2007, the trial court sentenced defendant as follows: forty years in prison for murder (count one) with an 85% parole disqualifier; six years for second-degree aggravated assault (count two) with an 85% parole disqualifier, to run consecutively to count one; four years for third-degree aggravated assault with a deadly weapon (count five), to run consecutively to counts one and two; and four years for each of the third-degree aggravated assaults against police officers (counts eight and nine), to run consecutively to count one. The court merged the simple assault conviction (count three) with the conviction for third-degree aggravated assault with a deadly weapon (count five). The court merged the third-degree aggravated assault with a deadly weapon conviction (count four) with the second-degree aggravated assault (count two), and also merged the third-degree possession of a weapon and the unlawful purpose convictions (counts six and seven) with counts one, two and five.
On appeal, defendant raises the following points for our consideration:
POINT I
FAILURE OF THE STATE TO PROVE CULPABILITY PURSUANT TO N.J.S.A. 2C:2-2 PROHIBITS AFFIRMATION OF THE CONVICTION. INTENTIONAL WRONGDOING HAS NOT BEEN PROVEN BEYOND A REASONABLE DOUBT.
POINT II
[THE] STATE'S EXPERT [] TESTIMONY PERMITTED BY TRIAL COURT'S FAILURE TO ABIDE BY THE RULES OF EVIDENCE, REQUIRES REVERSAL OF THE JURY'S FINDING OF GUILT. (PARTIALLY RAISED BELOW AT TIME OF EVID. 404B HEARING). ERROR WAS EGREGIOUS AND RAISED TO A LEVEL OF A DENIAL OF DUE PROCESS WHEN COMPOUNDED BY THE MISCONDUCT OF THE PROSECUTION.
A: THE CASE AT BAR WAS A "PITCHED CREDIBILITY BATTLE" BETWEEN THE EXPERTS AND YET THE PROSECUTION INTENTIONALLY MADE IMPROPER COMMENTS DESIGNED TO INFLUENCE THE JURY. THE COMMENTS WENT BEYOND THE REASONABLE
INFERENCES AND TIPPED THE CREDIBILITY SCALE. STATE V. FROST, 158 N.J. 76 (1999). STATE V. RAMSEUR, 106 N.J. 123, 322 (1987). MISCONDUCT CONSTITUTED A VIOLATION OF FEDERAL LAW AS WELL. DONNELLY V. DECHRISTOFORO, 416 U.S. 637, 642-43 (1974), WHERE PROSECUTOR STATED DEFENSE EXPERT WAS BIAS[ED] AND IMPLIED HE WAS A LIAR AND AN ACCESSORY AFTER THE FACT TO THE INSTANT HOMICIDE (NOT RAISED BELOW).POINT III
TRIAL COURT'S DETERMINATION THAT POLICE OFFICER COULD TESTIFY THAT DEFENDANT CORDOBA "EXHIBITED EVIDENCE OF CLEAR CUT EXTREME ANGER" EVID. R. 403 WAS PLAIN ERROR. IT [USURPED] THE FUNCTION OF THE EXPERT WITNESSES UNDER THE UNIQUE CIRCUMSTANCES AT BAR AND CONSTITUTED A CONCLUSIONARY LABEL WHICH REFLECTED THE IMPOSITION OF THE TRIAL COURT'S VIEW OF THE MENTAL STATE OF THE DEFENDANT UPON THE JURY THEREBY DENYING THE DEFENDANT AN IMPARTIAL JURY.
POINT IV
FAILURE TO PROVIDE ADEQUATE JURY CHARGES ON MATTERS OR ISSUES THAT ARE MATERIAL IS PRESUMED TO BE REVERSIBLE ERROR IN CRIMINAL PROSECUTIONS.
A. THE JURY WAS NOT INFORMED IN
AN "UNFILTERED" MANNER THAT THE STATE HAD THE BURDEN TO PROVE THAT DEFENDANT CORDOBA HAD THE MENS REAS TO COMMIT PURPOSEFUL AND/OR KNOWING CRIMINAL ACTS DUE TO DIMINISHED CAPACITY. HUMANIK V. BEYER, 871 F.2D 432, 443 (1989 (3RD CIR), CERT. DENIED, 493 U.S. 812, 110 S. CT. 57, 107 L. ED. 2D 25 (1989).
B. DEFENDANT CORDOBA RECEIVED IMPROPER AND INFLAMMATORY JURY CHARGES INTERJECTED INTO THE INSANITY CHARGE, WHICH IMPERMISSIBLY INTERFERED [WITH] THE JURY'S ABILITY TO ASSESS THE EVIDENCE OF DIMINISHED CAPACITY AND THE DEFENSE OF INSANITY.POINT V
C. FAILURE TO INCLUDE DIMINISHED CAPACITY ON THE WRITTEN VERDICT SHEET MISLED THE JURY AS TO THE
MATTERS IT MUST CONSIDER.
D. ERROR TO CHARGE PASSION PROVOCATION AS IT WAS NOT WARRANTED. N.J.S.A. 2C:1-8E. STATE V. BRENT, 137 N.J. 107, 113-114 (1994). IN THE ALTERNATIVE THE JURY CHARGE CONSTITUTED PLAIN ERROR AS IT WAS GIVEN A SEQUENTIAL MANNER. STATE V. COYLE, 119 N.J. 194, 221 (1999).
E. IT WAS PLAIN ERROR TO CHARGE TRANSFERRED INTENT UNDER THE CIRCUMSTANCES PRESENTED AT BAR.
FAILURE TO IMPANEL UNBIASED JURY CONSTITUTED PLAIN ERROR AND DEMANDS NEW TRIAL.
POINT VI
ENTIRE RECORD DEMONSTRATES THAT DEFENDANT CORDOBA RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL WHICH CULMINATED IN A COMPLETE LOSS OF A TRIAL BY JURY AND AT BEST CONSTITUTED A DEFENSE PROSCRIBED BY STATE V. GARRON, 177 N.J. 147, 180 CERT. DENIED, 540 U.S. 1160, 124 S. CT. 1169, 157 L. ED. 2D 1204 (2004). IN THE ALTERNATIVE REMAND IS REQUESTED TO PRESENT A CORRECT MEDICAL ANALYSIS OF THE
DEFENDANT CORDOBA'S LACK OF MENS REAS. RIGHT TO PCR IS NOT WAIVED.
A. STATE V. GARRONPOINT VII
B. FAILURE TO CONDUCT A PRELIMINARY HEARING REGARDING DEFENDANT'S CUSTODIAL STATEMENTS DEMONSTRATES FURTHER INEFFECTIVE ASSISTANCE OF COUNSEL SHOWN ON THE RECORD. STATE V. JOHNSON, 365 N.J. SUPER. 27, 33-34 (APP. DIV. 2003) CERTIF. DENIED, 179 N.J. 272 (2004).
C. FAILURE TO MOVE FOR MOTION TO ACQUIT AS TO COUNT XIII AND IV PURSUANT TO R. 3:18-1 EVIDENCES FURTHER INEFFECTIVE ASSISTANCE OF COUNSEL. COURT MUST OVERTURN CONVICTIONS AS THEY ARE AGAINST THE WEIGHT OF THE EVIDENCE. RIGHT TO APPEAL WAS PRESERVED BY ACTION OF THE TRIAL COURT.
DEFENDANT CORDOBA IS ENTITLED TO A REMAND FOR SENTENCING.
Having fully considered these arguments in light of the trial record and the applicable law, we affirm defendant's convictions and the sentences imposed in all respects.
II.
A.
The primary issue raised by defendant on this appeal is his contention that the verdict was not supported by sufficient evidence demonstrating his culpable state of mind under N.J.S.A. 2C:2-2 to commit murder. Although defendant did not move for a new trial on this particular basis, he now contends in his brief that because "his mind was defective" at the time of Julia's killing and the related assaults, a reasonable fact-finder could not have found him guilty of acting "knowingly" or "purposely," as is required under the murder statute. Defendant further argues that the State's failure to prove his necessary mental state, coupled with other alleged flaws in the trial, comprise cumulative error, see State v. Orecchio, 16 N.J. 125, 129 (1954), entitling him to a new trial. We reject these contentions.
N.J.S.A. 2C:2-2a provides that, depending upon the offenses that are charged, the State must prove that a defendant "acted purposely, knowingly, recklessly, or negligently" with respect to all of the necessary elements of an alleged offense. According to N.J.S.A. 2C:2-2b(1), an individual acts "purposely" when he or she consciously engages in conduct in order to cause a specific result. Alternatively, a person acts "knowingly" when he or she is aware of his or her own conduct. N.J.S.A. 2C:2-2b(2). The requirement of a "knowing" state of mind is that "it be shown that it was the purpose of the actor to commit or to aid in committing the substantive crime in question." Cannel, New Jersey Criminal Code Annotated, comment 3 on N.J.S.A. 2C:2-2b(1), -2b(2) (2012) (citing State v. Harmon, 104 N.J. 189, 203 (1986)).
The New Jersey statutes provide that, subject to certain exceptions not applicable here, criminal homicide constitutes murder when the defendant "purposely" or "knowingly" causes the death of the victim or serious bodily injury that results in death. See N.J.S.A. 2C:11-3a(1) (regarding purposeful conduct), -3a(2) (regarding knowing conduct); State v. Cruz, 163 N.J. 403, 417-18 (2000); see also State v. Josephs, 174 N.J. 44, 99-100 (2002).
The crime of second-degree aggravated assault similarly calls for proof that the defendant caused, or attempted to cause, serious bodily injury to another person either "purposely or knowingly." N.J.S.A. 2C:12-1b(1). The aggravated assault definition also includes a third possibility that the defendant "recklessly" caused such serious bodily injury "under circumstances manifesting extreme indifference to the value of human life." Ibid.; see also State v. Chiarello, 69 N.J. Super. 479, 494-95 (App. Div. 1961) (applying the same principles under pre-Code law), certif. denied, 36 N.J. 301 (1962).
Here, defendant alleges that, in light of his history of seizures, the State failed to present sufficient proof that he acted with a purposeful or knowing state of mind on the morning of September 15, 2003 when he killed his mother-in-law and attacked his wife, two of his children, and several police officers. He maintains that no reasonable fact-finder could have concluded that he possessed the mens rea to commit the murder and the various aggravated assaults for which the jury found him guilty. We disagree.
The jury heard credible expert testimony from Dr. Greenfield that defendant was both conscious of his actions and aware of his conduct for the entire period during which he committed his violent acts in September 2003. More specifically, Dr. Greenfield explained that defendant acted purposely because he engaged in goal-directed behavior when he stabbed Sylvia and killed Julia. The stab wounds that defendant inflicted on Julia were manifestly intended to kill, and the burns to her body were inflicted with the evident purpose of doing harm.
Dr. Greenfield underscored that defendant recalled the events of the evening prior to the stabbing, his experiences throughout the night, and the exchange in the kitchen the following morning. Also, defendant recalled his daughter's jumping on his back and Julia trying to stop the attack on Sylvia.
According to Dr. Greenfield, defendant acted "in a knowing and purposeful way" in all of his behavior on the day of the attacks. By Dr. Greenfield's assessment, defendant manifestly knew right from wrong, and knew that he had performed bad acts based on his behavior. Thus, Dr. Greenfield reasonably concluded that defendant was not having a seizure at the time of any of the 2003 attacks.
Similarly, the jury heard credible testimony from defendant's two daughters, who both described how the stabbings were different from defendant's normal seizure behavior. Like Dr. Greenfield, both daughters perceived that defendant was not having a seizure at the time of the September 2003 episode. Although the daughters are not mental health experts, their first-hand observations and repeated experience with defendant's prior seizures was probative evidence that factually reinforced Dr. Greenfield's professional assessment.
We are mindful that defendant's own mental health experts, Dr. Samuel and Dr. Glass, offered competing opinions that defendant had not, in fact, acted knowingly or purposely when he attacked his family members on the morning of September 15, 2003. Nevertheless, the jury was entitled to reject their opinions and instead adopt the expert opinions of the State's expert, Dr. Greenfield. See, e.g., Brown v. Brown, 348 N.J. Super. 466, 478 (App. Div.), certif. denied, 174 N.J. 193 (2002); see also Model Jury Charge (Criminal), "Expert Testimony" (2002). In fact, during his summation, defense counsel specifically argued that the issue of whether his client "knew the nature and quality of the acts" he had committed would turn upon whether the jury would believe, on the one hand, Dr. Greenfield, or, on the other hand, Dr. Samuel and Dr. Glass.
Moreover, as we have already described in Part I, supra, the defense experts made several significant concessions during their respective cross-examinations. Among other things, Dr. Samuel admitted that defendant was aware of the events of the prior night and throughout the morning of September 15, including entering the kitchen. Defendant was aware that his daughter jumped on his back, and recalled being scared and hiding when he heard the police officers. Dr. Samuel also conceded that defendant would have needed a certain amount of motor control to remove knives from a butchers block and later replace them, which suggests that he was conscious of his actions — both before and after his attacks on all three of the victims inside the house.
Dr. Glass, meanwhile, acknowledged that defendant had a "bizarre awareness" of the events surrounding the stabbings. Moreover, defendant points to no possible reason — other than for the illegal purpose of attacking the victims — for why he might have possessed or planned to use the kitchen knife.
As for the assaults on the police officers, Lieutenant Davenport credibly described defendant's intentional kicking of him. Officers McFadden and Mattioli both credibly described defendant's kicking of McFadden in the cell after trying — apparently purposely — to divert their attention. The jury was entitled to evaluate the credibility of these police witnesses and find them credible. See State v. Locurto, 157 N.J. 463, 471-72 (1999) (noting the need for appellate courts to defer generally to the factual findings made by the trier of fact).
An actor's intent generally can be inferred from his or her actions. Rutgers 1000 Alumni v. Rutgers, 353 N.J. Super. 554, 578 (App. Div. 2002). Here, there was ample evidence for the jury to determine that throughout the September 15 episode, defendant acted purposely and knowingly within the meaning of N.J.S.A. 2C:2-2.
As an alternative argument, defendant contends that his seizure disorder and "its effectiveness as a defense dealing with brain malfunctions [were] portrayed as simply epileptic by the State and never once was it concisely and forcefully illustrated to the jury as behavior that was addressed under N.J.S.A. 2C:2-2 General Requirements of Culpability." This argument is unavailing.
The State's burden was not to "illustrate" defendant's epilepsy to the jury, but rather, to establish that he acted with knowledge and purpose. Insanity is an affirmative defense that the defendant must demonstrate by a preponderance of the evidence. N.J.S.A. 2C:4-1. The State was under no obligation to explain defendant's theory of the case pertaining to seizure disorders. The State was not required to discuss seizure disorders in specific terms. It satisfied its burden of proof here by demonstrating from the credible evidence that defendant acted knowingly and purposely with regard to the material elements of the crimes that were charged.
Defendant further suggests that he was denied a fair trial by an accumulation of errors. First, defendant asserts in his brief that the trial was "confusing," which caused an improper shifting of the burden of proof. As an example of such confusion, his brief alleges that "all parties agreed [defendant's] brain was malfunctioning." It is true that in the prosecutor's summation, the State did not challenge defendant's "documented history of a seizure disorder." Nevertheless, the State pointedly argued that defendant had not "raise[d] that diagnosis to the level of a mental defect," and the prosecution also challenged "next leap they take," asserting that defendant's conduct was "so controlled by this alleged mental defect that he was incapable of knowing what he was doing[.]"
Defendant further claims that the trial court stated that it had improperly shifted the burden of proof on the question of his guilt. This argument is also without merit. In the final jury charge, the judge correctly identified which parties had the burden of proof on the respective elements of the offenses and defendant's affirmative defenses.
Defendant also suggests that Dr. Greenfield was "uncontrolled" by the trial court and went beyond providing expert opinion by claiming that defendant was guilty. However, there is no evidence in the record that Dr. Greenfield made such a statement, or even suggested that defendant was guilty. Dr. Greenfield's testimony appropriately focused on his expert belief that defendant was not suffering from a seizure when the stabbings and other attacks occurred. The expert's testimony did not usurp the jury's fact-finding role.
Additionally, as to defendant's claim of cumulative error, defendant complains that the prosecutor committed an error by making an ill-advised distinction between being "crazy" and being legally insane in his summation. In order for defendant to prevail on this argument, the prosecutor's comments need to be "clearly and unmistakably improper" and must have significantly prejudiced defendant's right to a fair trial. State v. Timmendequas, 161 N.J. 515, 575 (1999) (internal quotation omitted), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001); see also State v. Frost, 158 N.J. 76, 83 (1999). In making that assessment, we must review the "tenor of the trial and the responsiveness of counsel and the [trial] court to the improprieties when they occurred." Timmendequas, supra, 161 N.J. at 575; see also Ramseur, 106 N.J. 123, 322-23 (1987), cert. denied sub nom., Ramseur v. Beyer, 508 U.S. 947, 113 S. Ct. 2433, 124 L. Ed. 2d 653 (1993). Applying these standards, we reject defendant's claim of unfair prejudice.
The prosecutor was explaining in her summation that there is a difference between the colloquial term "crazy" as used by people in their daily lives, and the legal definition of insanity. At the time the remarks were made, the defense did not object, indicating that defendant believed her comment to be acceptable. Id. at 323. Also, defendant suffered no prejudice from this comment because the prosecutor was only highlighting that there is a difference between slang versions of words used in everyday conversation and a legal definition that was going to be applied by the court. In fact, the court did define for the jurors the legal concept of insanity, as opposed to diminished capacity, which is also defined.
Because none of these discrete arguments have any merit, we reject defendant's claim that he is entitled to a new trial based upon the principle of cumulative error. See Orecchio, supra, 16 N.J. at 129 (noting that a new trial should be granted only if the legal errors in the "aggregate" resulted in an unfair trial).
B.
Defendant argues that the trial court misapplied N.J.R.E. 404(b) with respect to the proofs regarding the April 1998 episode in which he had attempted to gouge out Sylvia's eye. Defendant argues that the State's expert, Dr. Greenfield, was allowed to comment about the April 1998 episode in a manner which impermissibly impugned defendant's character. Defendant further contends that the prosecutor made improper arguments about the April 1998 episode and other matters in his summation. We reject these contentions.
Prior to opening statements, the trial court conducted a Rule 104 hearing, in which it carefully evaluated the admissibility of defendant's prior acts under N.J.R.E. 404(b). Both the State and the defense wanted the jury to know about the April 1998 attack on Sylvia. The defense, in particular, wanted to show that defendant had behavioral problems allegedly stemming from a seizure disorder. The judge correctly recognized that such proofs may be admitted under N.J.R.E. 404(b), consistent with State v. Burris, 357 N.J. Super. 326, 335-36 (App. Div. 2002), certif. denied, 176 N.J. 279 (2003), which held that a diagnosis of a psychiatric disorder can be partially based on an analysis of prior behaviors.
Anticipating that the defense would be relying, in part, upon the April 1998 episode in its own case-in-chief as illustrative of defendant's seizure problems, the judge fashioned a limiting instruction that he gave during the State's case after the testimony of the older daughter. That instruction, in pertinent part, was as follows:
[Y]ou have now heard testimony about an incident in April of 1998, between Mr. and Mrs. Cordoba. Now, I must tell you that normally such evidence is not permitted under our Rules of Evidence. Our rules specifically exclude evidence that a defendant, a person charged, has committed [other] wrongs or bad acts when it is offered only to show that he has a disposition or tendency to do wrong and therefore must be guilty of the charged offenses. Before you can give any weight to this evidence you must be satisfied that the defendant committed the other wrong or bad act, and if you are not satisfied, you may not consider it for any purpose. However, our rules do permit evidence of other wrongs or bad acts when the evidence is used for certain specific narrow purposes. And in this case, the State is arguing that theThe judge also took pains to assure that the jurors would not misuse the April 1998 assault as proof that defendant has a "bad character," as proscribed by N.J.R.E. 404(b), giving the jurors this further admonition:
prior incident or incidents as alleged to have occurred between the defendant and his wife is or are offered to demonstrate the defendant's intent, motive, plan, and absence of mistake at the time of the incident which is the subject matter of this indictment and that in which Julia Bradway died. The defense is arguing in contrast that these earlier incidents can be offered as an example of prior behavior or behaviors in similar settings evidencing a pattern of Mr. Cordoba's seizure disorder.
[Emphasis added.]
Now, the important thing to remember is this: in either event, or with either proffered theory, you may not use such evidence of a prior incident or prior incidents to decide that the defendant has a tendency to commit bad acts or that he is a bad person. That is, you may not decide that just because he has committed another bad act or acts that he must be guilty of the present crime. The evidence has been admitted [] only to help you decide the specific questions of, on one hand, intent, motive, plan, absence of mistake; on the other hand, evidence of a pattern of behavior during seizure disorder.The judge then repeated that the jury must not consider the evidence of the prior acts "for any other purpose" and that they may not find defendant guilty "at this time simply because the State has offered evidence that he committed another bad act on a previous occasion." Neither side objected to these instructions when given the opportunity.
[Emphasis added.]
Dr. Samuel testified on behalf of defendant and addressed the April 1998 assault in connection with defendant's seizure disorder, as did Dr. Glass, who used the April 1998 incident, in part, as the basis for his opinion that defendant was suffering from a seizure disorder in 2003. Defendant himself also addressed the April 1998 assault in his own testimony. Then, on behalf of the State, Dr. Greenfield addressed the commonalities between the 1998 and 2003 episodes. When the court gave its final instruction, it repeated its earlier instructions about the limited use of the 1998 episode and reminded the jury of how both the State and defendant respectively wanted them to interpret the evidence relating to the April 1998 event.
We are unpersuaded by defendant's contention that the court's actions "forced" him to present a particular defense. The record reflects that defense counsel requested that the court admit evidence of the April 1998 incident and provide an instruction after the older daughter testified. Defendant now claims that the court failed to balance the potential probity and prejudice of the evidence, as discussed in State v. Cofield, 127 N.J. 328, 334-35 (1992). However, in Cofield the defense did not want the evidence of prior acts admitted. Id. at 332-33.
Here, both parties insisted that the evidence of the April 1998 assault of Sylvia be admitted, albeit for differing reasons, and each side sought to use it for a particular purpose that advanced its own perspective. Any error by the trial court was invited by defendant's own strategic decision. See State v. Sykes, 93 N.J. Super. 90, 95 (App. Div. 1966) (a defendant cannot insist that the court act in a particular way and then subsequently claim the court's action was unfair). An analysis of the Cofield balancing factors applicable in other different settings was unnecessary.
Defendant's remaining arguments concerning the April 1998 assault and other related subjects similarly lack merit. The court's jury instructions were meticulously crafted and fair. They were consistent with the governing legal principles of admissibility and evidential use, and they were issued to the jury at appropriate times.
Dr. Greenfield's expert testimony appropriately discussed the April 1998 episode, which supported his opinions that, throughout the 1998 and 2003 incidents, defendant experienced a clarity of memory that was inconsistent with having a seizure or with resistive violence; that defendant's behavior in 1998 and 2003 was not consistent with his prior seizure history; and that defendant acted in a goal-oriented manner when he attacked Julia. Here, as in Burris, supra, 357 N.J. Super. at 335-36, the State's expert rendered a proper expert opinion, which resulted in no error. Dr. Greenfield was vigorously cross-examined by defense counsel about his opinions. His isolated comment during cross-examination, noting that he had drawn a "common sense" inference that defendant knew what he was doing, did not transgress the bounds of N.J.R.E. 702 nor did that stray remark violate the fairness principles reflected in N.J.R.E. 403.
Lastly, we discern no improper commentary by the prosecutor during closing argument, warranting relief. Defendant did not object to the closing argument, indicating that the arguments advanced were not prejudicial. Timmendequas, supra, 161 N.J. at 576. The prosecutor's robust emphasis upon the views of the State's own expert, Dr. Greenfield, and his criticisms of Dr. Glass's testimony for the defense were all within the ambit of fair comment, and were responsive to the defense's own points in summation, which implied that Dr. Greenfield's testimony for the State was superficial and biased. See State v. Morais, 359 N.J. Super. 123, 133 (App. Div.), certif. denied, 177 N.J. 572 (2003).
There also was no error in the playing of the audiotape of the 9-1-1 call that had been made from the neighbor's house after defendant had attacked Julia and Sylvia. The tape was admitted without objection during the trial, and no objection was made when the tape was replayed during summation. Moreover, the customary final charge reminded the jurors that they were to decide the case based upon the evidence and not based upon passion, prejudice, or sympathy.
C.
Defendant next contends that the trial court erred by allowing police officers to testify that defendant appeared "angry" in connection with his attacks on them. In a related vein, he complains that the court failed to conduct a "searching and exploratory" hearing in relation to Officer Stumpf's testimony about her observations of defendant and about an intake log she completed at the police station, which was not itself admitted into evidence. We conclude that the officers' descriptions of defendant were admissible and that Stumpf's testimony was appropriate.
At trial, defense counsel objected to Stumpf's testimony about her perceptions of defendant after his arrest because she was not an expert qualified to identify mental illness. The trial judge adequately took that concern into account in deciding, after a Rule 104 hearing, that Stumpf's log entries were inadmissible insofar as they addressed whether defendant was exhibiting signs of mental illness. The judge acted within his discretion, see State v. Nelson, 173 N.J. 417, 470 (2002), in allowing Stumpf to testify about her first-hand lay observations of defendant's behavior, including his screaming and threatening outbursts, his angry demeanor, his pacing around his cell, his glaring at the officer, and his combative posture. Such observations based upon personal knowledge and commonplace inferences are properly admissible from a lay witness. See State v. Bealor, 187 N.J. 574, 586 (2006); see also N.J.R.E. 602 (regarding a witness's personal knowledge); N.J.R.E. 701 (regarding admissible lay opinion). The judge also did not abuse his discretion in permitting Stumpf to testify that defendant did not appear to pose a security risk because he was handcuffed and contained and that he did not state that he was suicidal. Similarly, the court properly allowed the other testifying police officers to describe defendant's behavior that they had observed. These proofs were all relevant to the critical disputed issue of defendant's state of mind on the day of the September 2003 crimes.
Defendant has not demonstrated that the probative value of this testimony was substantially outweighed by undue prejudice or other countervailing factors under N.J.R.E. 403. Nor has he shown that the trial court's discretion was abused.
D.
Defendant also argues that, in a number of respects, his trial attorney failed to provide him with the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 692-93 (1984); see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland test of constitutional ineffectiveness in New Jersey). We decline to address these contentions at this time, which are instead preserved for a timely petition for post-conviction relief. State v. Preciose, 129 N.J. 451, 460-61 (1992).
E.
Defendant challenges his sentence on multiple grounds. As a general matter, he contends that the trial court erred by not considering his mental incapacity and other circumstances as mitigating factors, while allegedly double-counting certain aggravating factors. Beyond that, he asserts that it was error for the court to sentence him to consecutive jail terms for the attacks on the police officers and to sentence him at all for the "simple assault" on his daughter, which, he urges, was merely a result of her surprising him by jumping on him during the altercation. We reject these contentions and sustain the sentence that was imposed.
We note that the jury in this case answered a special interrogatory and found that the "aggravating factor" of the nature and circumstances of the offense was proven beyond a reasonable doubt. In that same special interrogatory response, the jury rejected as an aggravating factor the gravity of the offense, in relation to what defendant knew about the victim's vulnerability. In sentencing defendant, the judge acknowledged the jury's findings on these factual matters.
The judge specifically found the following aggravating factors under N.J.S.A. 2C:44-1a applicable: (1) the nature and circumstances of the offense and defendant's role; (3) the risk that defendant would commit another offense; (9) the need to deter defendant and others; and, to a limited degree, (12) the victim's age, though it noted that Julia was not the intended victim. N.J.S.A. 2C:44-1a(1), (3), (9), (12). The judge declined to apply aggravating factor six concerning the extent of a prior record. N.J.S.A. 2C:44-1a(6). Nonetheless, the judge harmonized that determination with a finding that defendant was a risk to re-offend, based on his "extreme[ly] abhorrent and unbelievable level of anger and violence" that was exhibited in the September 2003 offenses, which the judge noted could manifest "without much warning" and was an ongoing condition. The sole mitigating factor found applicable was defendant's lack of any significant criminal background, except for a simple assault conviction. N.J.S.A. 2C:44-1b(7). The judge found that factor to have "great" weight. The judge ultimately concluded that the aggravating and mitigating factors justified a "mid-range" sentence on each conviction. As noted in Part I, supra, the judge imposed a term of forty years on the murder, plus eighteen additional years of consecutive sentences on the related aggravated assaults on Sylvia, the older daughter, and the two police officers. The court also applied applicable periods of parole ineligibility.
Our standard of review of the trial court's sentencing determinations is limited. If a sentencing court properly identifies and balances the applicable aggravating and mitigating factors, and their existence is supported by sufficient credible evidence in the record, an appellate court should affirm the sentence. State v. Carey, 168 N.J. 413, 42627 (2001); State v. Megargel, 143 N.J. 484, 493-94 (1996). A sentence that is so imposed, consistent with the guidelines, should be modified only if it "shocks the judicial conscience." State v. Roth, 95 N.J. 334, 364 (1984); see also State v. Bieniek, 200 N.J. 601, 611-12 (2010) (discouraging appellate courts from "second-guessing" the sentencing assessments of trial judges that are based upon the pertinent aggravating and mitigating factors).
Applying this limited standard of review, we find no reason to disturb the sentences imposed by the trial court. The sentences do not shock the judicial conscience, given the brutal manner in which defendant stabbed, burned, and disfigured his mother-in-law and his related violent attacks upon his wife, daughter, and two police officers. The trial court adequately took into account defendant's background in imposing custodial terms that were not at the high end of any of the applicable sentencing ranges.
We also discern no error in treating, as consecutive, rather than as concurrent, the sentences for aggravated assault upon Sylvia, the assault on the older daughter with a deadly weapon, and the aggravated assaults upon the police officers. Those offenses were distinct and involved different victims, and justifiably were not treated as concurrent offenses, consistent with the general principles set forth in State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).
F.
The balance of defendant's arguments raised in his brief, including his claim of error during jury selection, lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION