Opinion
DOCKET NO. A-1995-13T2
01-15-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. PAIGE A. PFEFFERLE, Defendant-Appellant.
Michael Confusione argued the cause for appellant (Hegge & Confusione, L.L.C, attorneys; Mr. Confusione, on the brief). Robin A. Hamett, Assistant Prosecutor, argued the cause for respondent (Mary Eva Colalillo, Camden County Prosecutor, attorney; Ms. Hamett, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes, Koblitz and Gilson. On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 11-08-1884. Michael Confusione argued the cause for appellant (Hegge & Confusione, L.L.C, attorneys; Mr. Confusione, on the brief). Robin A. Hamett, Assistant Prosecutor, argued the cause for respondent (Mary Eva Colalillo, Camden County Prosecutor, attorney; Ms. Hamett, on the brief). PER CURIAM
In the early morning hours of September 4, 2010, police responded to the home of then nineteen-year-old defendant, Paige Pfefferle, and found her twenty-one-year-old boyfriend, Matthew Hus, dead from a single stab wound to his chest. Defendant gave varying statements about how Hus was stabbed, but ultimately testified that he stumbled on to a knife she was holding while they were arguing. Defendant contended that Hus had abused her and that she suffered from Battered Woman Syndrome. A jury convicted defendant of first-degree murder, N.J.S.A. 2C:11-3(a)(1)(2), third-degree possession of a knife for an unlawful purpose, N.J.S.A. 2C:39-4(d), fourth-degree unlawful possession of a knife, N.J.S.A. 2C:39-5(d), and third-degree hindering her own prosecution, N.J.S.A. 2C:29-3(b)(1). Defendant was sentenced to the mandatory minimum term of thirty years in prison without the possibility of parole, and on her release, to five years of parole supervision. See N.J.S.A. 2C:43-7.2. On appeal, defendant asserts a number of arguments challenging the admission of her statements to the police and contesting the Battered Woman Syndrome evidence. Having reviewed the facts and applicable law, we discern no reversible errors and affirm.
I.
Defendant and Hus had been dating for several years. Late in the evening on September 3, 2010, Hus picked defendant up from her friend's house and drove her home. Shortly after 2:00 a.m. the next morning, defendant's mother called the police to report that Hus was in medical distress. When the police arrived, Hus was lying unresponsive on the kitchen floor. As the police began to administer aid, they noted blood and a stab wound to Hus' left pectoral muscle. Two of the responding police officers, Officer Joseph Sullivan and Sergeant Michael Moore, then separately spoke to defendant to ascertain what happened to Hus to assist with rescue efforts. Defendant told Officer Sullivan that she and Hus had been arguing and Hus had just collapsed. Defendant also told Officer Sullivan that she thought Hus had hit his chest on something "because it could happen." Sergeant Moore testified that defendant told him that she and Hus were arguing, she started to cry, and Hus collapsed.
The police then found a knife on the kitchen counter with blood on its blade. Subsequent testing showed that Hus' DNA was on the blade and the DNA of both Hus and defendant were on the knife's handle.
Hus was taken to the hospital where he was pronounced dead. At trial, the county medical examiner testified Hus died from a stab wound to his chest that pierced his heart causing massive internal bleeding. The medical examiner opined the knife that caused the wound went into Hus' body at a forty-five degree angle from an "overhand thrust in a downward motion."
Defendant was taken to police headquarters for questioning. Initially, defendant was held in the patrol area of the police station for approximately three hours. During that time, the attending officers testified that they engaged in "general conversations" with defendant, but did not ask her anything about what had happened to Hus. Thereafter, the police formally interrogated defendant and that interrogation was videotaped. Defendant was given her Miranda warnings, she waived those rights and agreed to speak with the officers.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Defendant first told interrogating officers that she and Hus were arguing, they both started to cry, and Hus unexpectedly fell. Defendant yelled at Hus, but he was non-responsive. She then tried to sit him up. At that point, she cried out for help. Her parents came downstairs and the police were called. Later in the interrogation, defendant changed her previous description of events. She told the interrogating officers that Hus was being mean by calling her a liar and arguing with her; she began to cry and she grabbed a knife; Hus came "close to [her] and [the knife] went" into him.
Before trial, the court conducted an N.J.R.E. 104 evidentiary hearing to determine the admissibility of the statements defendant gave to the police. After considering the testimony from police officers and reviewing the videotape of the interrogation, the trial judge found, beyond a reasonable doubt, that defendant had knowingly and intelligently waived her Miranda rights and that she made these statements voluntarily, without force or coercion. The judge ruled that defendant's statements would be admissible at trial. The judge also ruled that the recording of the interrogation was sufficiently complete and reliable to be admitted into evidence. See State v. Driver, 38 N.J. 255, 287-88 (1962) (providing the requirements for the admissibility of recordings).
The State also moved pre-trial to bar defendant's Battered Woman Syndrome expert from testifying about whether defendant was suffering from the syndrome at the time Hus was stabbed. The trial judge granted the State's motion after defense counsel acknowledged that the expert could not offer such an opinion.
As a matter of New Jersey law, "'a battering relationship embodies psychological and societal features that are not well understood by lay observers' and that 'these features are subject to a large group of myths and stereotypes.'" State v. Townsend, 186 N.J. 473, 491 (2006) (quoting State v. Kelly, 97 N.J. 178, 209 (1984)). Battered Woman Syndrome is therefore an appropriate subject for expert testimony. Ibid.
Defendant elected to testify in her own defense at trial. She described her relationship with Hus as involving a pattern of abusive behavior towards her. According to defendant, Hus repeatedly slapped her in the face and hit her with both a tire iron and the claw end of a hammer. When describing the events leading to Hus' death, defendant claimed she was with Hus in the kitchen and they began to argue when she told him that she might be pregnant. Defendant alleged that Hus told her he was going to tie her up and throw her in the Delaware River. Defendant picked up a knife because she thought Hus was going to kill her. She testified that Hus was coming towards her, stumbled, and fell into her. She did not realize at first that the knife had gone into Hus; she did not intend to stab him. Defendant acknowledged to the jury that she was testifying differently from the statement she gave to the police. She told the jury she had not been truthful during her police interrogation because she was scared.
Dr. Neil Blumberg also testified for the defense as an expert in psychiatry. He described for the jury the Battered Woman Syndrome. Dr. Blumberg testified that he had diagnosed defendant as suffering from various disorders including depression, anxiety and a borderline personality disorder. Dr. Blumberg informed the jury that such disorders are commonly seen in people who suffer from Battered Woman Syndrome. Dr. Blumberg was given the following hypothetical:
Assume a 19 year old girl is in a three and a half year long relationship with a 21 year old man as her boyfriend. Assume the girl witnessed as an 11 year old child her own mother being the victim of domestic violence. Assume the girl's relationship evolved into acts of domestic violence where the boyfriend had slapped her on many
occasions. For this hypothetical, assume that on one such occasion, the boyfriend struck her with the claw end of a hammer and on another occasion, the boyfriend hit her with a tire iron. Please assume an inability on the girl's part to terminate the relationship despite these escalating acts of violence.
For this hypothetical, I would like you to include in the facts that you examined this girl for five hours, her parents for an hour and 15 minutes, and you performed psychological testing using the methodology you described today, including the results of the methodology. For this hypothetical question, I would like you to assume that the boyfriend suffered a fatal wound to the heart after telling the girl, I'm going to tie you up and throw you in the river, while walking towards her and assume that the girl picked up the knife.
Also assume that this girl has stated that she feared for her life at that time.
Defense counsel then asked, "[c]an you reach an opinion to a reasonable degree of medical certainty that . . . at the time of this offense in this hypothetical whether the girl was suffering from the battered woman syndrome?" Dr. Blumberg answered, "Yes. . . . It's my opinion to a reasonable degree of medical certainty that that woman was suffering from the battered woman syndrome." Later, on cross-examination, Dr. Blumberg stated, "[w]ell, I -- well, since you're asking me, yeah, I did conclude that she was suffering from the battered woman syndrome."
