Opinion
DOCKET NO. A-0867-12T1
06-10-2013
STATE OF NEW JERSEY, Plaintiff-Appellant, v. MATTHIAS M. KABETE, Defendant-Respondent.
Marlene Lynch Ford, Ocean County Prosecutor, attorney for appellant (Samuel Marzarella, Supervising Assistant prosecutor, of counsel and on the brief; William Kyle Meighan, on the brief). Joseph E. Krakora, Public Defender, attorney for respondent (Dawn Marie Nee, Deputy Public Defender, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves and Ashrafi.
On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 11-04-763.
Marlene Lynch Ford, Ocean County Prosecutor, attorney for appellant (Samuel Marzarella, Supervising Assistant prosecutor, of counsel and on the brief; William Kyle Meighan, on the brief).
Joseph E. Krakora, Public Defender, attorney for respondent (Dawn Marie Nee, Deputy Public Defender, on the brief). PER CURIAM
Defendant Matthias M. Kabete faces trial on second- and third-degree sexual contact and sexual assault charges, allegedly committed shortly before he graduated from high school. The incident occurred when a group of teenagers rented rooms at a Jersey shore motel after their high school prom and some of them got drunk.
The Supreme Court ordered that we hear and decide the State's interlocutory appeal from orders of the trial court reserving final decision on whether defense expert testimony would be admissible at the trial to show that defendant Kabete's intoxication negated purposeful or knowing conduct. The State also objects to the trial court permitting the defense expert to supplement his report.
We are hindered in our recital of details about the case because neither party thought it appropriate to provide the expert's report or witness statements as part of the record on appeal. Rather, both parties rely on the testimony of the expert at a lengthy pretrial hearing to determine whether his opinions are admissible evidence. We have reviewed that testimony and conclude that the trial court did not abuse its discretion in requiring additional scientific or specialized evidence to support the expert's opinion, or, on the other hand, in allowing the defense additional time to produce that evidence in a supplemental report. We affirm the trial court's orders.
I.
In April 2011, defendant was indicted on three charges: third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3; second-degree attempted sexual assault, N.J.S.A. 2C:5-1 and 2C:14-2; and second-degree attempted aggravated sexual assault, N.J.S.A. 2C:5-1 and 2C:14-2.
The alleged crimes occurred at a Seaside Heights motel in the early morning hours of June 5, 2010. After their high school prom, defendant and some schoolmates, both male and female, rented motel rooms and arranged for alcoholic beverages to be available. The female victim of the alleged sexual offenses, who was about the same age as defendant, began drinking soon after arriving at the motel near 2:30 a.m. At some point before daylight, she passed out. Two friends, a boy and a girl, helped her to one of the beds in a room, and she slept. Defendant was staying in the same room, and he was drinking, too. The two friends tried to get defendant to lie on the other bed, but defendant kept getting up. The supervising friends eventually fell asleep.
When the female friend awoke, she saw defendant on top of the victim. His pants were around his ankles, and the victim was naked below the waist. Defendant was making thrusting motions, which the friend took to be sexual intercourse. The male friend woke up and pushed defendant off the victim. He brought defendant into the bathroom and noticed that defendant had an erection. The victim did not wake up, and she never had any memory of the alleged assault.
Schoolmates staying in other rooms in the motel learned of the incident, and one of them punched defendant and gave him a black eye. Defendant was driven home by the male friend who had been in the room. Defendant was repeatedly apologizing and asking the friend what happened. Annoyed, the friend urged him to sleep in the backseat, and defendant slept during most of the two-hour ride to his home. At his home, the friend had to pull defendant out of the car, and he had trouble standing and walking.
Defendant is a Nigerian national, and his mother is a Methodist pastor. According to the mother, the family's code of morality prohibits alcohol and drug use and discourages premarital sex. At his home that morning, defendant's mother and brother smelled alcohol on him, saw his black eye, and had to help him physically to walk to his room. Defendant was very apologetic. He was crying and said he did not remember what had happened at the motel.
Later on the date of the incident, one of defendant's friends phoned him after hearing rumors. According to this witness, defendant told him that he saw the victim lying on the bed, and that he kissed her, but that he could not remember if she kissed him back. The friend told defendant incorrectly that medical testing of the victim had confirmed sexual intercourse, and defendant responded, vaguely, with an expletive remark.
The prosecution makes much of defendant's one-word response as evidence of his guilty knowledge, but that interpretation is certainly debatable.
Back in the Seaside Heights motel, when the victim finally awoke, a female friend told her she had been raped. Although the victim sought medical attention immediately, her inability to provide her parents' insurance information delayed evaluation and treatment. She did undergo a sexual assault forensic examination after her parents learned of the assault, but the tests were inconclusive on the issue of whether she had been penetrated. Two days after the incident, the police charged defendant with sexual crimes.
After his indictment some months later, defendant provided to the prosecution a report prepared in January 2012 by Kenneth Weiss, M.D., who was proffered as an expert in psychiatry supporting a defense of intoxication pursuant to N.J.S.A. 2C:2-8. Defense counsel had asked Dr. Weiss to render an opinion on whether defendant's level of intoxication met the standard for a voluntary intoxication defense under the statute. Although the State stipulated that Dr. Weiss is an expert in forensic psychiatry, it moved in limine to bar his testimony, as well as testimony from defendant's mother and brother regarding their observations when defendant arrived home and his statements to them that he did not remember what had occurred.
On the morning of June 5, 2012, with a panel of jurors waiting for jury selection to begin for defendant's trial, the court conducted a lengthy pre-trial hearing pursuant to N.J.R.E. 104(a) and Rule 3:9-1(d) to consider the admissibility of Dr. Weiss's expert opinion testimony. Dr. Weiss was the only witness at the hearing. His direct examination by defense counsel was succinct and to the point. The prosecutor's cross-examination, however, was largely beyond the scope of appropriate cross-examination for the pretrial admissibility issue, and it extended into the afternoon hours.
Dr. Weiss testified that he conducted in-person interviews with defendant and his mother, and he reviewed police reports, witness statements, and notes from telephone interviews of defendant's family members conducted by defense investigators. After reviewing that evidence, Dr. Weiss concluded that "at the time . . . of the alleged sexual assault or sexual contact, [defendant] was intoxicated from alcohol and that he was so intoxicated that his mental faculties were prostrated to the degree that he was incapable of forming the specific intent required for the offense charged."
Dr. Weiss based this conclusion on several factors, including defendant's inexperience with alcohol, his family's moral code regarding alcohol and premarital sex, defendant's appearance and behavior that night and early morning, and defendant's claims that he did not remember parts of what had occurred in the motel room. Defendant told Dr. Weiss he had drunk alcohol on only one previous occasion, at a pre-graduation party, and he had become drunk then and suffered a hangover the next day. He did not like the experience and had determined not to repeat it. But two weeks later, after the prom, he consumed more alcohol than on the previous occasion and was drunk again. Defendant also told Dr. Weiss that drinking alcohol and premarital sex violated the strict moral code of his family and made him ashamed. He reported he had no recollection of events surrounding the alleged sexual assault.
Dr. Weiss conceded he could not pinpoint how much alcohol defendant had consumed, except to say that defendant reported he had drunk "five or six half-cups" of vodka during his only prior drinking experience, and that the amount following the prom was more than that. In addition, there was evidence that defendant also drank beer on the night of the incident. Dr. Weiss acknowledged that no blood alcohol concentration (BAC) test was available to support a determination of defendant's intoxication level, such as in drunk driving prosecutions. In addition to defendant's statements, however, Dr. Weiss relied heavily on the observations of defendant's family members after he arrived home to gauge the degree of his intoxication.
The doctor explained how defendant's apparent ability to coordinate his physical movements well enough to be on top of the girl and appearing to be having intercourse factored into his analysis and conclusion that defendant lacked the requisite state of mind for the offenses charged. He indicated that although lack of physical coordination would be "evidence" of intoxication, the mental processes used to form intent and purpose might "shut off" sooner, and therefore, one could be intoxicated enough to lack the intent to commit a crime while still having the physical coordination to commit it. Dr. Weiss testified that the "motor abilities . . . are generally speaking the last to go completely before consciousness is lost entirely."
After the State's lengthy cross-examination and the arguments of counsel, the trial court issued an order and written opinion on June 7, 2012, by which the court "reserve[d] its decision on the State's Motion in Limine to Bar Expert Testimony and Restrict Other Testimony at Trial." The court's written opinion stated that Dr. Weiss would not be permitted to provide expert testimony on the intoxication defense as matters stood then, but that the defense would be provided an opportunity to supplement its expert report. The court stated:
[T]his court finds that Dr. Weiss' report and testimony lacks any "scientific, technical, or other specialized knowledge [that] will assist the trier of fact to understand the evidence or to determine a fact in issue" in this case. N.J.R.E. 702. However, the court will allow the defense a reasonable opportunity to rehabilitate Dr. Weiss' report. The court is unaware of any legal authority that would not allow Dr. Weiss to revise his opinion, if possible, to make it competent under N.J.R.E. 702. If Dr. Weiss can establish that he relied on sufficient scientific basis to support his conclusion, the court will be in a better position to determine the admissibility of the doctor's testimony regarding the effects of defendant's intoxication. The court is requesting that the supplementation to Dr. Weiss' report be submitted to the court and the prosecutor no later than June 15, 2012.
Before the June 15 deadline, the State filed a motion for reconsideration of the ruling, asking that the court reach a final ruling and bar Dr. Weiss's proposed testimony. In response, the defense asked the court to reconsider its ruling and allow the testimony of Dr. Weiss at trial without the need for a supplemental report. The court denied both sides' requests on June 14, 2012. In a written opinion, the court stated it had not reserved decision on Dr. Weiss's qualification to testify on the intoxication defense. Instead, the thrust of the June 7 ruling was that the court could not determine the relevance of Dr. Weiss's testimony until it had determined whether to allow the intoxication defense to go to the jury at all. Once the court determined whether there was a "rational basis" to charge the jury on intoxication, it would decide whether expert intoxication evidence was admissible. At the same time, the court stuck to its earlier conclusion that Dr. Weiss's report and testimony were insufficient as presented to satisfy the requirements for admissibility but that the defense would be permitted to supplement its proffer with scientific backing for the doctor's conclusions.
By the time of the court's June 14 ruling, the jury panel had been dismissed, apparently by agreement of the parties. Both parties were dissatisfied with the trial court's decisions and moved to stay the proceedings so that each could file an interlocutory appeal. The defense also requested an extension of the deadline for Dr. Weiss to supplement his report. On June 15, 2012, the trial court stayed the trial to permit filing of an interlocutory appeal, but it declined to enlarge the deadline for supplementation of Dr. Weiss's report at that time.
We report some of the procedural history in uncertain language because the parties have not provided a documentary or other detailed record of it for purposes of this appeal. Missing from our appellate record is information such as the timing of the State's motion in limine to bar Dr. Weiss's testimony, the status of prior discovery to the extent relevant to the court's granting the defense an opportunity to supplement the expert report, and whether the State sought an opportunity in the alternative to obtain its own expert analysis and report.
The State filed a motion before this court for leave to appeal, which we denied. The Supreme Court summarily reversed our denial and directed us to consider the merits of the State's appeal.
II.
We will address both the procedural aspects of the trial court's decision, reserving final decision as to whether Dr. Weiss would be permitted to testify, and the merits of the dispute about the admissibility of the doctor's proffered testimony on voluntary intoxication as a defense.
A.
We begin by reviewing the availability of an intoxication defense under N.J.S.A. 2C:2-8. In relevant part, the statute provides:
a. . . . [I]ntoxication of the actor is not a defense unless it negatives an element of the offense.Thus, voluntary intoxication is a defense to a purposeful or knowing crime, but not to a crime requiring a mens rea of recklessness. State v. Mauricio, 117 N.J. 402, 418 (1990). Here, the aggravated sexual contact and attempted sexual assault offenses of the indictment required proof of knowing or purposeful conduct. Therefore, voluntary intoxication could be presented to negate an element of the crimes charged.
b. When recklessness establishes an element of the offense, if the actor, due to self-induced intoxication, is unaware of a risk of which he would have been aware had he been sober, such unawareness is immaterial.
When sufficient evidence of intoxication is presented at trial to make the defense available, the jury should be instructed that "once there is some evidence of defendant's intoxication, the State must prove beyond a reasonable doubt that such intoxication did not render defendant incapable of acting" with the required mental state. Model Jury Charge (Criminal), "Intoxication Negating an Element of the Offense" (2005). To be entitled to such an instruction, defendant must show that the effect of the alcohol induced "such a great prostration of the faculties that the requisite mental state [is] totally lacking." State v. Cameron, 104 N.J. 42, 54 (1986) (quoting State v. Stasio, 78 N.J. 467, 495 (1979) (Pashman, J., concurring)).
In Cameron, the Court set out several factors as relevant in deciding whether to charge the jury regarding an intoxication defense: "the quantity of intoxicant consumed, the period of time involved, the actor's conduct as perceived by others (what he said, how he said it, how he appeared, how he acted, how his coordination or lack thereof manifested itself), any odor of alcohol or other intoxicating substance, the results of any tests to determine blood-alcohol content, and the actor's ability to recall significant events." Id. at 56.
In this case, defendant presented evidence to establish the relevant factors: more than five or six half-cups of vodka, plus beer, consumed in a matter of a few hours; defendant's conduct and demeanor as perceived by others; an odor of alcohol smelled by defendant's family members; and defendant's claim that he did not remember significant events. Based on that evidence, which a jury could believe or not believe, and which the jury could weigh in the balance of all the evidence, defendant established the requisite basis for presenting an intoxication defense at the trial. See id. at 57 ("Ordinarily . . . the question of whether a defendant's asserted intoxication satisfies the standards [for an intoxication defense] should be resolved by the jury.").
Provided the evidence at trial essentially conforms to the pretrial proffer, we hold that defendant is entitled to present an intoxication defense under N.J.S.A. 2C:2-8 and to argue to the jury that the State did not prove he acted with a knowing or purposeful state of mind.
B.
The parties reach opposite conclusions on the admissibility of Dr. Weiss's testimony to support that defense. Both parties agree, however, that the trial court should have issued a definitive and final ruling on the admissibility of expert testimony following the Rule 104 hearing. They contend that the failure to make such a ruling inhibited their formulation of trial strategy and raised the possibility of a mistrial.
While we agree with the defense that the factual basis for conditional admission of an intoxication defense and Dr. Weiss's testimony was established at the pretrial hearing, we find no abuse of discretion in the court's determination to require additional scientific or similar support for the doctor's ultimate conclusion that defendant did not have the requisite state of mind to be convicted of the offenses. Nor do we find any abuse of discretion in the court's granting additional time to defendant to produce the scientific or other supporting basis for that and related conclusions of the doctor.
We suspect that the court may have been diverted from rendering a more definitive and precise ruling because the Rule 104 hearing soared far beyond its proper scope to determine the admissibility of Dr. Weiss's opinion testimony. Defense counsel and the court permitted the prosecutor to cross-examine Dr. Weiss at length on issues that may have properly been brought before the jury as matters of credibility and reliability of the doctor's opinions and conclusions but had no direct relevance to the admissibility of the expert's testimony.
Instead of focusing on evidentiary rules and standards to determine whether the expert testimony was admissible, the prosecutor's cross-examination was an attempt to discredit the factual information upon which Dr. Weiss relied in reaching his conclusions. However, unless completely unsubstantiated or irrational, the accuracy of the facts upon which an expert bases an opinion is a matter for the jury to determine based on the evidence presented at trial. It is not the function of the trial judge to weigh evidence that contradicts the information provided to the doctor and, on that basis, to conclude that his opinions are not credible.
After more than an hour of cross-examination, defense counsel finally objected and argued that the scope of the cross-examination was improper for the reasons we state here. The trial court mistakenly overruled the objection, and the cross-examination continued as before.
In the cross-examination and in argument to the court, the prosecutor repeatedly referred to defendant's "self-serving" statements about the amount of alcohol he drank that night and his "self-serving" claim that he did not remember significant events. Initially, we note that there is no rule of evidence that bars "self-serving" testimony or evidence. Indeed, much admissible evidence is self-serving, such as a defendant's denials of wrongdoing, perhaps a victim's version of events, and the testimony of witnesses that may serve their own personal interests. Misdirected arguments can only divert the court from proper application of the rules of evidence.
The prosecutor also challenged Dr. Weiss's testimony and later argued to the court that the observations of defendant's family members were unreliable and contradicted by the observations of teenagers at the motel. The prosecutor argued that the expert had no precise evidence of the amount that defendant drank, no BAC results, and no medical or scientific evidence to support his conclusion that defendant was intoxicated. The expert responded that the fact of intoxication seemed unrefutable to him; the issue was whether it reached the legally significant level of prostration of defendant's faculties.
Whether intoxication is available as a defense does not require medical or scientific testing, or precision in measuring the amount of alcohol the defendant consumed. Lay witnesses may express their opinions on the sobriety of an individual who has been drinking alcohol. State v. Bealor, 187 N.J. 574, 587 (2006); State v. Smith, 58 N.J. 202, 213 (1971); State v. Guerrido, 60 N.J. Super. 505, 510 (App. Div. 1960). In fact, the cases in which the Court has discussed the availability of the defense have routinely involved either the imprecise self-reporting of the defendant, or observational evidence of lay witnesses. See, e.g., State v. Bey, 112 N.J. 123, 143-45 (1988) (affirming intoxication instruction where defendant testified he consumed 120 ounces of malt liquor and smoked marijuana); Cameron, supra, 104 N.J. at 47, 56-58 (denying instruction based only on evidence of the defendant's bizarre conduct as observed by several witnesses and the defendant's conclusory claim that she was drunk); State v. Frankland, 51 N.J. 221, 223-24 (1968) (affirming intoxication instruction where defendant testified he had fifteen drinks of scotch and water and could not remember the events of the evening).
As we previously stated, Cameron specifically listed "the actor's conduct as perceived by others (what he said, how he said it, how he appeared, how he acted, how his coordination or lack thereof manifested itself), any odor of alcohol or other intoxicating substance . . . and the actor's ability to recall significant events" as factors relevant to determining whether an intoxication defense may be submitted to the jury. Cameron, supra, 104 N.J. at 56. Although a BAC measurement is also included in the list of relevant factors, it is not required to support an intoxication defense. See id. at 55 (collecting cases granting or denying jury instruction on intoxication defense, none of which included evidence of the defendant's BAC). In those cases where the defense was not available, the reason for barring it was not the source of evidence of the defendant's intoxication but its insufficiency to put in issue the prostration of defendant's faculties. Id. at 55-56.
Here, defendant could take the stand at his trial and describe the number of drinks he had in the early morning hours of June 5, 2011. His testimony could be corroborated by other witnesses at the scene, and by the observations of his family members a few hours later. In that regard, defendant's claim that he did not remember what had happened, his remarks and statements at the time of the intoxication, and the perception of his mother and brother about his condition are factors that the court, and the jury, may consider in determining the viability of the defense. The prosecutor was simply wrong as a matter of law in arguing that the court should disregard defendant's evidence on a question of admissibility because the prosecution's evidence contradicted it.
If defendant's out-of-court statements declaring how much he drank and his lack of memory about what happened are admitted at the trial pursuant to Cameron and N.J.R.E. 703 (expert may rely relied upon by experts in the particular field"), the court should consider whether any hearsay exception applies and, if not, should give a limiting instruction to the jury that defendant's out-of-court statements are not admitted to prove their truth.
At trial, the prosecution can present fact evidence to contradict the defense evidence and the information upon which the expert relied. Whether or not Dr. Weiss is permitted to testify about his conclusions, the trial court's function is not to weigh the credibility of fact witnesses presented by each side about the amount of alcohol and the observed condition of defendant. That function belongs to the jury. The trial court's function is to determine whether, if believed by the jury, evidence on which the defense relies provides a rational basis for concluding that defendant's faculties were prostrated by his intoxication and, therefore, he lacked the requisite knowledge or purpose to commit the crimes. Mauricio, supra, 117 N.J. at 418-19. Here, we have concluded that the defense evidence met that threshold.
C.
The next question is whether expert testimony as proposed by the defense is admissible under the rules of evidence to support the intoxication defense.
The admissibility of expert testimony is governed by N.J.R.E. 702:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form or an opinion or otherwise.The rule incorporates three general requirements: "(1) the intended testimony must concern a subject matter that is beyond the ken of the average juror; (2) the field testified to must be at a state of the art such that an expert's testimony could be sufficiently reliable; and (3) the witness must have sufficient expertise to offer the intended testimony." State v. Rosales, 202 N.J. 549, 562 (2010) (quoting State v. Jenewicz, 193 N.J. 440, 454 (2008)); accord State v. Townsend, 186 N.J. 473, 491 (2006). These requirements are read in favor of admission of expert testimony. Rosales, supra, 202 N.J. at 562. On appeal, we review the trial court's decision to admit or exclude expert testimony primarily for abuse of discretion. Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371 (2011); Kuehn v. Pub Zone, 364 N.J. Super. 301, 318 (App. Div. 2003), certif. denied, 178 N.J. 454 (2004).
The qualifications of an expert and the admissibility of opinion or similar expert testimony are matters left to the discretion of the trial court. State v. Torres, 183 N.J. 554, 572 (2005); State v. Summers, 176 N.J. 306, 312 (2003). But appellate deference is not required on the question of whether a particular field or scientific discipline is sufficiently reliable and generally accepted in the relevant professional or scientific community. State v. Harvey, 151 N.J. 117, 167 (1997), cert. denied, 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed. 2d 683 (2000). An appellate court may independently review scientific literature, judicial decisions, and other authorities to determine whether proposed expert testimony is scientifically reliable and has obtained general acceptance so that it may be admitted in our courts. Torres, supra, 183 N.J. at 567.
At the Rule 104 hearing, the State stipulated to Dr. Weiss's qualifications as a forensic psychiatrist. Given that our courts take a "liberal approach when assessing a person's qualifications," Jenewicz, supra, 193 N.J. at 454, Dr. Weiss is clearly qualified to opine on matters within his field, including alcohol intoxication. Thus, the third prong in the N.J.R.E. 702 analysis — expertise — is not at issue in this appeal.
Satisfaction of the first and second prongs is the issue. In reserving decision, the trial court stated:
In the present case, Dr. Weiss' medical report and testimony relates to the effects of alcohol on defendant's brain and faculties. As the defense points out, Dr. Weiss would testify as to "the functionsThus, the court indicated its concern that Dr. Weiss's testimony lacked "sufficient scientific basis" for it to be reliable enough to present to a jury. Further, if Dr. Weiss did nothing more than apply the facts to an understandable legal standard, then it is unlikely his testimony would be helpful to the jury.
controlled by the brain, how physical actions are 'lower' in the brain, and how 'higher' functions such as 'purpose' are the first things to be suppressed with acute alcohol intoxication." This court believes that if Dr. Weiss' report referred to treatises or other authority for the basis of his conclusions, such information would strengthen defense counsel's argument that Dr. Weiss' area of expertise should be considered a "specialized knowledge." N.J.R.E. 702.
Defendant argues that the court erred in demanding a "scientific basis" for Dr. Weiss's conclusions, insomuch as N.J.R.E. 702 permits reliance not only on science, but also on "other specialized knowledge." Dr. Weiss's testimony, defendant contends, can be analogized to that of an expert on "drug-trade practices," in that the latter may not have "science" to back up his or her assertions, but has specialized knowledge honed over years of experience. See State v. Odom, 116 N.J. 65, 73 (1989) (admissibility of expert testimony on drug dealing practices). As to the ability of Dr. Weiss's testimony to assist the jury, defendant points out that lay jurors may not understand how one can engage in physical acts (like walking or engaging in sexual conduct) without the acts being purposeful.
The defense proffered Dr. Weiss to enhance the factual evidence regarding the level of defendant's intoxication and to explain the effects that level of intoxication had on his mental state. In addition to the Cameron factors we previously listed, the doctor considered defendant's age and lack of experience with alcohol as supporting his conclusions.
At the outset, at least some of Dr. Weiss's testimony reached subjects beyond the ken of the average juror. When asked about defendant's inability to recall key events surrounding the alleged assault, Dr. Weiss testified about "blackouts" and "fragmentary memory," stating that "people who are very intoxicated have a hard time maintaining a steady narrative stream of their memory and we see everything from seconds or momentary lapses to entire periods of blackout." The defense could offer these parts of Dr. Weiss's testimony at trial to rebut the intuitive conclusion that defendant's memory of certain parts of the incident and not others is an indication that he was capable of acting knowingly or purposefully.
The prosecution also questioned whether defendant would have been able to perform all the physical acts constituting the charged crimes had he truly been incapable of forming criminal intent. Dr. Weiss's response, which came most clearly in his direct testimony, was that "motor abilities" do not deteriorate under the influence of alcohol as quickly as do "mental faculties," thus allowing an individual too drunk to form intent to engage in physical action. On these issues, Dr. Weiss's testimony would likely be capable of assisting the trier of fact. See People v. Jones, 620 N.Y.S.2d 656, 657 (N.Y. App. Div. 1994) ("combined effects of organic brain damage as a result of traumatic head injury and 30 years of alcoholism on a person's ability to think and act purposefully are matters outside the ken of the typical juror"), aff'd, 654 N.E.2d 1209 (N.Y. 1995).
Our inquiry, then, advances to the trial court's primary concern: that Dr. Weiss's testimony was insufficiently reliable to warrant admission, the second prong of the test for admissibility. The court was "unaware of any scientific reference, study, or mechanism on which Dr. Weiss base[d] his conclusion that defendant was so intoxicated that his faculties were fully prostrated." Without that foundational evidence, Dr. Weiss would not be able to "point to generally accepted, objective standards of practice and not merely standards personal to [him]." An expert may not simply express his personal opinion about a contested matter. Landrigan v. Celotex Corp., 127 N.J. 404, 414 (1992); Riley v. Keenan, 406 N.J. Super. 281, 295-96 (App. Div.), certif. denied, 200 N.J. 207 (2009).
Evidence provided by an expert can satisfy the second prong for admission if it "derives from a reliable methodology supported by some expert consensus." Suanez v. Egeland, 353 N.J. Super. 191, 195 (App. Div. 2002). In the absence of a methodology that is objective, that is, separate from the expert's own opinion, the testimony is both unhelpful to the jury and constitutes an impermissible net opinion. Pomerantz Paper Corp., supra, 207 N.J. at 372.
The proponent of expert testimony may establish its reliability in three ways: by testimony that experts in the field accept the foundational bases of the opinion as reliable, by demonstrating a consensus in the literature with respect to the reliability of the method, or by pointing to judicial decisions recognizing the evidence as generally accepted in the scientific community. Hisenaj v. Kuehner, 194 N.J. 6, 17 (2008); Torres, supra, 183 N.J. at 568. The key function of the court in this context is to "distinguish scientifically sound reasoning from that of the self-validating expert, who uses scientific terminology to present unsubstantiated personal beliefs." Landrigan, supra, 127 N.J. at 414.
In applying these concepts, our task is made more difficult by the lack of briefing on the narrow issue we have focused upon — support in the relevant field for Dr. Weiss's opinions — and by the omission of his report from our record, which we must assume did not contain such support. Dr. Weiss's testimony at the hearing did not refer to any methodological consensus within the psychiatric community to which his analysis could be traced, and it cited no treatise or other literature on the topic. Further, defendant did not point to any judicial opinions recognizing the propriety of the type of testimony Dr. Weiss gave. While defendant is correct that Dr. Weiss's credentials make him an expert in psychiatry, those qualifications do not relieve him of the obligation to "explain [his] methodology[] and demonstrate that . . . the methodology [is] scientifically reliable." Riley, supra, 406 N.J. Super. at 295; see also Pomerantz Paper Corp, supra, 207 N.J. at 374 (finding expert testimony inadmissible because although "the witness opined at some length about his experiences and his impressions," there was no objective basis, such as "handbooks, manuals, treatises, articles or trade publications" to support the opinion).
State v. Vandeweaghe, 351 N.J. Super. 467, 476-80 (App. Div. 2002), aff'd, 177 N.J. 229 (2003), which neither party cites, did include extensive expert testimony on the issue of the intoxication defense, but the case did not involve the issue of admissibility and therefore did not delve into the scientific bases of the respective experts' opinions.
The trial court analogized this case to Rosales, supra, 202 N.J. at 557, in which a defense expert was proffered to testify about the reliability and voluntariness of the defendant's confession. The Supreme Court affirmed the exclusion of the expert testimony, noting that "except for general articles on false confessions, [the expert] did not cite any specific studies on false confessions or specify the scientific mechanisms behind false confessions." Id. at 563-64. The Court contrasted the facts in Rosales with those in State v. King, 387 N.J. Super. 522 (App. Div. 2006), in which false confession testimony of a forensic psychiatrist was admitted. There, the doctor performed "clinical evaluations" of the defendant, diagnosed him with personality disorders, and testified that "defendant's . . . psychiatric disorders are consistent with his claim of false confession." Id. at 531, 536. As to reliability, the expert was able to connect his diagnoses to the relevant portion of the Diagnostic and Statistical Manual of Mental Disorders. Id. at 532. We held that the testimony was reliable and admissible because, in contrast to situations in which such testimony had been excluded, the expert was able to "diagnose a scientifically recognized mental disorder" while relying on "an authoritative treatise." Id. at 543.
Similarly in this case, although expert testimony regarding the intoxication defense might be reliable and helpful to the jury, Dr. Weiss did not provide any literature or other evidence of acceptance in the field of psychiatry as support for his conclusions that a defendant's "mental faculties" might deteriorate as a result of drinking alcohol when his "motor abilities" have not. He also did not offer such support for his conclusions that the observational evidence and defendant's claims of his mental status were such as to support a rational determination that he "was so intoxicated that his mental faculties were prostrated to the degree that he was incapable of forming the specific intent required for the offenses charged."
Without evidence to demonstrate that the doctor's opinions are based on an accepted methodology within the psychiatric community, the trial court did not abuse its discretion in concluding that the ultimate and most significant conclusions reached by Dr. Weiss were inadmissible as presented.
Our holding does not preclude the defense from offering parts of Dr. Weiss's testimony that satisfy the requisite foundational requirement for scientific or other support in the field of psychiatry, even if his ultimate conclusions are not admitted.
--------
D.
The court also did not abuse its discretion in permitting the defense additional time to supplement the doctor's report to provide the necessary foundational evidence for admissibility of his conclusions.
For purposes of the attorney's planning and trial strategy, it would have been preferable if the court could have provided a final ruling on admissibility of Dr. Weiss's testimony. See Torres, supra, 183 N.J. at 567 ("After cross-examination by the opposing party, the court should render a decision on the admissibility of the proffered testimony."); Cohen v. Cmty. Med. Ctr., 386 N.J. Super. 387, 401 (App. Div. 2006) (trial judge should have "expressly stated that [witness] was being permitted to testify as an expert"); State v. Elkwisni, 384 N.J. Super. 351, 360 n.3 (App. Div. 2006), aff'd, 190 N.J. 169 (2007) (discussing the prejudice that could arise from failure to decide prior to trial a motion to suppress the defendant's post-arrest statement).
The narrow procedural issue before us is whether the judge erred in permitting the defense to supplement its expert report by a fixed deadline and to revive its proffer. Especially in a criminal case, trial courts have been encouraged not to allow procedural or scheduling concerns to prevent full development of potential defense evidence. See, e.g., State v. Garcia, 195 N.J. 192, 198-99, 205 (2008) (trial court abused its discretion in denying a brief adjournment so that defense counsel could produce an incarcerated witness to testify on behalf of the defendant at trial); State v. Rodriguez, 254 N.J. Super. 339, 346 (App. Div. 1992) (although not reversible error, brief adjournment should have been granted to allow defense counsel to obtain records to impeach a crucial prosecution witness); cf. State v. Nash, 212 N.J. 518, 546 (2013) (overlooking a procedural rule where strict application might affect "a determination of guilt" or otherwise cause "a miscarriage of justice") (quoting State v. Mitchell, 126 N.J. 565, 587 (1992)). Contrary to the State's argument, the trial court has discretionary authority to permit further development of admissible expert testimony. See Polzo v. Cnty. of Essex, 196 N.J. 569, 586 & n.7 (2008) (recognizing authority of trial court to allow supplementation of expert report to address challenge to expert's testimony as net opinion).
Furthermore, our record does not indicate that the State was prejudiced by the trial court's ruling because of an inability to obtain its own expert evidence. We have no information that the State made such a request. And, since a stay was granted to accommodate this interlocutory appeal, we see no reason an opportunity could not also be provided to the State to obtain expert evidence should the defense request additional time to supplement Dr. Weiss's report.
For the reasons stated, we affirm the trial court's orders and remand for further proceedings in conformity with this opinion.
Affirmed and remanded. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION