Opinion
DOCKET NO. A-4103-12T4
07-14-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. RAYMOND P. RUSSOMANNO, Defendant-Appellant.
Robert Carter Pierce argued the cause for appellant. Frank J. Ducoat, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Mr. Ducoat, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher, Nugent and Manahan. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-10-2998. Robert Carter Pierce argued the cause for appellant. Frank J. Ducoat, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Mr. Ducoat, of counsel and on the brief). PER CURIAM
Defendant, Raymond Russomanno, appeals from a jury verdict finding him guilty of fourth-degree criminal sexual conduct. On appeal, Russomanno alleges various errors, including: violation of The New Jersey Wiretapping and Electronic Surveillance Control Act (Act), N.J.S.A. 2A:156A-1 to -37; error in allowing the jury to take a video recording into deliberations; prosecutorial misconduct; error in permitting the State's expert to give a net opinion; and error in allowing search warrant testimony. We disagree and affirm.
We derive the following from the trial record. In 2007, E.P. experienced back pain and sought medical attention from Russomanno, an orthopedist. E.P. explained to Russomanno the back pain she was experiencing. Russomanno told her to raise her hands in the air. He lowered her skirt, touched her buttocks and unbuttoned her bra. Russomanno advised her that a tendon in her inner thigh could be the cause of her pain and provided exercises that could ease the pain in her lower back. Russomanno then gave her a "miracle shot." During the examination Russomanno did not wear gloves and E.P. was not provided with a dressing gown.
E.P. scheduled a follow-up appointment for heat therapy, but was not seen by Russomanno. E.P. did not feel any relief from the therapy and saw Russomanno again. During his examination, Russomanno pulled E.P.'s skirt down, felt around her buttocks and chest areas, and gave her a shot of Novocain. Again, Russomanno did not wear gloves and E.P. was not provided with a dressing gown.
At the conclusion of the examination, Russomanno asked E.P. to call her husband, which she did. Russomanno proceeded to talk to E.P.'s husband about her "being in the house and [her] husband being in the garage and [her] becoming pregnant[,]" as well as "what type of method of contraception [E.P.] was on." Upon placing her child in a car seat while preparing to leave the office, Russomanno "kind of tapped [E.P.] on the butt" and said "[t]hat's right. Stick that butt out."
E.P. returned to the office and received heat therapy but was not seen by Russomanno. During that visit, the receptionist asked E.P. to schedule another appointment at Russomanno's request. During E.P.'s next visit, Russomanno pulled down her skirt and asked if her buttocks hurt. Russomanno "put his hands in [her] skirt and was rubbing in between [her] inner thigh." He gave her a shot and had "his hands inside [her] underwear in between [her] inner thighs . . . [and made] contact with [her] private area." Russomanno told E.P. she "had a pretty butt and all the components to go along with it." E.P. testified she felt "[n]ervous, sweating, perspiring" and "awkward." Once more, Russomanno did not wear gloves and E.P. was not provided with a gown.
After this visit, E.P. spoke with her husband. It was decided to report the matter to the Bloomfield Police Department and the Essex County Prosecutor's Office. After the report and upon the request of the Bloomfield Police Department, E.P. returned to Russomanno's office fitted with a video camera and audio recorder in her purse. During the visit Russomanno pulled E.P.'s skirt down, felt her buttocks, chest, and inner thigh areas, and gave her a shot. He then sat with her on the floor to show her exercises. The camera failed to record what occurred due to a malfunction. Since the recording failed, E.P. again returned to Russomanno's office. What transpired during the visit was similar to prior visits. On this occasion the video froze, but the audio was recorded.
Russomanno was arrested. A search warrant was executed to obtain E.P.'s patient files. The Essex County Grand Jury indicted Russomanno on forty-six counts of fourth-degree criminal sexual contact; three counts of second-degree attempted sexual assault; and two counts of second-degree sexual assault. Russomanno filed a motion to sever the indictment, to dismiss the indictment, and to suppress the audio/video recording of his treatment. The court granted Russomanno's motion to sever counts one through fifteen (involving E.P.) from counts sixteen to fifty-one (involving fourteen other victims). The court denied the motions to dismiss and to suppress. The trial commenced thereafter.
During the State's case, Dr. Samuel Snyder testified as an expert in orthopedic medicine. Defense counsel did not object to Dr. Snyder's qualifications. Dr. Snyder testified about patient modesty, which he described as how a patient presents for examination and the procedure concerning examination gowns and robes. Dr. Snyder further testified about doctor-patient communications, specifically referencing those communications between Russomanno and E.P.:
The nature of the conversation had a number of personal connotations. How the patient was being addressed in terms of their appearance which I didn't think has any bearing in a doctor/patient relationship and I thought that was beyond the standard of care and certainly, again, I reflect back on my medical training. They gave us instruction in classes where we as medical students were given female patients and they showed us the ways in which to address a woman.
When questioned about the therapeutic benefit of Russomanno putting his hand in E.P.'s blouse, hugging her waist and touching her inner thigh, Dr. Snyder opined there was no "therapeutic benefit within the standard of care for that type of an examination."
Russomanno's wife, who was employed at the office, testified on behalf of the defense. She testified that the office did not have medical gowns and only used rubber gloves for "drawing blood or if the patient had Aids or Hepatitis [or] if [Russomanno] was giving them a shot." She was shown the video during her testimony and commented upon the conduct of the examination as being proper. She also testified that E.P. never complained that Russomanno treated her improperly.
The jury acquitted Russomanno on the counts charging him with second-degree sexual assault and fourth-degree criminal sexual conduct, but convicted him on counts charging him with fourth-degree criminal sexual conduct. Russomanno was sentenced to an aggregate sentence of eighteen months' probation along with the applicable fines and penalties.
The State then moved counts sixteen through fifty-one to trial. The trial court acquitted Russomanno of counts eighteen, twenty-one, twenty-three, thirty-two, thirty-three, forty-two, and fifty-one; it found Russomanno guilty of the lesser-included-offense of "offensive touching" on counts sixteen, seventeen, nineteen, twenty, twenty—two, twenty-four through thirty-one, thirty-four through forty-one, and forty-four through fifty-one. Russomanno does not challenge these findings on appeal. --------
On appeal, Russomanno argues:
POINT I
THE TRIAL COURT ERRED BY NOT SUPPRESSING THE AUGUST 16, 2007 VIDEOTAPE BECAUSE THE STATE DID NOT OBTAIN A WARRANT TO PLACE AN ELECTRONIC SURVEILLANCE DEVICE INSIDE DR. RUSSOMANNO'S OFFICE.
POINT II
A CONSENSUAL INTERCEPTION, AT THE DIRECTION OF THE PROSECUTOR'S OFFICE PURSUANT TO N.J.S.A. 2A:156A-4C, CANNOT BE UTILIZED TO RECORD A SEXUAL ASSAULT BECAUSE SEX CRIMES
ARE NOT ENUMERATED OFFENSES FOR WHICH THE STATE CAN UTILIZE THIS TYPE OF INVESTIGATIVE TOOL PURSUANT TO N.J.S.A. 2A:156A-8.
POINT III
THE TRIAL COURT COMMITTED PLAIN ERROR BY ALLOWING THE JURY TO TAKE THE DVD OF THE AUGUST 16TH VIDEOTAPE INTO THE JURY ROOM DURING DELIBERATIONS AND THEN REPEATEDLY REPLAY THE VIDEO DURING THE DELIBERATION PROCESS. (NOT RAISED BELOW).
POINT IV
THE PROSECUTOR COMMITTED MISCONDUCT BY ARGUING TO THE JURY DURING SUMMATION THAT DR. RUSSOMANNO DESIRED TO ENGAGE IN A "THREESOME" WITH THE VICTIM AND HER HUSBAND, WITH THERE BEING NO EVIDENCE TO SUPPORT THE ALLEGATION.
POINT V
THE TRIAL COURT ERRED WHEN IT PERMITTED THE EXPERT TESTIMONY OF DR. SNYDER CONCERNING THE ISSUES OF PATIENT MODESTY, CONVERSATION BETWEEN A PHYSICIAN AND PATIENT AND WHETHER DR. RUSSOMANNO TOUCHED E.P. BEYOND WHAT WAS MEDICALLY NECESSARY.
POINT VI
DR. RUSSOMANNO WAS DEPRIVED OF A FAIR TRIAL BECAUSE THE STATE ELICITED TESTIMONY FROM AN INVESTIGATOR THAT THE PROSECUTOR'S OFFICE OBTAINED A SEARCH WARRANT BY PRESENTING AN AFFIDAVIT TO A JUDGE, WHO SIGNED THE WARRANT THAT GAVE THE PROSECUTOR'S OFFICE THE RIGHT TO SEARCH DR. RUSSOMANNO'S OFFICE. (NOT RAISED BELOW).
Pursuant to N.J.S.A. 2A:156A-1 to -34, interception of conversations is generally prohibited. See State v. Worthy, 141 N.J. 368, 376 (1995). However, conversations may be lawfully intercepted when:
[a]ny person acting at the direction of an investigative or law enforcement officer to intercept a wire, electronic or oral communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception; provided, however, that no such interception shall be made without the prior approval of the Attorney General or his designee or a county prosecutor or his designee[.]
[N.J.S.A. 2A:156A-4(c).]
Russomanno argues the recording of the visit should have been suppressed as the State failed to obtain a warrant based on probable cause per N.J.S.A. 2A:156A-9. We disagree. Neither N.J.S.A. 2A:156A-10, nor the heightened "special need" showing, required under N.J.S.A. 2A:156A-11, are applicable here. Those statutes are applicable where the Attorney General or county prosecutor applies "to a judge designed to receive [such applications] authorizing the interception . . . ." N.J.S.A. 2A:156A-8. Here, the requirements of N.J.S.A. 2A:156A-4(c) were satisfied since E.P. consented to the recording and the appropriate designee gave prior approval for the recording.
Russomanno also argues a sexual assault cannot be recorded by a consensual interception as such interceptions are not to be employed in sex crime cases. Again, we disagree.
N.J.S.A. 2A:156A-8 specifies the crimes in which interceptions may be utilized. However, that statute is inapplicable since the recording at issue was obtained by consent. The trial court properly held "[t]hose offenses listed under N.J.S.A. 2A:156A-8 which require authorization for application for order to intercept communications are separate from offenses for which a consensual wire intercept is obtained."
Russomanno next argues the court erred by allowing the jury to take the audio recording into the jury room during deliberation.
Russomanno's counsel did not object to the jurors access to the recording. Accordingly, our review is for plain error or error which is clearly capable of producing an unjust result. State v. Adams, 194 N.J. 186, 207 (2008). Rule 2:10-2 states:
Any error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result, but the appellate court may, in the interests of justice, notice plain error not brought to the attention of the trial or appellate court.
Our Supreme Court has addressed the unfettered access by jurors of a recorded statement and recorded testimony. State v. Burr, 195 N.J. 119, 131-32 (2008), cert. denied, 135 S. Ct. 484, 190 L. Ed. 2d 366 (2014). It is now clear that the trial court may never give deliberating jurors unfettered access to a recorded statement admitted into evidence at trial or to recorded testimony given at trial. State v. Weston, ___ N.J. ___, ___ (2015) (slip op. at 36); State v. A.R., 213 N.J. 542, 560-61 (2013); State v. Miller, 205 N.J. 109, 122-23 (2011). It is also clear that the foregoing rule applies whether the recording is audio or video and whether the statement or testimony was given by the defendant or a witness. A.R., supra, 213 N.J. at 560-61.
Specifically, because "[i]t is difficult to deny that there is an advantage that may be gained in [] circumstances" of videotaped testimony, State v. Michaels, 2 64 N.J. Super. 579, 644 (App. Div. 1993), aff'd, 136 N.J. 299 (1994), "if a request is made by a jury to replay a videotaped pretrial interview that has been introduced into evidence, the precautionary procedures adopted in Michaels must apply to the videotaped out-of-court statements." Burr, supra, 195 N.J. at 134.
The Burr Court found the following precautionary procedures should be adopted:
To summarize, if on remand the trial court is faced with a request by the jury to have a replay of the videotaped pretrial interview of [the child], the court first should inquire of the jury whether it would be satisfied with a read back of [the child]'s testimony. If the jury persists in its request to view the videotape again,
then the court must take into consideration fairness to the defendant. The court must determine whether the jury must also hear a read back of any direct and cross-examination testimony that the court concludes is necessary to provide the proper context for the video playback. Furthermore, we reiterate that the court retains the ultimate discretion to deny the playback request, although that would require a showing that the consequential prejudice to the defendant from the playback could not be ameliorated through other means. And, finally, any playback of the videotape must occur in open court, along with the read back of related testimony that the court shall require.
[Id. at 135.]
In Miller, supra, 205 N.J. at 122-23, the Court held that: 1) a jury's request to play back testimony should be granted; 2) the entire testimony should be played back so the evidence may be considered in its proper context; 3) a jury's request to hear limited parts should be honored; 4) playbacks should be done in open court; 5) judges should caution juries to prevent placing undue emphasis on particular replayed testimony; and 6) judges should make a precise record of what was played back.
In A.R., supra, 213 N.J. at 542, the jury reviewed two video recordings, one of the victim and one of the defendant, marked as exhibits during deliberations. Id. at 550-51. The Court found that although it did "not approve of the unfettered access to the video-recorded statements of the victim and defendant in the jury room during deliberations," it was not a "structural error," but rather a procedural lapse in failing to replay the statements in open court. Id. at 557-58. Further, our Court noted "defense counsel actively encouraged the jury to review the video-recorded statements and urged the trial court to submit the video recordings to the jury." Id. at 561. Our Court stated that because "trial errors that 'were induced, encouraged or acquiesced in or consented to by defense counsel ordinarily are not a basis for reversal on appeal[,] . . .'" the party that invited the error is barred from raising an objection for the first time on appeal. Ibid. (citations omitted).
Here, the jury was allowed "unfettered access" to the video recording, which was in evidence as an exhibit. "Generally, once an exhibit has been admitted into evidence, the jury may access it during deliberations, subject to the court's instructions on its proper use." Burr, supra, 195 N.J. at 133-34; see also R. 1:8-8(a) ("The jury may take into the jury room the exhibits received in evidence, and . . . [t]he court may . . . permit the submission to the jury . . . provided further that the court finds that no party will be unduly prejudiced[.]").
At trial, the State introduced the video recording into evidence during the Bloomfield detective's and E.P.'s testimony. The prosecutor referenced the video during summation and requested the jury to consider it during deliberations. Defense counsel used the video during the defense case by requesting Russomanno's wife to reference it to explain why what her husband was depicted doing was medically necessary.
Further, during the defense summation, counsel invited the jury "to look through [the video]" and argued:
I submit to you that every moment on that video is backed up by medical science.Later in the summation counsel referenced the video again:
I want you to look through this. He's asking her to point. "How is this? Higher? Lower?"
She tells him and then look at the video because on the video she's pointing down. She's pointing down and he gives her an injection in the site. He gives her an injection and he palpates the area, moves it around with his finger.
You notice the last video, the video, it's clear on the first visit [E.P.] said he was under my breasts. She never said anything about touching her inner thighs. She never said anything about touching her buttocks on that first visit. It's not there.Counsel concluded by stating, "[I] said what I have to say. You have the transcript. You have the treatment notes. You have the video."
She indicated that it was the back if you look at the video at no time does [defendant] touch her breast on the video.
On the video at no time does [defendant] touch her vagina. On the video at no time does [defendant] go under her blouse and at no time does he touch her breast.
The State argues, and we agree, to the extent there was error for the jury to view the video during deliberation, it was "invited" by Russomanno. "[T]rial errors that 'were induced, encouraged or acquiesced in or consented to by defense counsel ordinarily are not a basis for reversal on appeal . . . .'" A.R., supra, 213 N.J. at 561 (quoting State v. Corsaro, 107 N.J. 339, 345 (1987)). Stated differently, "if a party has 'invited' the error, he is barred from raising an objection for the first time on appeal." Ibid.
The invited error doctrine is rooted in considerations of fairness and prevents litigants from manipulating the system. Ibid. Furthermore, it "acknowledges the common-sense notion that a 'disappointed litigant' cannot argue on appeal that a prior ruling was erroneous 'when that party urged the lower court to adopt the proposition now alleged to be error.'" Ibid. (citation omitted). It is implicated "'when a defendant in some way has led the court into error' . . . and it has been applied 'in a wide variety of situations . . . .'" Ibid. (citation omitted).
In A.R., the Court applied the invited error doctrine to a claim similar to the one Russomanno makes here. A.R. argued that the trial court erred in allowing into the jury room his videotaped, pretrial statement. Id. at 562. At trial, the jury viewed the videotape, which included defendant's incriminating statements, but also included him saying his crimes were done in a "moment of weakness" and asking for forgiveness. Ibid. In her summation, defense counsel told the jury that it "probably should review that tape again" to see how tired and "beaten down" defendant was, and "urged the jury to find that defendant was not thinking clearly during the interview." Ibid. Defense counsel also stood silent when the trial judge indicated that the jury would have the opportunity to view the video, and later agreed that the jury should have such access. A.R., supra, 213 N.J. at 562-63.
"Under those circumstances," the Court unanimously found, "defendant invited the very error he now considers so egregious to warrant a new trial." Id. at 563. Defense counsel "utilized the video recording as part of her defense strategy by encouraging the jury to thoroughly consider the video recording in its deliberations." Ibid. "To that end, defense counsel did not object to the jury's unfettered access to the video[,]" and "even provided a rationale for support of such access." Ibid. That conduct "encouraged" the trial court to allow that access, and counsel, "[a]t the very least, . . . consented or acquiesced to the request." Ibid. (citing Corsaro, supra, 107 N.J. at 345).
Here, counsel "utilized the video recording as part of [his] defense strategy by encouraging the jury to thoroughly consider the video recording in its deliberations[,]" and by relying upon the video and what it depicted during the testimony of Russomanno's wife. Having invited or, at the very least, having acquiesced to the video's consideration by the jury, Russomanno's argument for a new trial on this "error" is without merit. Given our determination, we do not need to address whether permitting the jury access to the video constituted plain error.
Russomanno also argues the prosecutor's comments during summation constituted misconduct because they were not supported by evidence at trial.
It is well-settled that a prosecutor may only make remarks constituting legitimate inferences from record facts. State v. Perry, 65 N.J. 45, 48 (1974). On the other hand, he or she may neither go beyond the evidence presented to the jury, State v. Farrell, 61 N.J. 99, 103 (1972), nor launch an unfair attack on defense counsel. State v. Sherman, 230 N.J. Super. 10, 15-19 (App. Div. 1988). If a prosecutor is found to have committed misconduct, an appellate court should "evaluat[e] the severity of the misconduct and its prejudicial effect on the defendant's right to a fair trial" to decide whether a new trial is warranted. State v. Wakefield, 190 N.J. 397, 437 (2007) (internal quotation omitted), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008). A reviewing court will reverse a conviction and order a new trial only upon finding the prosecutor's failure to confine his or her summation to appropriate comments was "so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999).
Russomanno alleges two specific comments in the summation were inflammatory. The first occurred when the prosecutor stated to the jury:
[E.P.'s] husband came and testified to the nature of the conversation. [Defendant] begins talking to him about, well you know, if your wife was in one room and you're in another room, you could get her pregnant.Defense counsel objected, but did not request the remark be stricken or request a curative instruction. Russomanno claims there was no evidence concerning a "threesome" and the prosecutor's remark suggested that Russomanno was intending or fantasizing about a "threesome" with E.P. and her husband.
This is his own threesome. This is his own nature of a ménage a trois.
The prosecutor continued:
[Defendant's] getting her husband involved as well, getting the husband involved in talking to him about things like this. His wife's contraception. What does he get from the husband? The patient is right there with you. He's obsessed, he's sexually obsessed and this is all part of his obsession with her.
The second comment the prosecutor stated:
[Defendant] has this young woman. He grooms her as you would a child. This is a woman with a ninth-grade education she told you. This is not some sophisticated woman here. This is a woman whom he knew that he could take and he could mold and manipulate.Again, counsel objected, but did not request the remark be stricken or request a curative instruction. When placed in the context of the State's theory that Russomanno's purpose in the exams was for sexual gratification, an element of the charged crimes, we consider the remarks to be "fair comment." Even were we to conclude that the comments were improper, they were not so egregious as to deprive defendant of a fair trial, Frost, supra, 158 N.J. at 83.
He kept building trust and confidence in her and as you can see . . . his activities kept escalating, the behavior kept escalating, getting more aggressive.
He is a wolf in scrubs. That's what it comes down to. A wolf in scrubs with a license to molest.
Russomanno next argues the expert testimony of Dr. Snyder was impermissible because: 1) Dr. Snyder opined Russomanno violated the standard of care for patient modesty in failing to provide E.P. with a gown; 2) Dr. Snyder opined Russomanno violated the standard of care by speaking inappropriately about her appearance; and 3) Dr. Snyder opined Russomanno touched E.P. beyond what was medically necessary.
N.J.R.E. 702 governs the admission of expert testimony: "[i]f 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 of an opinion or otherwise." N.J.R.E. 702 imposes three requirements:
(1) the intended testimony must concern a subject matter that is beyond the ken of the average juror;
(2) the subject of the testimony 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 explain the intended testimony.
[State v. Harvey, 151 N.J. 117, 169 (1997) (quoting State v. Kelly, 97 N.J. 178, 208
(1984)), cert. denied, 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed. 2d 683 (2000).]
A reviewing court must "give substantial deference to the trial court's decision as to whether a witness is qualified to present expert testimony." State v. Rosales, 202 N.J. 549, 562 (2010). "[I]t is well-established that the qualifications of experts are left to the discretion of the trial court, and its decision is conclusive unless clearly shown to be erroneous." State v. Perez, 218 N.J. Super. 478, 483 (App. Div. 1987).
Generally, "[a] physician must exercise a duty of care to a patient that, generally, any similarly credentialed member of the profession would exercise in a like scenario." Komlodi v. Picciano, 217 N.J. 387, 410 (2014). A patient's "standard of care generally is not a matter of common knowledge and must be established by experts who typically specialize in a field of medicine similar to that of the defendant-physician." Ibid. Specifically, there is no doubt that a board-certified orthopedist is "qualified to offer opinions about the applicable standards of care." Khan v. Singh, 200 N.J. 82, 101 (2009).
Here, Russomanno alleges Dr. Snyder's expert testimony, concerning patient modesty and physician-patient communications, was inadmissible as Dr. Snyder was qualified as an expert in orthopedics, not in professional ethics. Additionally, Russomanno claims Dr. Snyder's expert testimony regarding his comments to E.P. were inadmissible as Dr. Snyder's opinion as to the "rules" to be followed was based on his personal belief regarding correctness and not based on scientific study.
Prior to the testimony of Dr. Snyder, the court heard argument as to its scope. Counsel for Russomanno argued Dr. Snyder should not be permitted to testify as an expert on "patient modesty" and "inappropriate ethical conversation" with a patient as the testimony would be based upon his personal experience and medical education, not a "standard of care." The court ruled Dr. Snyder could opine that the treatment by Russomanno was not appropriate and permitted the "conversation" testimony as relevant to Russomanno's state of mind.
Thereafter, in the presence of the jury, Dr. Snyder was ruled to be an expert in orthopedics without objection. The court then instructed the jury:
As you just heard the Court has accepted Dr. Snyder as an expert.
As a general rule witnesses can only testify as to the facts known by them.
This rule ordinarily does not permit the opinion of the witness to be received as evidence. However, under our rules of evidence an exception to this rule exists in the case of an expert witness who may give their opinion as to any matter in which he or she is versed which is material to the case.
In legal terminology, an expert witness is a witness who has special knowledge, skill, experience or training that is not possessed by the average juror and who thus may be able to provide assistance to the jury in understand the evidence presented and determine the facts in this case.
Additionally, you are not bound by an expert's opinion but you should consider the opinion and give it the weight you deem it is entitled to have, whether that be great or slight or you may reject all of it.
In examining each opinion or the opinion of the doctor, you may consider the reasons given for it, if any, and you may also consider the qualifications and credibility of the expert.
It is always within the special function of the jury to determine whether the facts upon which the answer or testimony of an expert is based actually exist.
The value of weight of the opinion of the expert is dependent upon and no stronger than the facts upon which it is based.
In other words, the probative value of the opinion will depend upon whether from all the evidence in the case you find those facts are true.
You may in fact determine from the evidence in this case that the facts that form the basis of the opinion are true, are not true, or are true in part only.
In light of such findings, you may decide what effect such determination has upon the weight to be given to the opinion of the expert.
Your acceptance or rejection of the expert opinion will depend therefor to some extent
on you findings as to the truth of the facts relied upon.
The ultimate determination of whether or not the State has proven the defendant's guilt beyond a reasonable doubt is to be made only by you, the jury.
During the testimony, Russomanno's counsel renewed his objection that the opinion offered on the "rules" of conduct was based on Dr. Snyder's personal experience and not based on medical standards. Defense counsel stated he would "ask [Dr. Snyder] on cross-examination what rules he's referring to." "[C]ourts allow the thinness and other vulnerabilities in an expert's background to be explored in cross-examination and avoid using such weaknesses as a reason to exclude a party's choice of expert witness to advance a claim or defense." State v. Jenewicz, 193 N.J. 440, 455 (2008). Here, Russomanno's counsel utilized cross-examination to explore the "thinness"" and "vulnerabilities" in the foundation that formed the bases for Dr. Snyder's opinion.
As for the net opinion argument, N.J.R.E. 703 allows expert opinion based on facts or data derived from "(1) the expert's personal observations; or (2) evidence admitted at the trial; or (3) data relied upon by the expert which is not necessarily admissible in evidence but which is the type of data normally relied upon by experts in forming opinions on the same subject." Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment 1 on N.J.R.E. 703 (2013). The corollary of that rule is the net opinion rule, which "requires an expert to give the why and wherefore of his or her opinion, rather than a mere conclusion." State v. Townsend, 186 N.J. 473, 494 (2006) (quoting Rosenberg v. Tavorath, 352 N.J. Super. 385, 401 (App. Div. 2002). An expert's education, training, and experience provide a sound foundation for his or her opinion and thus, is not a net opinion. Id. at 495; State v. Torres, 183 N.J. 554, 578-79 (2005).
Dr. Snyder's opinion was based on his review of the videotape. As an expert in orthopedics, he was qualified to opine about the applicable standards of care. See Khan, supra, 200 N.J. at 101. Dr. Snyder also testified as to the "why and wherefore" of his opinion, specifically for the palpating of an injection site since it "helps you formulate where you're going to put an injection[.]" Dr. Snyder's testimony was based on his education, training, and experience. As such, we conclude that Dr. Snyder's opinion was not a net opinion.
Even were we to conclude that Dr. Snyder's testimony regarding patient modesty and ethics was outside the boundaries of permissible opinion, we find the error to be harmless. The record included opinion testimony within the expertise of Dr. Snyder and was based upon the applicable standard of care. Further, the judge gave the jurors instructions both prior to Dr. Snyder's testimony and in the final charge addressing their consideration of expert testimony. As we noted, Russomanno was able, through counsel, to address the "objectionable" opinion testimony through cross-examination. As such, we are confident that to the extent there was error, it did not lead the jury to a result it otherwise might not have reached. State v. Macon, 57 N.J. 325, 336 (1971).
Finally, Russomanno argues testimony regarding the search warrant, which allowed the Prosecutor's Office to search and obtain E.P.'s medical records, was irrelevant to the case and the trial court's failure to strike this testimony was plain error.
Russomanno relies on our decision in State v. Milton, 255 N.J. Super. 514 (App. Div. 1992), abrogated in part as stated in State v. Williams, 404 N.J. Super. 147 (App. Div. 2008). In Milton, the prosecutor referred to a search warrant for the person of the defendant in his opening and through the State investigator's testimony. Milton, supra, 255 N.J. Super. at 519. This court found it was improper for the prosecutor to make these references since "mentioning the presence of a search warrant could have been fully accomplished by the prosecutor's reference only to the existence of a search warrant for the premises that were invaded." Id. at 520. This court concluded that defendant was denied his right to a fair trial because the prosecutor's reference had the capacity to mislead the jury. Ibid.
In State v. Marshall, 148 N.J. 89 (1997), the court stated that it was "aware of no authority in support of [] a rule" that "the jury should be shielded from knowledge that search warrants have been issued in a criminal matter because the prior judicial of probable cause may influence the jury to assume guilt." Id. at 240. Rather, the Court would be "satisfied that a properly instructed jury will not presume guilt based on the issuance of a search warrant." Ibid. The Court distinguished Milton, by holding the defendant in Marshall did not claim any reference to search warrants was misleading. Ibid.
Without lodging an objection before the trial judge, Russomanno now cites to two "search warrant" references as error. The first reference occurred during the opening by the prosecutor when he stated:
August the 20th of 2007 the defendant is arrested for these charges and a search warrant was gotten by the detective in the case.
They go to the office, they get [E.P.]'s personal file, subpoenas are issued and they get billing records and again to match up
different times as far as the appointments that [] [E.P.] was at the office so the whole legal process then begins.
The second reference occurred during the testimony of a State's witness, a Bloomfield detective. When the prosecutor asked the detective how he obtained E.P.'s patient records, the detective replied: "[s]earch warrant affidavit which has to be signed by a judge and we brought it to the judge to be signed and we obtained that."
We are satisfied the two brief references to the search warrant, taken in context, were insufficient to mislead the jury. Further, as there is no "rule" prohibiting such reference, we hold there was no plain error.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION