State of New Jersey v. Brandon Kane ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2739-13T2
STATE OF NEW JERSEY,
Plaintiff-Respondent, APPROVED FOR PUBLICATION
v. March 3, 2017
BRANDON KANE, APPELLATE DIVISION
Defendant-Appellant.
__________________________________
Argued June 8, 2016 – Decided March 3, 2017
Before Judges Ostrer, Haas and Manahan.
On appeal from the Superior Court of New
Jersey, Law Division, Monmouth County,
Indictment No. 11-03-0448.
Michele E. Friedman, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender,
attorney; Jason A. Coe, Assistant Deputy
Public Defender, of counsel and on the
briefs).
Mary R. Juliano, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued
the cause for respondent (Christopher J.
Gramiccioni, Acting Monmouth County
Prosecutor, attorney; Ms. Juliano, of
counsel and on the brief).
The opinion of the court was delivered by
OSTRER, J.A.D.
A jury found defendant Brandon Kane guilty of second-degree
serious bodily injury aggravated assault of M.K. (Marjie),1
N.J.S.A. 2C:12-1(b)(1); second-degree kidnapping of Marjie, as a
lesser-included offense of first-degree kidnapping, N.J.S.A.
2C:13-1(b); third-degree terroristic threats of Marjie, N.J.S.A.
2C:12-3; third-degree significant bodily injury aggravated
assault of C.H. (Charlie), N.J.S.A. 2C:12-1(b)(1);2 and fourth-
degree criminal trespass of Charlie's home, N.J.S.A. 2C:18-3(a),
as a lesser-included offense of second-degree burglary, N.J.S.A.
2C:18-2. The jury acquitted defendant of first-degree attempted
murder of Marjie, N.J.S.A. 2C:5-1, N.J.S.A. 2C:11-3.
Defendant raises four arguments on appeal. First, he
challenges the court's denial of his motion to compel production
of Marjie's pre-assault medical and mental health treatment
records. Second, he claims that several instances of
prosecutorial misconduct deprived him of a fair trial. Third,
he argues there was plain error in the jury instruction. Last,
he challenges the court's weighing of aggravating and mitigating
factors in imposing an aggregate sentence of seven years subject
1
Out of respect for their privacy, we use initials and
pseudonyms for the victims.
2
After the close of the State's case, the court reduced the
original second-degree charge related to the assault of Charlie
to a third-degree aggravated assault.
2 A-2739-13T2
to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Having
considered defendant's arguments in light of the record and
applicable principles of law, we affirm.
I.
The offenses occurred during and after a party at Charlie's
house on the evening of October 18, 2010, and in the early
morning hours the next day. The State presented eyewitness
testimony from party attendees and two neighbors; State
Troopers, including those who discovered the victims and
arrested defendant; physicians who treated Marjie; and an expert
witness who rebutted defendant's defense of temporary insanity.
Defendant called his father, one eyewitness, and two experts in
support of his insanity defense. Although defendant did not
testify, the jury heard his Mirandized statement to police.
Defendant and Marjie had been dating for almost a year when
they celebrated her twenty-first birthday on October 18. The
celebration, which involved significant drinking, was an all-day
affair that ended at Charlie's house around 11 p.m. Present
along with Charlie were his girlfriend and another couple. The
group consumed shots of whiskey, although Marjie denied drinking
at Charlie's house. Marjie admitted she was still tipsy from
before, however.
3 A-2739-13T2
The mood was initially festive, but changed after the
conversation turned to defendant's appearance. He was a body-
builder who had injected himself with anabolic steroids. He
weighed roughly 250 pounds. One person likened defendant to the
Hulk while the group was gathered. Defendant then grabbed a
refrigerator and smashed his head into it repeatedly. As a
result of the bizarre act, Charlie got upset and told defendant
to calm down.
The altercation apparently disturbed defendant, who walked
into the living room. Marjie followed. She asked him if he was
okay and tried to hug him. He head-butted her, knocking her to
the floor and causing a cut under her eye. He then picked her
up and instructed her "to stop crying" and mend her face.
Upon learning what defendant had done, the other two women
scolded defendant. Defendant became enraged that Marjie had
disclosed he struck her. He told Marjie their relationship was
over if she did not leave with him. He also threatened to kill
her if she stayed. But she refused to obey his orders.
Instead, defendant was told to leave and, eventually, after a
violent confrontation with Charlie outside, he complied.
However, less than an hour later, he returned. Charlie and
his girlfriend were arguing near a door to the house.
Defendant, who had earlier accused Charlie of "making out" with
4 A-2739-13T2
Marjie, approached Charlie and punched him in the face,
fracturing his nose and knocking him unconscious.
Defendant located Marjie on the living room floor. She
told him she was trying to sleep, but he did not believe her.
She testified he grabbed her by the hair and dragged her out of
the house, shoeless and coatless. Another one of the party-
goers, who had passed out on a nearby sofa, testified for the
defense that he awoke to observe defendant and Marjie yelling,
cursing and arguing. But he stated that defendant did not drag
Marjie out of the house by her hair.3
Marjie did not weigh much over one hundred pounds. She
testified that defendant pulled her up the street. When she
lost her footing, he simply dragged her along. She kept telling
him to let her go. Marjie testified that he repeatedly told her
he was going to kill her, and asked, "How does it feel knowing
it's your last day to live?" When she tried to break free of
his grip, he lifted her by her hair and punched her at least
twice in the face, close-fisted. She blacked out. When she
awoke, she felt her face gushing blood. He took her to a park
3
The witness's credibility was questionable. He admitted that
his trial testimony was at odds with his statement to police
shortly after the event. He also testified he had been drinking
steadily since the early evening, consuming multiple beers, four
or five shots of whiskey, and painkillers. He did not observe
defendant hit the refrigerator, head-butt Marjie, or punch
Charlie. He also admitted he had been a friend of defendant.
5 A-2739-13T2
and threw her down to the ground. While again threatening her
with death, he kicked, punched, and choked her until she lost
consciousness again.
When she awoke a second time, defendant was cradling her
head as she lay in the field, repeating he was sorry. He asked
her if she was unfaithful to him. He tried to convince her to
make up a story about how she was injured. She said she needed
medical attention, but he did not call 911. Instead, he decided
to take her back to his house. She begged him to take her to
Charlie's house while they were en route, which he did. After
checking to see if anyone was present, he carried Marjie up to a
bathroom and tried to clean her up.
State Troopers then entered the house. They had been
called by two of Charlie's neighbors, who had independently come
to suspect something was awry. As one neighbor headed home, he
noticed the altercation between defendant and Charlie outside
Charlie's house. His wife later heard Charlie's girlfriend
screaming after discovering Marjie was missing from the home.
The responding police searched unsuccessfully for defendant —
they interviewed defendant's father and went to the park — only
to find defendant after he returned to the house with Marjie.
The troopers found defendant standing in the bathroom as
Marjie lay curled on the floor of the shower. She was bleeding
6 A-2739-13T2
profusely. Her eyes were swollen shut. A piece of her lip had
been ripped or bitten off. She had a fist mark on her forehead,
marks on her neck, and "road rash" on her leg. Physicians later
testified she suffered a concussion. As of the trial in 2013,
she still suffered from migraines, vertigo, and post-traumatic
stress disorder (PTSD) related to her head injury. Troopers
also found Charlie in a nearby bedroom. He could not explain
how he got there from the kitchen, where he had been knocked
out.
Defendant told the troopers that Marjie simply fell, but
the police were not persuaded and arrested him. Initially,
Marjie also claimed her injuries were from a fall. But once the
police officers assured her that defendant was in custody, she
told them how he had assaulted her.
In a recorded Mirandized statement, defendant denied
assaulting anyone at any point during the evening. He denied he
struck the refrigerator. He claimed he left the house only to
retrieve his phone charger. He stated that when he returned to
the house, he found Marjie curled up on the living room floor,
screaming, with head and facial injuries. He denied he blacked
out at any time. He also denied that he had taken steroids or
other drugs.
7 A-2739-13T2
Defendant filed two pretrial motions to compel the State to
produce records of Marjie's mental health treatment, drug and
alcohol rehabilitation and counseling, drug prescriptions, and
hospitalization and treatment for an alleged suicide attempt in
2010.4 The court denied the first motion without prejudice. The
court concluded that defendant failed to demonstrate the need or
relevance of the records.
A different judge denied the second motion several months
later. Relying on N.J.R.E. 505 and N.J.R.E. 506, the court
found the requested documents were privileged and defendant
failed to satisfy the test for piercing the privilege as set
forth in In re Kozlov, 79 N.J. 232 (1979), and restated in
Kinsella v. Kinsella, 150 N.J. 276 (1997). The court rejected
the argument the documents were needed to challenge Marjie's
credibility, questioning whether her credibility was at issue
and whether the documents would be relevant to undermining it.
At trial, defense counsel conceded that defendant punched
Charlie, head-butted Marjie, and struck her again in the park.
The crux of the defense was a claim of temporary insanity.
Defendant offered evidence that he suffered from PTSD arising
out of an incident four years earlier in which he was stabbed
4
Defendant also sought records of any toxicology tests performed
at the hospital after the assault, but the parties ultimately
agreed none existed.
8 A-2739-13T2
repeatedly. His expert witness contended that he committed the
assaults in the midst of a "disassociative state" triggered by
the PTSD and influenced by alcohol and drugs. As a result, he
was "acting as if . . . on automatic pilot . . . in more of a
reflexive manner."
Defense counsel also challenged the kidnapping charge,
contending Marjie voluntarily left the house with defendant, and
the burglary charge associated with his entry over Charlie's
objection. He also argued the State overcharged defendant by
alleging attempted murder.
The State's rebuttal expert found "no evidence that Brandon
was psychotic before, during, or following the offense" or that
he "didn't know what he was doing." Rather, he "struck the
person he was angry at." Using the language of N.J.S.A. 2C:4-1,
he opined defendant's actions demonstrated that he understood
the "nature and quality" of his acts and knew that "what he was
doing was wrong."
Following the verdict, the court denied defendant's motion
for a new trial. At the sentencing hearing, the court found
that aggravating factors three (risk of re-offending), six
(extent of prior criminal record), and nine (need to deter)
outweighed mitigating factor eight (conduct the result of
circumstances unlikely to recur). N.J.S.A. 2C:44-1(a)(3), (6),
9 A-2739-13T2
(9); N.J.S.A. 2C:44-1(b)(8). The court noted that defendant's
steroid use and intoxication contributed to his violent
behavior, but did not find mitigating factor four (substantial
grounds tending to excuse or justify conduct), despite
defendant's request that it do so. See N.J.S.A. 2C:44-1(b)(4).
The court sentenced defendant to concurrent seven-year
terms on the second-degree kidnapping and aggravated assault of
Marjie, with eighty-five percent parole disqualifiers and three-
year periods of parole supervision under NERA, N.J.S.A. 2C:43-
7.2. The court imposed a concurrent four-year term on the
third-degree aggravated assault of Charlie, and merged the
criminal trespass and terroristic threat counts into the
remaining counts.
Defendant presents the following points on appeal:
POINT I
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S
DISCOVERY MOTIONS BECAUSE THERE WAS A
REASONABLE PROBABILITY THAT THE MATERIALS
SOUGHT WOULD LEAD TO RELEVANT EVIDENCE; IT
WAS FURTHERMORE A VIOLATION OF DEFENDANT'S
CONFRONTATION RIGHT WHEN THE TRIAL COURT
PREVENTED DEFENSE COUNSEL FROM CROSS-
EXAMINING THE VICTIM AS TO POSSIBLE USE OF
PRESCRIPTION DRUGS. (raised below).
POINT II
MULTIPLE INSTANCES OF PROSECUTORIAL
MISCONDUCT, INCLUDING UNSUBSTANTIATED
ACCUSATIONS AGAINST THE DEFENDANT OF WITNESS
10 A-2739-13T2
TAMPERING IN THE PRESENCE OF THE JURY,
REQUIRE REVERSAL. (partially raised below).
A. The State Improperly Impeached A
Defense Witness By Reference To An
Unsubstantiated Allegation Of Witness
Tampering In Front Of The Jury.
B. The State's Opening And Closing
Statements Contained Improper
Inflammatory Appeals To The Jurors'
Emotions.
C. The State Improperly Exalted The
Prosecution's Position As The
Representative Of The State Of New
Jersey To Lend Credibility To Its
Theory Of The Case.
D. The Prosecutor Improperly Vouched For
The State's Case By Expressing A
Personal Belief In The Validity Of The
Charges In The Indictment.
E. The State Improperly Denigrated The
Defendant's Mental Health Defense.
F. The Cumulative Effect Of The
Prosecutorial Misconduct That Appears
In The Record Was Clearly Capable Of
Producing An Unjust Result And
Therefore Requires Reversal.
POINT III
BECAUSE THE STATE CHARGED MULTIPLE ACTS IN A
SINGLE COUNT OF THE INDICTMENT, THERE WAS A
REAL DANGER OF A FRAGMENTED VERDICT, THUS
NECESSITATING A SPECIFIC UNANIMITY
INSTRUCTION. (not raised below).
POINT IV
DEFENDANT'S SEVEN-YEAR NERA SENTENCE FOR HIS
FIRST INDICTABLE OFFENSE WAS BOTH EXCESSIVE
AND PROCEDURALLY FLAWED.
11 A-2739-13T2
II.
Defendant argues that the court erred in twice denying his
motion to compel disclosure of Marjie's medical, mental health,
and rehabilitation records. We review the trial court's
discovery ruling for an abuse of discretion. State v. Broom-
Smith, 406 N.J. Super. 228, 239 (App. Div. 2009), aff'd, 201
N.J. 229 (2010). We discern none.
A.
Before reaching the issue of privilege, we note that
defendant failed to meet his heavy burden to secure discovery
not mandated by Rule 3:13-3. It also appears he failed to
provide notice of his motion to Marjie, the alleged victim. As
these shortcomings implicate important issues concerning the
confidentiality rights of third party crime victims, we discuss
them separately.
Our criminal discovery rules do not oblige the State to
produce reports of mental examinations or experiments unless
they are within its "possession, custody, or control." R. 3:13-
3(b)(1)(C); see State v. Robertson, 438 N.J. Super. 47, 68-69
(App. Div. 2014), certif. granted on other grounds, 221 N.J. 287
(2015). There is no evidence the State possessed the various
records defendant sought. "[E]vidence in the control of a crime
victim — notwithstanding the victim's close cooperation with the
12 A-2739-13T2
prosecution — is not within the prosecutor's 'possession,
custody or control.'" Id. at 69 (citation omitted). Likewise,
the State's disclosure obligations under Brady v. Maryland, 373
U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), do not extend
to documents in a private third-party's possession. Robertson,
supra, 438 N.J. Super. at 69.
A court may exercise its inherent power to order discovery
outside the court rule, but the defendant bears the burden of
establishing need. State ex rel. A.B., 219 N.J. 542, 555
(2014). That burden is specifically calibrated to the "nature
and extent of the intrusion" into the discovery target's rights.
Id. at 556-57. In the case of a compelled psychological or
physical examination of a victim, the burden is a heavy one.
Even absent an issue of privilege, the defendant must satisfy a
"heightened standard of substantial need" to justify the
"extraordinary intrusions into an alleged victim's mind and
body" and resulting emotional trauma and distress to the alleged
victim. Id. at 561; State v. D.R.H., 127 N.J. 249, 256-67
(1992); see also State v. Gomez, 430 N.J. Super. 175, 184 (App.
Div. 2013) (stating discovery is only appropriate when the
requestor's right "clearly outweighs the victim's . . . rights
with respect to the specific discovery sought and its purpose");
N.J.S.A. 52:4B-36(c) (crime victims shall be "free from
13 A-2739-13T2
intimidation, harassment or abuse" by the defendant). A
victim's pre-existing mental health records deserve comparable
protection.
Nor is there evidence that defendant served the motions on
Marjie. Although neither party addressed the issue, we
seriously doubt the court may compel the production of a
victim's mental health records without affording her notice and
an opportunity to be heard. Cf. A.B., supra, 219 N.J. at 564,
550 (noting that the parents of juvenile-victim were given
notice of alleged offender's request to inspect their home, and
the court considered an opposing certification from the victim's
mother on reconsideration); D.R.H., supra, 127 N.J. at 254-55,
261 (noting written submissions to the court by father of
alleged child sex-assault victim and the victim herself,
opposing defendant's application for a physical examination of
the child); Crescenzo v. Crane, 350 N.J. Super. 531, 543 (App.
Div.) (noting that Rule 4:14-7(c) governing third-party
discovery is designed to afford interested parties an
opportunity to test the right to disclosure), certif. denied,
174 N.J. 364 (2002).5
5
Had defendant sought the records through a trial subpoena duces
tecum, Marjie would have been on notice of the request and had
an opportunity to file a motion to quash. See State v. Cooper,
(continued)
14 A-2739-13T2
We recognize the prosecutor sought to protect Marjie's
privilege by resisting the motion. Yet, the prosecutor
represents the State, not Marjie. The privilege belongs to her.
She possessed or controlled the records and had the greatest
interest in their confidentiality. Furthermore, an order
compelling discovery would presumably have been directed to her,
not the State. See A.B., supra, 219 N.J. at 564 n.4 (stating
that discovery order — in that case, to inspect victim's home —
may be submitted to the alleged victim as opposed to the
prosecutor's office).
Although a victim may be content to rely on the State's
opposition, she should be afforded the option to advocate
separately for preserving her privilege. As a crime victim, she
was entitled "[t]o appear in any court before which a proceeding
implicating the rights of the victim is being held." N.J.S.A.
52:4B-36(r). This included, in our view, the right to appear to
oppose the motion seeking her records.6
(continued)
2 N.J. 540, 556-57 (1949); In re Application of Attorney
General, 116 N.J. Super. 143, 147 (Ch. Div. 1971).
6
The full text of section (r) entitles a victim:
To appear in any court before which a
proceeding implicating the rights of the
victim is being held, with standing to file
a motion or present argument on a motion
(continued)
15 A-2739-13T2
B.
As a substantive matter, the documents sought were
privileged and/or confidential. Although the record does not
reflect what kind of mental health professional, if any, Marjie
actually consulted, we presume one or more privileges applied.
See N.J.R.E. 505 (psychologist-patient privilege); N.J.R.E. 506
(physician-patient privilege, including psychiatrist-patient
privilege); N.J.R.E. 510 (marriage counselor privilege);
N.J.R.E. 518 (social worker privilege); N.J.S.A. 45:8B-49
(licensed professional counselor privilege); N.J.A.C. 13:34C-4.5
(alcohol and drug counselor privilege).7 Defendant does not rely
(continued)
filed to enforce any right conferred herein
or by Article I, paragraph 22 of the New
Jersey Constitution, and to receive an
adjudicative decision by the court on any
such motion.
[N.J.S.A. 52:4B-36(r).]
Although the provision grants a victim standing to affirmatively
seek enforcement of her victim rights, we do not read the
standing grant so restrictively as to preclude standing to
oppose efforts to undermine those rights.
7
Prior to the adoption of the uniform privilege governing mental
health service providers, N.J.R.E. 534 (effective July 1, 2016),
the standards governing the privileges varied. See, e.g., State
v. McBride, 213 N.J. Super. 255, 270 (App. Div. 1986)
(recognizing that "the psychologist-patient privilege affords
even greater confidentiality than the physician-patient
privilege"), certif. denied, 107 N.J. 118 (1987).
16 A-2739-13T2
on an explicit exception to a privilege, and he has failed to
justify piercing these privileges.
A court is required to "give as much effect as possible to
the legislative judgments embodied in the privileges within
ever-present constitutional limitations." State v. Mauti, 208
N.J. 519, 537 (2012) (internal quotation marks and citation
omitted). The Court recognized that Kozlov created a three-
prong test for piercing a privilege. Id. at 537. Kozlov held
that a privilege may be pierced upon a showing that: (1) the
party has "a legitimate need . . . to reach the evidence sought
to be shielded"; (2) the evidence is relevant and material to an
issue before the court; and (3) the evidence could not be
secured from a less intrusive source. Kozlov, supra, 79 N.J. at
243-44.
But the Supreme Court cautioned in Mauti that Kozlov did
not create a "broad equitable balancing test pursuant to which
any privilege is subject to piercing if the adversary 'needs'
relevant evidence that cannot be obtained from another source."
Mauti, supra, 208 N.J. at 537. Rather, "only in the most narrow
of circumstances, such as where a privilege is in conflict with
a defendant's right to a constitutionally guaranteed fair trial,
would the need prong of its test be satisfied." Id. at 538.
17 A-2739-13T2
Furthermore, the constitutional right to confrontation upon
which defendant relies is not unqualified. See State v.
Gilchrist, 381 N.J. Super. 138, 144 (App. Div. 2005) (stating
the right to confront one's accusers "does not include the power
to require the pretrial disclosure of any and all information
that might be useful in contradicting unfavorable testimony"
(internal quotation marks and citations omitted)). The
confrontation right may be balanced against a compelling State
interest, such as the interest in maintaining the
confidentiality of certain records. In re Z.W., 408 N.J. Super.
535, 539 (App. Div. 2009) (citing Pennsylvania v. Ritchie, 480
U.S. 39, 59-61, 107 S. Ct. 989, 1002-03, 94 L. Ed. 2d 40, 58-60
(1987)); see also In re Maraziti, 233 N.J. Super. 488, 498-500
(App. Div. 1989) (finding that the Due Process Clause did not
compel disclosure of communications protected by the attorney-
client privilege where alternative sources of information
regarding the victim's credibility were available).
A defendant may not "turn the discovery process into a
fishing expedition." Broom-Smith, supra, 406 N.J. Super. at
239.8 Defendant contends records of Marjie's alleged "sensory
8
Defendant's assault of Marjie was an act of domestic violence
as they were in a long-standing dating relationship. See
N.J.S.A. 2C:25-19. A court must also guard against allowing the
(continued)
18 A-2739-13T2
and mental defects[] and her potential drug use" were essential
to challenge her "ability to perceive effects and relate them
accurately." We disagree. There was no preliminary showing —
despite the fact that defendant was involved in a close
relationship with Marjie for almost a year — that she suffered
from a mental or neurological condition that affected her
ability to perceive, recall or relate.
This case is unlike Velazquez v. City of Camden, 447 N.J.
Super. 224, 244-45 (App. Div.), certif. denied, ___ N.J. ___
(2016), where we allowed a civil rights plaintiff to introduce
evidence of the defendant police officer's sleep disturbances,
anxiety, and difficulties concentrating and functioning because
they related to the credibility of his testimony concerning what
he had observed.9 Notably, in Velazquez, the value of the
witness's testimony turned on a fine, detailed observation —
namely the size and placement of a rock thrown by the suspect
whom the defendant shot. Id. at 245. The court found the
witness's neurological state was directly relevant to his
(continued)
discovery process to be used as a means to harass or embarrass a
victim. See N.J.S.A. 52:4B-36(c).
9
We note that the appellate panel in Velazquez analyzed the
relevance of the information to the issue of the officer's
ability to accurately perceive events. It did not address
whether the evidence's probative value justified piercing the
psychologist-patient privilege.
19 A-2739-13T2
credibility. Ibid. The present matter, by contrast, involves
no such minutia; instead, defendant seeks to impeach Marjie's
observation that she was dragged out of Charlie's house by her
hair. No showing has been made that additional evidence of
substance abuse or mental health disorders would impeach her
ability to perceive and recall such an event.10
Although defendant refers to Marjie as the "complaining
witness," we also find no basis to conclude she waived her
privilege. Cf. Mauti, supra, 208 N.J. at 538-39 (stating that
to pierce the privilege a defendant must show that "a
constitutional right is at stake[] or . . . a party has
explicitly or implicitly waived the privilege"). Marjie is a
crime victim. That does not make her a party to this case, nor
would it be accurate to say the State is "claiming through" a
crime victim when it prosecutes a case. Cf. N.J.R.E. 506(d)
(stating there is no physician-patient privilege where patient's
condition "is an element or factor of the claim or defense of
10
Notwithstanding one party-goer's testimony that defendant did
not drag Marjie out by her hair, there was significant evidence,
in addition to Marjie's testimony, that she was removed against
her will. This included evidence that she left the house
without even taking the time to put on shoes or a jacket; she
went with a man who had already struck her once in the head and
threatened to kill her; and the "road rash" on her left leg,
indicating she had been dragged.
20 A-2739-13T2
the patient or of any party claiming through or under the
patient").
We have previously addressed, without deciding, the
question whether, by signing a criminal complaint, a victim
implicitly waived her privilege "at least insofar as [concerned]
the diagnosis of her mental condition" that the defendant
allegedly caused. See State v. McBride, 213 N.J. Super. 255,
270-71 (App. Div. 1986), certif. denied, 107 N.J. 118 (1987).
Yet, there is no evidence Marjie signed a criminal complaint,
nor does she allege a mental condition that defendant caused.
Furthermore, the court in McBride determined that since the
State placed in evidence the victim's own mental and
neurological condition, it would be unfair to deprive the jury
of information that would enable it to appraise the accuracy of
the diagnosis. See Id. at 262, 269-72. The State has made no
similar effort to place Marjie's mental health in issue in this
case.
Defendant also contends it was reversible error for the
court to preclude cross-examination about whether Marjie had
used oxycodone in the past, after she denied using it the night
of the assault. Evidence of habitual drug use is rarely
admissible to establish drug use on a particular day. State v.
Wormley, 305 N.J. Super. 57, 65 (App. Div. 1997), certif.
21 A-2739-13T2
denied, 154 N.J. 607 (1998). We found harmful error when the
court barred inquiry into a victim's drug usage in Wormley. Id.
at 64-68. However, in that case, there were serious gaps and
inconsistencies in the victim's reported observations of the
crime. Id. at 67-68. Defendant has failed to establish a
similar predicate for exploring Marjie's past drug use in this
case.
In sum, the court did not err in barring discovery of
Marjie's mental health and medical records, and restricting
cross-examination of past drug use.
III.
Defendant raises several instances of prosecutorial
misconduct that he claims, either individually or as a whole,
deprived him of a fair trial. Only one claim of error warrants
discussion. It pertains to the State's cross-examination of the
party-goer who testified that defendant did not drag Marjie out
of the house by her hair. The questioning implied that the
witness had changed his testimony at the request of another
person:
Q. Now, since that point, since that
incident, you've been – I guess you've
received letters or you heard about people –
witnesses in the case receiving letters,
correct?
A. No.
22 A-2739-13T2
Q. You didn't hear about any letters
being sent out asking people to change their
version of the story?
[DEFENSE ATTORNEY]: Objection.
The judge then excused the jury and asked the prosecutor for an
offer of proof.
[ASSISTANT PROSECUTOR]: Judge, we were
told through another witness . . . as well
as this witness [last month] . . . that
there was, in fact, a letter sent to him
asking him to change his story.
THE COURT: From who?
[ASSISTANT PROSECUTOR]: This . . .
witness couldn't say for certain. He said
it was sent to him from — what I believe
from MCCI.
THE WITNESS: No.
THE COURT: Do you have the letter?
[ASSISTANT PROSECUTOR]: We don't have
a copy of the letter. It was never sent to
us.
THE COURT: So you ask a question that
you don't have an offer of proof to
substantiate?
[ASSISTANT PROSECUTOR]: Judge, it's a
good faith basis for us that we have through
defense counsel's own witness telling us
this.
THE WITNESS: I never said that.
The court found that the prosecutor lacked a sufficient
basis to make this inquiry and sustained the objection. When
23 A-2739-13T2
the jury reentered, the judge instructed, "Folks, I have
sustained the last objection. So the last question that was
posed to the witness will be disregarded by you."
Prosecutorial misconduct may be grounds for reversal where
the misconduct "was so egregious that it deprived the defendant
of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999).
"[T]o warrant a new trial the prosecutor's conduct must have
been clearly and unmistakably improper, and must have
substantially prejudiced [a] defendant's fundamental right to
have a jury fairly evaluate the merits of his defense." State
v. Smith, 167 N.J. 158, 181-82 (2001) (internal quotation marks
and citation omitted). In making this assessment, a reviewing
court "must consider (1) whether defense counsel made timely and
proper objections to the improper remarks; (2) whether the
remarks were withdrawn promptly; and (3) whether the court
ordered the remarks stricken from the record and instructed the
jury to disregard them." Frost, supra, 158 N.J. at 83.
As a threshold matter, we are not convinced the
prosecutor's question was improper. "[A] question in cross-
examination is improper where 'no facts concerning the event on
which the question was based were in evidence and the
[questioner] made no proffer indicating his ability to prove the
occurrence.'" Manata v. Pereira, 436 N.J. Super. 330, 348 (App.
24 A-2739-13T2
Div. 2014) (quoting State v. Rose, 112 N.J. 454, 500 (1988)).
In order to have a good faith basis to inquire about the alleged
letter, the State was not necessarily required to produce the
letter itself, provided the State presented other proof of its
existence.
However, even assuming the question was improper, it did
not constitute egregious misconduct warranting a new trial. See
Frost, supra, 158 N.J. at 83. The question was vague. It did
not identify the purported sender of the letter, nor its
substance. Furthermore, after defense counsel objected, the
judge swiftly and emphatically instructed the jury to disregard
the question. We presume the jury followed those instructions.
State v. Loftin, 146 N.J. 295, 390 (1996).
Defendant's remaining claims of prosecutorial misconduct
pertain to remarks in the prosecutor's opening and closing
statements. We note that defense counsel did not object to
these remarks. "Generally, if no objection was made to the
improper remarks," they "will not be deemed prejudicial."
Frost, supra, 158 N.J. at 83. Having reviewed the statements
carefully, we are unconvinced that there was error, let alone
plain error, warranting a new trial. Any further discussion is
not warranted. R. 2:11-3(e)(2).
25 A-2739-13T2
IV.
Defendant submits, as plain error, that a "specific
unanimity charge" was required for the second-degree charge of
serious bodily injury aggravated assault of Marjie. Defendant
contends the jury may have reached a fragmented verdict because
the State presented evidence of two distinct assaults: the head-
butting and the attack in the park. Furthermore, the jury could
have been divided as to whether defendant was in a
disassociative state during one assault. We are unconvinced.
"[I]n cases where there is a danger of a fragmented verdict
the trial court must upon request offer a specific unanimity
instruction." State v. Frisby, 174 N.J. 583, 597-98 (2002)
(internal quotation marks and citation omitted). When the
request is not made, as in this case, we must determine whether
the absence of a specific unanimity charge "was clearly capable
of producing an unjust result." Id. at 598 (citing R. 2:10-2).
The Court found such plain error in Frisby, because the State
offered "[d]ifferent theories . . . based on different acts and
entirely different evidence" in support of the same charge. Id.
at 599-600.
Nothing of the kind occurred in this case. The State
presented evidence of a continuum of violence during the
evening. Defendant did not dispute that the physical attacks
26 A-2739-13T2
occurred. Furthermore, defendant inflicted the most serious
harm in the park, when he tore away Marjie's lip, inflicted
multiple blows to her head, and twice rendered her unconscious.
We perceive no realistic possibility that a minority of jurors
was willing to ground a second-degree assault conviction solely
on the head-butting incident. Rather, in order to find
defendant guilty of serious bodily injury aggravated assault,
the jurors must have been unanimous that defendant also
committed the attack in the park, and that he did so
purposefully or knowingly and not while in a disassociative
state that deprived him of the ability to know the "nature and
quality" of what he was doing or to "know that what he was doing
was wrong." N.J.S.A. 2C:4-1.
Finally, we discern no merit in defendant's challenge to
his sentence. The court's findings of fact regarding
aggravating and mitigating factors were supported by evidence in
the record; the court correctly applied the sentencing
guidelines; and the court did not abuse its discretion in
imposing its sentence. State v. Cassady, 198 N.J. 165, 180-81
(2009); State v. Roth, 95 N.J. 334, 364-66 (1984). The court
addressed the factors under State v. Yarbough, 100 N.J. 627,
643-45 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89
L. Ed. 2d 308 (1986), in deciding to impose concurrent
27 A-2739-13T2
sentences, despite the fact that defendant assaulted two victims
and committed crimes in two separate places. We are also
satisfied the court fairly considered, and rejected, defendant's
argument that mitigating factor four should be considered. We
shall not disturb that finding.
Affirmed.
28 A-2739-13T2