II.
On appeal, defendant raises the following arguments:
Point 1 The trial court erred in denying defendant's motion to exclude statements made to police on Miranda and Fifth Amendment grounds.
Point 2 The trial court erred in failing to sufficiently charge the jury on how to evaluate defendant's statements to police (plain error).
Point 3 The trial court violated defendant's right to compulsory process and present her defense before the jury by precluding the defense expert from testifying about whether defendant suffered from Battered Women's Syndrome at the time in question and the effect the condition had on defendant's mental state at the time in question (plain error).
Point 4 The trial court's charge to the jury on the relevance of the Battered Women's Syndrome evidence to self defense, passion/provocation manslaughter, and aggravated and reckless manslaughter was incomplete and prejudiced defendant (plain error).
Point 5 The prosecutor committed misconduct before the jury by eliciting testimony from a psychologist on rebuttal and arguing to the jury that the Battered Women's Syndrome is "junk science" (plain error).
Point 6 The cumulative errors warrant reversal.
Defendant first argues that the admission of her statements to the police violated her Miranda and Fifth Amendment rights. Specifically, defendant contends: (1) Sergeant Moore should have provided Miranda warnings to defendant before questioning her at her home; (2) Sergeant Moore should have provided Miranda warnings to defendant at the police station when he engaged in general conversation with defendant; (3) the Miranda warnings provided to defendant at the beginning of her formal interrogation were inadequate; and (4) the record does not demonstrate that defendant's statements were voluntary. Defendant also contends the trial court erred in failing to charge the jury on how to evaluate the statements defendant gave to the police.
To safeguard a suspect's Fifth Amendment right against self-incrimination, statements obtained from a defendant during custodial interrogations are inadmissible as evidence unless the defendant has been advised of his or her constitutional rights. Miranda, supra, 384 U.S. at 492-93, 86 S. Ct. at 1637, 16 L. Ed. 2d at 733-34; see Dickerson v. United States, 530 U.S. 428, 431-32, 120 S. Ct. 2326, 2329, 147 L. Ed. 2d 405, 411-12 (2000). The protections provided by Miranda attach only "when a person is both in custody and subjected to police interrogation." State v. Hubbard, 222 N.J. 249, 266 (2015) (citing State v. P.Z., 152 N.J. 86, 102 (1997)). "Custodial interrogation" has been defined by the United States Supreme Court as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his [or her] freedom of action in any significant way." Miranda, supra, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706. "If the questioning is simply part of an investigation and is not targeted at the individual because she or he is a suspect, the rights provided by Miranda are not implicated." State v. Timmendequas, 161 N.J. 515, 614-15 (1999) (citing State v. Pierson, 223 N.J. Super. 62, 67 (App. Div. 1988)), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). When a suspect is in custody and Miranda warnings are required, a defendant may waive any or all of those rights provided that the waiver is "voluntary, knowing, and intelligent." State v. Hreha, 217 N.J. 368, 382 (2014) (citing Miranda, supra, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706). "Furthermore, the State bears the burden of proving beyond a reasonable doubt that a defendant's confession is voluntary and not resultant from actions by law enforcement officers that overbore the will of a defendant." Hubbard, supra, 222 N.J. at 267.
Here, the trial court conducted a two-day N.J.R.E. 104 evidentiary hearing concerning the admissibility of defendant's statements to the police. During that hearing, all of the police officers with whom defendant spoke testified, and the court reviewed the videotape of the interrogation. At that pre-trial hearing, defense counsel did not challenge the statements defendant gave at the scene to any officer, including Sergeant Moore. Instead, defense counsel focused his arguments on the formal interrogation. The judge found defendant was given her full Miranda warnings at the beginning of the interrogation. The trial court ultimately found that defendant had knowingly and intelligently waived her rights and that her statements were given voluntarily. Thus, the trial judge ruled that all of defendant's statements to the police were admissible.
The video recording did not capture some of the initial Miranda warnings. Nevertheless, the trial court relied on the testimony of the police officers, as well as a written waiver form signed by defendant, and found that the full Miranda warnings were provided to defendant.
"When faced with a trial court's admission of police-obtained statements, an appellate court should engage in a 'searching and critical' review of the record to ensure protection of a defendant's constitutional rights." Hreha, supra, 217 N.J. at 381-82 (quoting State v. Pickles, 46 N.J. 542, 577 (1966)). In conducting that review, however, an appellate court generally does not "independently assess evidence as if [it were] the trial court." State v. Maltese, 222 N.J. 525, 543 (2015) (citing Hreha, supra, 217 N.J. at 382). Instead, an appellate court accords substantial deference to the trial court's finding, "recognizing that the trial court's findings are often 'substantially influenced by [its] opportunity to hear and see witnesses and to have a "feel" of the case.'" Hreha, supra, 217 N.J. at 382 (alteration in original) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)).
A.
We begin our analysis of the Miranda issues by addressing defendant's statements made to Sergeant Moore at the scene. At the Miranda hearing, Sergeant Moore testified that he did not give defendant Miranda warnings at her home because she was not a suspect, she was not in custody, and he was trying to determine what treatment was needed for Hus. Defendant contends that Sergeant Moore's testimony is not credible because by the time he spoke with defendant, Sergeant Moore knew that Hus was dead. Because defense counsel did not challenge defendant's statements to Moore at the evidentiary hearing, the trial judge did not address this issue. Nevertheless, we discern no error. Sergeant Moore's limited questioning of defendant at her home was not coercive or framed to elicit incriminating responses. See State v. Cryan, 363 N.J. Super. 442, 452 (App. Div. 2003) (explaining that there must be a "measure of compulsion" and that defendant's "statements must be 'the product of words or actions on the part of the police that they should have known were reasonably likely to elicit an incriminating response'" (first quoting State v. Ward, 240 N.J. Super. 412, 418 (App. Div. 1990); and then quoting Rhode Island v. Innis, 446 U.S. 291, 303, 100 S. Ct. 1682, 1690, 64 L. Ed. 2d 297, 309 (1980))). Moreover, Sergeant Moore's questions were asked in the context of the police seeking information to carry out their emergency aid function. See State v. Boretsky, 186 N.J. 271, 282 (2006) (explaining that when police officers are seeking information to carry out their emergency aid function, the administration of Miranda warnings are not necessary). Finally, we note that defendant's statements to Sergeant Moore at the scene were consistent with the initial statement she made to the police during her formal interrogation after she had been provided with Miranda warnings. Thus, given all of these circumstances, we discern no reversible error.
B.
Next, defendant argues that Sergeant Moore should have given defendant her Miranda warnings while she was at the police station before the formal interrogation. At trial, Sergeant Moore did not testify about any potentially incriminating statements given by defendant to him while they were waiting at the police station before the formal interrogation. Instead, he described to the jury that he had a "general conversation" concerning where she was going to school, what she was studying, and what sports she played. Sergeant Moore expressly told the jury that he did not discuss anything about the case with defendant during that period of time.
Defendant argues that by engaging in general conversation with defendant, Sergeant Moore was trying to ingratiate himself with defendant and, later during the formal interrogation, he used the trust he had built up to coax defendant into making incriminating statements. Even if we assume the truth of this allegation, there is nothing improper in this law enforcement strategy. See State v. Baylor, 423 N.J. Super. 578, 588-89 (App. Div. 2011) (recognizing that "law enforcement officers may employ deception or trickery in an interrogation of a suspect"); State v. Patton, 362 N.J. Super. 16, 31 (App. Div.) (recognizing that our courts "have permitted the use of trickery in interrogations"), certif. denied, 178 N.J. 35 (2003).
C.
We turn then to the crux of the Miranda issue; that is, whether defendant was given adequate Miranda warnings at the beginning of her formal interrogation and whether her statements were given voluntarily. The trial court expressly found that defendant was given her full Miranda rights. Indeed, defendant was read a Miranda rights form and she initialed each of her rights and signed a waiver. Accordingly, the trial court's finding is amply supported by evidence in the record and we will not disturb that finding.
The trial court also found that defendant knowingly and intelligently waived her Miranda rights and gave voluntary statements during her interrogation. A review of the record establishes that the trial court had sufficient evidence, including testimony from the police officers and the recorded interrogation, to reach that conclusion. Consequently, we find no basis to disturb that finding. See Hubbard, supra, 222 N.J. at 262; Hreha, supra, 217 N.J. at 382.
D.
Defendant also contends that the trial judge erred in charging the jury on how to evaluate her statements. The judge's instructions on how to evaluate defendant's statements were based on the model jury charges. See Model Jury Charge (Criminal), "Statement of Defendant (Allegedly Made)" (2010). Defense counsel made no objection to those instructions at the charge conference. See R. 1:8-7(b). Accordingly, we review this challenge under a plain error standard of review. See R. 1:7-2; State v. Singleton, 211 N.J. 157, 182 (2012). Under that standard, "we must determine whether the [trial] court's . . . charge was plain error possessing the clear capacity to bring about an unjust result." State v. Koskovich, 168 N.J. 448, 529 (2001) (second alteration in original) (quoting State v. Feaster, 156 N.J. 1, 40 (1998), cert. denied, 532 U.S. 932, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001)); see R. 2:10-2. In the context of an alleged error in a jury instruction, "plain error requires demonstration of 'legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" Singleton, supra, 211 N.J. at 182-83 (quoting State v. Chapland, 187 N.J. 275, 289 (2006)).
Defendant argues that the trial court improperly instructed the jury with regard to her statements because the court did not discuss the evidence presented to the jury. Having evaluated the jury instructions in the context of the entire charge, we are satisfied that the court's instructions properly apprised the jury of the legal principles necessary to determine the voluntariness of defendant's statements. There was no error, much less plain error. This argument does not warrant further discussion in a written opinion. See R. 2:11-3(e)(2).
III.
Defendant makes four arguments concerning the Battered Woman Syndrome: (1) the trial court erred by limiting her expert from testifying that defendant suffered from the syndrome at the time of the incident; (2) the trial court gave incomplete and prejudicial instructions to the jury on the relevance of the syndrome to defendant's claim of self-defense and on certain charges; (3) the trial court gave incorrect instructions on evidence admitted pursuant to N.J.R.E. 404(b); and (4) the prosecutor acted improperly in eliciting rebuttal testimony and arguing that the syndrome was "junk science."
Defendant did not raise any of these objections at trial. Accordingly, our review is under the plain error standard, and we will disregard the alleged errors unless it is "clearly capable of producing an unjust result." R. 2:10-2. "Under that standard, defendant has the burden of proving that the error was clear and obvious and that it affected [her] substantial rights." State v. Muhammad, 359 N.J. Super. 361, 372 (App. Div.) (quoting State v. Morton, 155 N.J. 383, 421 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001)), certif. denied, 178 N.J. 36 (2003). The error claimed must be so egregious that it "raise[s] a reasonable doubt as to whether it led the jury to a result it would otherwise not have reached." State v. Weston, 222 N.J. 277, 294 (2015) (quoting Pressler & Verniero, Current N.J. Court Rules, comment 2.1 on R. 2:10-2).
A.
Defendant maintains that the trial court erred by preventing defendant's expert from opining that defendant suffered from Battered Woman Syndrome at the time of the incident. Before trial, however, defendant's counsel acknowledged that the expert should not offer such an opinion. We need not decide whether such a concession constitutes invited error, because in the context of this case there was no plain error. See State v. Jenkins, 178 N.J. 347, 358 (2004) ("[W]hen a defendant asks the court to take his proffered approach and the court does so, [the Supreme Court has] held that [the] relief [would] not be forthcoming on a claim of error by that defendant.").
It has been recognized that evidence of prior domestic abuse and expert testimony on Battered Woman Syndrome is relevant to the jury's determination of whether a defendant had a subjectively honest and objectively reasonable belief that the use of force was necessary for self-protection. E.g., State v. Gartland, 149 N.J. 456, 472-73 (1997); Kelly, supra, 97 N.J. at 202-04; State v. Tierney, 356 N.J. Super. 468, 478 (App. Div.), certif. denied, 176 N.J. 72 (2003); see also State v. B.H., 183 N.J. 171, 201 (2005) (holding that, for duress, defense expert testimony on Battered Woman Syndrome is relevant to "a defendant's subjective perception of a threat from her abuser and, in that respect, can be relevant to her credibility").
Thus, the trial court correctly allowed expert testimony concerning the Battered Woman Syndrome. The actual testimony at trial establishes that there was no plain error. Defendant's expert, Dr. Blumberg, was not restricted in his testimony at trial. Although the trial court had ruled before trial that Dr. Blumberg could not offer an opinion on whether defendant suffered from the syndrome at the time Hus was stabbed, Dr. Blumberg actually gave such an opinion at trial. On direct, Dr. Blumberg was permitted to answer a hypothetical question that mirrored defendant's testimony. Dr. Blumberg then answered the following question: "Can you reach an opinion to a reasonable degree of medical certainty that . . . at [the] time of this offense in this hypothetical whether the girl was suffering from battered woman syndrome?" Dr. Blumberg answered, "Yes. . . . It's my opinion to a reasonable degree of medical certainty that that woman was suffering from battered woman syndrome." On cross-examination, Dr. Blumberg was even more direct when he testified: "Well, I - - well, since you're asking me, yeah, I did conclude that [defendant] was suffering from the Battered Woman Syndrome." Critically, defense counsel used Dr. Blumberg's testimony to argue that defendant suffered from Battered Woman Syndrome and acted in self-defense when Hus was stabbed. In short, any pre-trial limitations on Dr. Blumberg's testimony could not have produced an unjust result because the jury heard Dr. Blumberg offer an opinion that defendant had suffered from the syndrome at the time of the incident.
B.
Next, defendant argues that the jury instruction concerning Battered Woman Syndrome was incomplete and prejudicial because it did not link the syndrome to defendant's self-defense and the charges on passion/provocation manslaughter, aggravated manslaughter and reckless manslaughter. "Clear and correct jury instructions are essential for a fair trial." State v. Randolph, 441 N.J. Super. 533, 558 (App. Div. 2015) (quoting State v. Brown, 138 N.J. 481, 522 (1994)). "[A] reviewing court must evaluate a challenged jury instruction in the context of the entire charge to determine whether the challenged language was misleading or ambiguous . . . ." State v. Nelson, 173 N.J. 417, 447 (2002) (citations omitted). Moreover, "any finding of plain error depends on an evaluation of the overall strength of the State's case." Chapland, supra, 187 N.J. at 289.
Here, the trial judge conducted a charge conference and reviewed all of the proposed instructions with the prosecutor and defense counsel. Defendant neither objected to the instructions, R. 1:7-2, nor offered any requests for modified instructions, R. 1:8-7(b). Contrary to what defendant argues before us, the trial judge did instruct the jury that it was to consider the Battered Woman Syndrome evidence in connection with self-defense, passion/provocation manslaughter, aggravated manslaughter and reckless manslaughter. The trial judge first gave the model jury charge for Battered Woman Syndrome and molded that instruction to the facts of this case. See Model Jury Charge (Criminal), "Battered Woman Syndrome — Defenses" (2007). That instruction was given in connection with defendant's claim of self-defense as part of the instructions for the consideration of the charge of murder. When instructing the jury on passion/provocation manslaughter, aggravated manslaughter and reckless manslaughter, the trial court expressly reminded the jury that they were to consider his earlier instructions about the Battered Woman Syndrome evidence. See Townsend, supra, 186 N.J. at 498-99 (explaining that jury instructions should explain how Battered Woman Syndrome evidence must be assessed).
Consequently, the charge concerning the Battered Woman Syndrome was not misleading when considered in the context of the entire charge. In addition, the State had strong evidence supporting its case. Defendant did not dispute that she was holding a knife and that the knife went into and caused the death of Hus. Defendant's claim of self-defense and the interplay of the Battered Woman Syndrome were clearly presented to the jury. We, therefore, find no plain error.
C.
At trial, the State introduced evidence under N.J.R.E. 404(b) that defendant had previously pushed, slapped, and punched Hus. The trial court gave an instruction to the jury on how it could consider that evidence. Defendant now argues that the instruction was improper because it did not relate the Rule 404(b) evidence to defendant's claim of self-defense. A review of the Rule 404(b) charge, however, establishes that the trial court used the model Rule 404(b) charge and properly molded it to the facts of this case. See Model Jury Charge (Criminal), "Proof of Other Crimes, Wrongs, or Acts (N.J.R.E. 404(b))" (2007). Critically, the judge instructed the jury on the limited use of the Rule 404(b) evidence. Having reviewed the specific Rule 404(b) instructions in the context of the full instructions, we discern no plain error.
D.
Defendant also argues that the prosecutor engaged in misconduct by arguing that Battered Woman Syndrome was not good science, when the State has, in other criminal prosecutions, used the Battered Woman Syndrome to support its positions. Thus, defendant contends that the State should have been estopped from making such an argument. Specifically, defendant challenges some of the testimony of Dr. Catherine Barber, the State's expert in psychology. Dr. Barber testified that Battered Woman Syndrome is "not a mental health diagnosis, per se." In her closing, commenting that many experts believe that Battered Woman Syndrome "is an outmoded concept," the prosecutor then argued that the diagnosis that defendant suffered from the syndrome was based on "junk science."
The Supreme Court has recognized Battered Woman Syndrome as a legitimate and accepted syndrome. See Townsend, supra, 186 N.J. at 491-92 ("It is beyond debate that 'battered women's syndrome has gained general acceptance as a scientific doctrine within the professional community.'" (quoting Kelly, supra, 97 N.J. at 225)). Thus, it was improper for the prosecutor to call the syndrome "junk science." While we strongly disapprove of such a comment, here we do not find that the comment warrants a reversal for a new trial.
Examined in the full context of this case, neither the testimony of Dr. Barber nor the prosecutor's reference to junk science were capable of producing an unjust result. Defendant presented a defense based on self-defense and the Battered Woman Syndrome. She testified in support of that defense and had an expert set forth her contentions about the Battered Woman Syndrome. Defendant's own expert acknowledged that Battered Woman Syndrome was not a diagnosis recognized by DSM-IV-TR. The State's rebuttal testimony and arguments did not rise to the level of plain error. "[P]rosecutors are permitted considerable leeway to make forceful, vigorous arguments in summation." Nelson, supra, 173 N.J. at 472. When reviewing a prosecutor's comments, those comments must be assessed "in the context of the entire trial record." Ibid. Even if the prosecutor's comments amount to misconduct, that misconduct will not be grounds for reversal unless it was "so egregious that it deprived the defendant of a fair trial." State v. Jackson, 211 N.J. 394, 409 (2012) (quoting State v. Frost, 158 N.J. 76, 83 (1999)). Here, the entire trial record demonstrates that defendant was given a fair trial, if not a perfect trial. See State v. Weaver, 219 N.J. 131, 160 (2014) (stating that "[a] defendant is not entitled to a perfect trial," only a fair one).
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th ed. Text Revision 2000). Defendant's expert testified that the fifth edition, which was released in 2013, was not yet available when he wrote his report. --------
IV.
Finally, defendant argues that the cumulative effect of her alleged errors warrants the reversal of the jury verdict. In assessing such a claim, the focus is whether the "cumulative effect can cast sufficient doubt on a verdict to require reversal." State v. Jenewicz, 193 N.J. 440, 473 (2008). As we have already summarized, the trial record establishes that defendant was accorded a fair trial.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION