STATE OF NEW JERSEY VS. FRANCISCO MONTEROTORIVO (14-07-2351, ATLANTIC COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2434-16T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
FRANCISCO MONTEROTORIVO,
Defendant-Appellant.
___________________________
Submitted February 12, 2018 – Decided July 18, 2018
Before Judges Messano and Vernoia.
On appeal from Superior Court of New Jersey,
Law Division, Atlantic County, Indictment No.
14-07-2351.
Joseph E. Krakora, Public Defender, attorney
for appellant (Michele E. Friedman, Assistant
Deputy Public Defender, of counsel and on the
briefs).
Damon G. Tyner, Atlantic County Prosecutor,
attorney for respondent (Dylan P. Thompson,
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Defendant Francisco Monterotorivo appeals from his conviction
following a jury trial for first-degree attempted murder, second-
degree aggravated assault, third-degree aggravated assault with a
deadly weapon, fourth-degree aggravated assault with a deadly
weapon, and fourth-degree assault by motor vehicle. Defendant
also challenges the court's imposition of an aggregate eleven-year
sentence subject to the requirements of the No Early Release Act
(NERA), N.J.S.A. 2C:43-7.2. We reverse defendant's convictions
and remand for a new trial.
I.
The criminal charges against defendant arise from an October
13, 2013 incident that occurred in front of the Somers Point home
he shared with his girlfriend Mary Gettle, her mother Lourdes
Hernandez, son Christopher Gettle, and four-year old daughter,
A.M. Early in the afternoon, Mary Gettle's ex-husband and A.M.'s
father, Edgar Martinez, picked up A.M. and Hernandez at defendant's
home to take them shopping.
When Martinez later returned with A.M. and Hernandez,
defendant's Ford Expedition was parked in the driveway. Martinez
stopped his car in the road at the end of the driveway. Hernandez
exited Martinez's vehicle and went to the home's porch, where she
told Christopher Gettle to retrieve A.M. and groceries from
Martinez's vehicle. Christopher Gettle went to Martinez's
vehicle, obtained the groceries and brought A.M. into the home.
Martinez remained in the vehicle during this time.
2 A-2434-16T3
While Christopher Gettle collected the groceries and A.M.
from Martinez's vehicle, defendant exited the house, spoke with
Hernandez briefly on the porch, and entered his vehicle in the
driveway to depart for work. He could not, however, leave because
Martinez's car blocked the driveway.
Martinez testified defendant sounded the horn on his vehicle
and, in response, Martinez moved his car so he no longer blocked
the driveway. He then realized A.M. left food and ice cream in
his car, so he exited his vehicle, reached into it, took the food
and ice cream in his hand, and began walking along the curb near
his parked vehicle toward the driveway and defendant's home. As
he did so, defendant backed his vehicle out of the driveway and
moved it directly toward Martinez.
Martinez said that when defendant's vehicle was only one
meter away, he extended his arm and hand toward defendant's vehicle
as if to say "stop," but defendant's vehicle continued to move
toward him and struck him, causing broken bones and other serious
physical injuries resulting in a four-month hospital stay and
three surgeries. Defendant's vehicle also struck and caused damage
to Martinez's parked car. Martinez stated that as defendant backed
up his vehicle he said, "[w]hat the fuck are you doing here. And
. . . today you are going to die dog." Martinez also testified
that defendant laughed after hitting him.
3 A-2434-16T3
Defendant testified that when he entered his vehicle, he
started the engine so Martinez would move his vehicle from the
driveway, but Martinez "didn't bother." Defendant said he honked
his horn, and Martinez moved his vehicle away from the driveway
but appeared "bothered" for having to do so.
According to defendant, while he backed his car out of the
driveway, he saw Martinez "step[] out suddenly out of his car
. . . lean[] over [and] try[] to grab something." Defendant saw
Martinez had something in his hand and point the object at him.
Defendant applied the brake and ducked down in the driver's seat,
because he believed Martinez held a gun.1 Defendant said at that
time his vehicle accelerated sideways.
Defendant testified he felt an impact on the right corner of
his vehicle, applied the brake and exited the vehicle but did not
see anything. He drove his vehicle back onto the driveway where
he waited until the police arrived.
Defendant also testified that three or four months earlier,
he spoke with Martinez on the phone when Martinez called Mary
Gettle. Defendant said Martinez threatened to kill him the next
time he saw him. Defendant testified that he believed Martinez
was fulfilling the threat when he approached defendant and extended
1
Martinez was actually holding a Wendy's bag containing fries
and a chocolate "Frosty."
4 A-2434-16T3
his hand and arm with what defendant believed was a gun. During
his testimony, Martinez conceded he threatened defendant during
the telephone conversation, but explained that defendant also
threatened him.
Somers Point patrolman John Conover was one of the officers
who arrived at the scene following the incident. He explained
that due to the seriousness of Martinez's injuries, the police
conducted an investigation of what they thought could be a fatal
accident. Conover testified he had been assigned to the Traffic
Safety Unit for many years, had extensive training in motor vehicle
accident investigations, and had investigated more than 1000 motor
vehicle accidents.
Conover described the damages to defendant and Martinez's
vehicles, and explained various measurements of the scene made by
the police. Conover was asked if, based on his observations and
the data collected, he made "a determination [of] how the ultimate
crash occurred . . . [.]" Defense counsel objected to the
testimony, arguing Conover had not provided an expert report, but
was offering an expert opinion. The court overruled the objection.
Conover then testified in detail concerning the manner in which
he believed the incident occurred.
Somers Point patrolman David Ficca testified that when he
arrived at the scene, he first observed defendant bloodied and in
5 A-2434-16T3
pain lying in the road under his vehicle, with one of his legs on
the curb. Emergency medical technicians arrived and tended to
Martinez. Ficca spoke to defendant, who remained in the driveway
with his vehicle.
Defendant was arrested at the scene and subsequently charged
in an indictment with one count of first-degree attempted murder,
N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3(a)(1)(2) (count one), one
count of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1)
(count two), one count of third-degree aggravated assault with a
deadly weapon, N.J.S.A. 2C:12-1(b)(2) (count three), one count of
fourth-degree aggravated assault with a deadly weapon, N.J.S.A.
2C:12-1(b)(3), (count four), and one count of fourth-degree
aggravated assault by automobile, N.J.S.A. 2C:12-1(c) (count
five).
Prior to his trial, the court conducted a Miranda2 hearing,
and suppressed statements made by defendant to Ficca at the scene.
By leave granted, we heard the State's appeal of the court's
suppression order, and reversed. See State v. Monterotorivo, No.
A-1565-14 (App. Div. June 16, 2015) (slip op. at 11-12).
The jury convicted defendant of all of the charges in the
indictment. At sentencing, the court merged counts two, three,
2
Miranda v. Arizona, 384 U.S. 436 (1966).
6 A-2434-16T3
four and five into count one, and imposed an eleven-year custodial
term subject to NERA's requirements. The court further ordered
that defendant pay $5581.97 in restitution. This appeal followed.
On appeal, defendant makes the following arguments:
POINT I
THE COURT ABUSED ITS DISCRETION IN DENYING THE
MOTION FOR A MISTRIAL WHEN THE PROSECUTOR
SUGGESTED THAT THE DEFENDANT FAILED TO ADVISE
POLICE OF HIS SELF-DEFENSE CLAIM AT THE SCENE
ON CROSS-EXAMINATION. WHEN THE PROSECUTOR
REPEATED THE SAME ARGUMENT DURING SUMMATION,
THE JURY HAD BEEN TAINTED, SUCH THAT THE COURT
HAD AN INDEPENDENT OBLIGATION TO DECLARE A
MISTRIAL SUA SPONTE.
POINT II
THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN
FAILING TO CHARGE THE JURY ON THE LESSER-
INCLUDED OFFENSE OF ATTEMPTED
PASSION/PROVOCATION MANSLAUGHTER.
POINT III
THE COURT COMMITTED REVERSIBLE ERROR WHEN
PERMITTING THE STATE TO INTRODUCE ACCIDENT-
RECONSTRUCTION TESTIMONY FROM AN OFFICER WHO
WAS NOT QUALIFIED AS AN EXPERT, AND IN FAILING
TO ISSUE AN EXPERT JURY CHARGE WITH RESPECT
TO THAT TESTIMONY.
A. Officer Conover, a Lay Witness, Should Have
Been Prohibited from Providing Accident-
Reconstruction Testimony, Because His
Testimony Required Specialized Knowledge
Beyond the Ken of an Average Juror.
B. The Court Erred in Failing to Issue an
Expert Jury Instruction Regarding the
Officer's Accident-Reconstruction Testimony.
7 A-2434-16T3
C. The Improper Admission of the Officer's
Accident-Reconstruction Testimony, Coupled
With the Omission of an Expert Jury Charge for
this Testimony Warrants Reversal.
POINT IV
IN THE ALTERNATIVE, THE MATTER SHOULD BE
REMANDED FOR RESENTENCING BECAUSE THE COURT
ERRONEOUSLY FOUND AGGRAVATING FACTORS THREE,
SIX, AND NINE.
II.
Defendant first contends the court abused its discretion by
denying his mistrial motion after the State elicited testimony
that he failed to advise the police that he acted in self-defense
when the police first questioned him at the scene. Defendant
argues the prosecutor's questions violated his constitutional
right to remain silent. Defendant argues the court further erred
by giving a curative instruction requiring only that the jury
ignore the prosecutor's question. Defendant further asserts the
State violated his constitutional right to remain silent by arguing
in summation that defendant failed to advise the police that
Martinez had a weapon.
"A mistrial should only be granted 'to prevent an obvious
failure of justice.'" State v. Smith, 224 N.J. 36, 47 (2016)
(quoting State v. Harvey, 151 N.J. 117, 205 (1997)). "Whether an
event at trial justifies a mistrial is a decision 'entrusted to
the sound discretion of the trial court.'" Ibid. (quoting Harvey,
8 A-2434-16T3
151 N.J. at 205). We "will not disturb a trial court's ruling on
a motion for a mistrial, absent an abuse of discretion that results
in a manifest injustice." Ibid. (quoting State v. Jackson, 211
N.J. 394, 407 (2012)).
"To address a motion for a mistrial, trial courts must
consider the unique circumstances of the case." Ibid. (citing
State v. Allah, 170 N.J. 269, 280 (2002); State v. Loyal, 164 N.J.
418, 435-36 (2000)). "If there is 'an appropriate alternative
course of action,' a mistrial is not a proper exercise of
discretion." Ibid. (quoting Allah, 170 N.J. at 281). "For
example, a curative instruction, a short adjournment or
continuance, or some other remedy, may provide a viable alternative
to a mistrial, depending on the facts of the case." Ibid.During his direct examination, defendant explained that prior
to accelerating his vehicle into Martinez, he observed Martinez
raise his hand toward him with what he believed was a gun.
Defendant's request for a mistrial is founded on the following
colloquy during the prosecutor's cross-examination concerning that
testimony:
Prosecutor: Okay. Now, after – after you
assaulted Edgar Martinez, after you
accelerated into him, you said you waited at
the scene, is that correct?
Defendant: What was that?
9 A-2434-16T3
Prosecutor: You said – you told us that you
remained at the scene after the assault?
Defendant: Yes.
Prosecutor: Okay. And you spoke to an officer,
a police officer at the scene?
Defendant: I tried to explain what had
happened, but he didn't understand me.
Prosecutor: Okay. You actually explained to
him that it was an accident, is that right?
Defendant: Yes.
Prosecutor: Okay. And you didn't tell any
officer at that time that you thought the
victim had a – that Edgar Martinez had a
weapon, did you?
Defendant: Well, I – practically I didn't say
that. I was nervous.
Prosecutor: But you didn't tell anybody until
today? This is the first time, is that
correct?
Defense counsel objected to the final question, argued it was
improper, and moved for a mistrial. The judge denied the motion,
stating he would "tell the jury to disregard the question."3 The
3
The judge also said to defense counsel, "Do you think I'm going
to mis-try this case with these two resident aliens with – with
interpreters, and with everything else that's going on? Do you
think I'm going to mis-try this case? Really?" Such
considerations have no place in the determination of a mistrial
motion, but we decide only whether the court's denial of the motion
is correct, and not its reasoning. See Do-Wop Corp. v. City of
Rahway, 168 N.J. 191, 199 (2001) (explaining "appeals are taken
from orders and judgments and not from . . . reasons given for the
ultimate conclusion").
10 A-2434-16T3
judge then instructed the jury that the prosecutor's "last question
. . . is an improper question" and was to be "disregarded." The
court informed the jury to "just disregard that question as if was
not asked."
The mistrial motion premised on the alleged improper
questions, "But you didn't tell anybody until today? This is the
first time, is that correct?" Defense counsel made a timely
objection, which the court sustained by finding the questions were
improper, and defendant never answered the questions. The court
immediately provided a clear and direct curative instruction
advising the jury to disregard the prosecutor's question.
Defendant did not object to the curative instruction or request
that any further instructions be provided, and we assume the jury
followed the court's instructions. See State v. Little, 296 N.J.
Super. 573, 580 (App. Div. 1997) ("We assume the jury followed the
court's instructions."). We therefore discern no error in the
court's denial of defendant's mistrial motion. Defendant fails
to establish the court's use of the curative instruction in
response to the prosecutor's improper question resulted in a
manifest injustice.
Defendant also argues he was denied a fair trial because the
prosecutor asked on cross-examination if he told any officer at
the scene that Martinez had a weapon. In response, defendant
11 A-2434-16T3
testified that he had not. Defendant argues the question and his
response violated his right to remain silent.
We consider the argument under the plain error standard, R.
2:10-2, because defendant did not object to the prosecutor's
question or statement during summation, see State v. Daniels, 182
N.J. 80, 95 (2004) (holding the plain error standard of review
applies where there was no objection to a question at trial).
Plain error is a "[l]egal impropriety . . . prejudicially affecting
the substantial rights of the defendant and sufficiently grievous
to justify notice by the reviewing court and to convince the court
that of itself the error possessed a clear capacity to bring about
an unjust result." State v. Camacho, 218 N.J. 533, 554 (2014)
(first alteration in original) (quoting State v. Adams, 194 N.J.
186, 207 (2008)).
A defendant has a constitutional right to remain silent. U.S.
Const. amend. V; State v. Brown, 190 N.J. 144, 153 (2007). New
Jersey does not have a state constitutional equivalent to the
Fifth Amendment. Our "privilege against self-incrimination . . .
is deeply rooted in this State's common law and codified in both
statute and an evidence rule." State v. Muhammad, 182 N.J. 551,
567 (2005). N.J.S.A. 2A:84A-19 and its corollary N.J.R.E. 503
provide that "every natural person has a right to refuse to
disclose in an action or to a police officer or other official any
12 A-2434-16T3
matter that will incriminate him or expose him to a penalty or a
forfeiture of his estate . . . ."
In New Jersey, it is "fundamental" that a criminal suspect
has the right to remain silent when in police custody or
interrogation, State v. Deatore, 70 N.J. 100, 114 (1976), and that
when such an individual expressly refuses to answer police queries,
"no inference can be drawn against him under the doctrine of
acquiescence or any other concept," id. at 115 (quoting State v.
Ripa, 45 N.J. 199, 204 (1965)).
In Muhammad, 182 N.J. at 558, the defendant was charged with
sexual assault. During trial, the prosecutor made repeated
references to the defendant's failure to inform the police that
his sexual encounter with the victim was consensual, a position
asserted for the first time at trial. Id. at 562. The Court held
the fact that "the defendant gave only a partial account to the
police at or near the time of his arrest did not open the door to
prosecutorial questioning about what the defendant did not tell
to the police." Id. at 571. The Court reasoned that a jury should
not be able to infer guilt from a suspect's silence, because we
"cannot know whether a suspect is acquiescing to the truth of an
accusation or merely asserting his privilege[.]" Id. at 567.
It is permissible, however, for the State to "point out
differences in the defendant's testimony at trial [if] his
13 A-2434-16T3
[earlier] statements . . . were freely given." State v. Tucker,
190 N.J. 183, 189 (2007). "A defendant's right to remain silent
is not violated when the State cross-examines a defendant on the
differences between a post-Miranda statement and testimony at
trial." Ibid. Thus, our Supreme Court has determined that a
defendant can be cross-examined at trial about facts he or she
failed to divulge during voluntary interviews with police, but
about which he or she testifies for the first time at trial. Id.
at 186-90. The Court held that the State's use of such
inconsistences "did not constitute an unconstitutional comment on
[the defendant's] silence." Id. at 190.
In State v. Kucinski, 227 N.J. 603, 608 (2017), the defendant
gave a voluntary statement to the police during which he did not
disclose facts about which he testified at trial. The Court again
held the defendant had waived his right to remain silent in
providing his statements to the police, and that any conflicts
between his direct testimony at trial and his voluntary statement
were appropriate topics for cross-examination by the prosecutor.
Id. at 623-24.
Here, we have determined plaintiff was not the subject of a
custodial interrogation when he spoke to Ficca at the scene, and
it was unnecessary that Ficca inform defendant of his Miranda
rights. Monterotorivo, slip op. at 10. Thus, there is no dispute
14 A-2434-16T3
that defendant's statements to Ficca at the scene were voluntary.4
During his interaction with Ficca at the scene, defendant said he
accidently struck Martinez as he backed out of his driveway, but
did not say that he believed Martinez had a weapon. Defendant
testified at trial, however, that he believed Martinez had a
weapon.
The prosecutor's question - whether defendant advised any
officer at the scene that Martinez had a weapon - was properly
limited to inconsistencies between the voluntary statements
defendant provided to Ficca at the scene and his trial testimony.
The question therefore did not implicate or violate defendant's
right to remain silent. See Kucinski, 227 N.J. at 623-24; Tucker,
190 N.J. at 190.
We also reject defendant's contention that the prosecutor's
summation violated his state law privilege against self-
incrimination. The prosecutor argued to the jury:
[a]gain, this defendant mentioned what he
thought was a weapon and you heard from so
many witnesses, not one of those people
4
We are aware that "[o]ur state law privilege [to remain silent]
does not allow a prosecutor to use at trial a defendant's silence
when that silence arises 'at or near' the time of arrest, during
official interrogation, or while in police custody[.]" Muhammad,
182 N.J. at 569 (citations omitted). We have noted that defendant
was not the subject of a custodial interrogation only because it
provides a basis for our prior holding that the State proved
defendant's statements to Ficca were voluntary beyond a reasonable
doubt. Monterotorivo, slip op. at 11-12.
15 A-2434-16T3
involved ever mentioned what they thought
would be a weapon. He never told Officer Ficca
or any other officer at the scene that a weapon
was involved. He never mentioned it.
The prosecutor's argument was carefully tailored to the
permissible evidence showing an inconsistency between defendant's
voluntary statements to the police at the scene and his trial
testimony. For the same reasons, the prosecutor's argument based
on that testimony neither implicated defendant's right to remain
silent nor constituted plain error. See Kucinski, 227 N.J. at
623-24; Tucker, 190 N.J. at 190.
III.
Defendant next argues the court erred by failing to sua sponte
charge the jury on attempted passion/provocation manslaughter as
a lesser-included offense of attempted murder. Defendant claims
the evidence "clearly indicated that" he may have committed
attempted passion/provocation manslaughter because "the jury could
have easily found that his actions constituted imperfect self-
defense."
The State argues the trial court correctly omitted the
passion/provocation manslaughter charge to the jury, because the
record, after applying an objective standard, does not provide a
"clear indication . . . defendant was adequately provoked" to
16 A-2434-16T3
satisfy the two objective elements of passion/provocation
manslaughter.
Defendant was charged with first-degree attempted murder.
Defendant did not request an instruction on attempted
passion/provocation manslaughter as a lesser-included offense, and
did not object to the court's charge which lacked the instruction.
We therefore consider defendant's argument under the plain error
standard, R. 2:10-2, and will reverse only if the error is
sufficient to raise a "reasonable doubt . . . as to whether the
error led the jury to a result it otherwise might not have
reached." State v. Funderburg, 225 N.J. 66, 79 (2016) (alteration
in original) (quoting State v. Jenkins, 178 N.J. 347, 361 (2004)).
"[A] defendant is entitled to a charge on a lesser included
offense supported by the evidence," State v. Short, 131 N.J. 47,
53 (1993), and a trial judge "has an independent obligation to
instruct on lesser-included charges when the facts adduced at
trial clearly indicate that a jury could convict on the lesser
while acquitting on the greater offense," Jenkins, 178 N.J. at
361; accord Funderburg, 225 N.J. at 81. For the record to clearly
indicate a lesser-included charge is warranted, the evidence must
"jump[] off the page." State v. Denofa, 187 N.J. 24, 42 (2006).
When the evidence at trial indicates that a jury could convict on
a lesser-included charge, such a charge must be given. Jenkins,
17 A-2434-16T3
178 N.J. at 361. However, a trial judge "shall not charge the
jury with respect to an included offense unless there is rational
basis for a verdict convicting the defendant of the included
offense." N.J.S.A. 2C:1-8(e).
Here, defendant argues the court erred by failing to charge
attempted passion/provocation manslaughter, a lesser-included
offense of attempted murder. See State v. Robinson, 136 N.J. 476,
488-89 (1994). There are four elements to passion/provocation
manslaughter: "[1] the provocation must be adequate; [2] the
defendant must not have had time to cool off between the
provocation and the slaying; [3] the provocation must have actually
impassioned the defendant; and [4] the defendant must not have
actually cooled off before the slaying." State v. Mauricio, 117
N.J. 402, 411 (1990); accord State v. Carrero, 229 N.J. 118, 129
(2017). "The first two criteria are objective, and the latter two
are subjective." Funderburg, 225 N.J. at 80.
"For a trial court to be required to charge a jury sua sponte
on attempted passion/provocation manslaughter, the court 'must
find first that the two objective elements of [the offense] are
clearly indicated by the evidence.'" Id. at 82 (alteration in
original) (quoting Robinson, 136 N.J. at 491). The subjective
elements are to be determined by the jury. Ibid.18 A-2434-16T3
The first element, the adequacy of the provocation, is
measured by an objective standard: the provocation "must be
'sufficient to arouse the passions of an ordinary [person] beyond
the power of his [or her] control.'" State v. Foglia, 415 N.J.
Super. 106, 126 (App. Div. 2010) (alterations in original) (quoting
Mauricio, 117 N.J. at 412); accord Robinson, 136 N.J. at 491.
Thus, defendant's reason for taking the actions he "did, or as he
claimed []he did, [is] irrelevant because the 'test is purely
objective, [and] the provocation must be "sufficient to arouse the
passions of an ordinary [person] beyond the power of his [or her]
control.'" Foglia, 415 N.J. Super. at 126 (third, fourth and
fifth alterations in original) (quoting Mauricio, 117 N.J. at
412).
Here, there is no objective evidence demonstrating that
Martinez's conduct provided sufficient provocation to arouse the
passions of an ordinary person beyond his or her powers of control.
See ibid. Although "a threat with a gun or knife might constitute
adequate provocation[,]" Mauricio, 117 N.J. at 414, Martinez did
not possess a gun, knife or any other weapon. To the contrary,
the evidence showed Martinez held either a bag of food or his
cellphone in his hand at the time defendant moved his vehicle
toward Martinez. Such conduct does not provide an objective basis
supporting a passion/provocation manslaughter charge. Cf. State
19 A-2434-16T3
v. Powell, 84 N.J. 305, 321-22 (1980) (holding that the defendant's
statement that the victim attempted to wrestle the defendant's gun
away from him during an argument sufficiently established adequate
provocation, even though the defendant had previously given a
different story to the authorities); State v. Bonano, 59 N.J. 515,
523-24 (1971) (holding that a verbal threat alone is insufficient
to reduce the degree of the crime, however, a menacing gesture
with the weapon could properly be considered adequate
provocation); State v. Blanks, 313 N.J. Super. 55, 72 (App. Div.
1998) (holding the history of belligerence and discovery of a
long-handled cooking fork on the floor at the victim's side, was
sufficient to suggest that the victim may have brandished the fork
and further provoked the defendant); State v. Vigilante, 257 N.J.
Super. 296, 301-02, 305-06 (App. Div. 1992) (holding that a prior
history of abuse, threats to kill, and the fact that the victim
"bent down to pick up a pipe wrench" all indicated reasonable
provocation). Here there is no objective evidence establishing
the first element of passion/provocation manslaughter – that the
provocation was adequate – and the court did not err by failing
to charge the jury on the crime as a lesser-included offense.
Funderburg, 225 N.J. at 82 (holding that a trial court is required
to sua sponte charge passion/provocation manslaughter only where
20 A-2434-16T3
the two objective elements of the offense are clearly indicated
in the evidence).
Defendant also contends the court was obligated to charge
passion/provocation manslaughter based on the concept of imperfect
self-defense. We disagree.
Imperfect self-defense does not satisfy the required
objective elements of passion/provocation manslaughter because,
by definition, it is "no more than an honest subjective belief on
the part of [a defendant] that his or her actions were necessary
for his or her safety, even though an objective appraisal by
reasonable people would have revealed not only that the actions
were unnecessary, but also that the belief was unreasonable."
State v. O'Carroll, 385 N.J. Super. 211, 237 (App. Div. 2006)
(quoting State v. Bowens, 108 N.J. 622, 628 (1987)); see also
State v. Bass, 224 N.J. 285, 309 n.6 (2016) (defining the "concept
of 'imperfect self-defense'" as "the defendant's subjective, yet
unreasonable, belief that his or her safety is endangered").
Defendant's alleged subjective and unreasonable belief that force
was required, upon which his imperfect self-defense claim is based,
is wholly inconsistent with the objective standard required to
prove the adequacy of the provocation element of
passion/provocation manslaughter.
21 A-2434-16T3
Defendant appears to contend that evidence showing imperfect
self-defense required an instruction on passion/provocation
manslaughter because it established an element of the offense,
adequacy of provocation, which the objective evidence otherwise
failed to demonstrate. However, evidence of imperfect self-
defense does not prove an element of a criminal offense. As the
Court explained in State v. Williams, 168 N.J. 323, 334 (2001),
self-defense is an affirmative defense under the New Jersey Code
of Criminal Justice, see N.J.S.A. 2C:3-4, which "can excuse a
defendant from responsibility for a crime that the State has proved
against him only if certain statutory requirements [under N.J.S.A.
2C:3-4] are met." In order to satisfy the statutory requirements
for self-defense, a defendant must "honestly and reasonably
believe[] that the use of defensive force was necessary."5
Williams, 168 N.J. at 334.
Imperfect self-defense is not recognized under the Code,
State v. Pridgen, 245 N.J. Super. 239, 246 (App. Div. 1991), and
is deemed "imperfect" because it does not satisfy the requirements
of N.J.S.A. 2C:3-4, Williams, 168 N.J. at 334. "Thus, if a
defendant was not reasonable in believing in the need to use
defensive force, he [or she] could not invoke the affirmative
5
Here, the court instructed the jury on the elements of self-
defense.
22 A-2434-16T3
defense of justification because [the] evidence would be
'imperfect' for that purpose." Ibid. However, the evidence may
be "used for another purpose for which the Legislature had not
established both the honest and reasonable requirements[,]" such
as demonstrating that the State failed to prove the "mental
element" of a charged offense. Id. at 334-35; see also Bowens,
108 N.J. at 636 (finding the defendant was not entitled to an
imperfect self-defense charge, but was entitled to an instruction
that the jury consider evidence that he had an "honest, if not
reasonable, belief in the necessity of force," because the evidence
was relevant to whether the State proved "he acted purposely or
knowingly"). Evidence of imperfect self-defense therefore
supports "a failure of proof defense[.]" Williams, 168 N.J. at
333; see also id. at 335 (finding evidence of imperfect self-
defense is admissible "as bearing on the State's proof of the
mental element" of an offense).
We are therefore convinced there is no merit to defendant's
contention that the court erred by failing to sua sponte charge
the jury on the lesser–included offense of passion/provocation
6
manslaughter based on the concept of imperfect self-defense.
6
Because we reverse on other grounds, we offer no opinion as to
the lesser-included offenses that should be charged in defendant's
retrial. That determination must abide by the evidence introduced
at the retrial.
23 A-2434-16T3
IV.
Defendant argues the court erred by overruling his objection
to Conover's testimony describing the movement of defendant's
vehicle, the manner in which Martinez was struck by defendant's
vehicle, and the ensuing collision between defendant and
Martinez's vehicles. Defendant contends Conover's testimony
constituted an inadmissible expert opinion, the State did not
provide an expert report prior to trial, and the court failed to
provide the jury with an expert opinion instruction concerning
Conover's testimony. The State argues the court did not commit
error because Conover's testimony constituted a permissible lay
opinion under N.J.R.E. 701.
Defendant objected to Conover's testimony, and we therefore
review the court's admission of the testimony under the harmless
error standard, R. 2:10-2, which requires that we determine if
there is "some degree of possibility that [the error] led to an
unjust" result. State v. R.B., 183 N.J. 308, 330 (2005)
(alteration in original) (quoting State v. Bankston, 63 N.J. 263,
273 (1973)). To require reversal, "[t]he possibility must be
real, one sufficient to raise a reasonable doubt as to whether
[it] led the jury to a verdict it otherwise might not have
reached." Ibid. (second alteration in original) (quoting
Bankston, 63 N.J. at 273).
24 A-2434-16T3
"[T]he decision to admit or exclude evidence is one firmly
entrusted to the trial court's discretion." Estate of Hanges v.
Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 383-84 (2010); see
also State v. Zola, 112 N.J. 384, 414 (1988) ("The necessity for,
or propriety of, the admission of expert testimony, and the
competence of such testimony, are judgments within the discretion
of the trial court."). When the trial court applies the wrong
legal test when analyzing admissibility, we review the issue de
novo. Konop v. Rosen, 425 N.J. Super. 391, 401 (App. Div. 2012).
Lay opinion testimony is governed by N.J.R.E. 701:
If a witness is not testifying as an expert,
the witness' testimony in the form of opinions
or inferences may be admitted if it (a) is
rationally based on the perception of the
witness and (b) will assist in understanding
the witness' testimony or in determining a
fact in issue.
The witness's perception must "rest[] on the acquisition of
knowledge through use of one's sense of touch, taste, sight, smell
or hearing." State v. McLean, 205 N.J. 438, 457 (2011) (citations
omitted). Lay opinions may not "intrude on the province of the
jury by offering, in the guise of opinions, views on the meaning
of facts that the jury is fully able to sort out . . . [or] express
a view on the ultimate question of guilt or innocence." Id. at
461.
25 A-2434-16T3
Permissible lay opinion testimony may describe a vehicle's
speed, based on seeing or hearing it; and a person's intoxication,
based on seeing, hearing, and smelling the person. Id. at 457(citations omitted). Police officers may also offer lay opinions
on such subjects as a person's narcotics intoxication, ibid.(citing State v. Bealor, 187 N.J. 574, 588-89 (2006)), the point
of impact between vehicles involved in a collision, id. at 459
(citing State v. LaBrutto, 114 N.J. 187, 197-99 (1989)), and
whether an area was a "high crime area", ibid. (citing Trentacost
v. Brussel, 164 N.J. Super. 9, 19-20 (App. Div. 1978), aff'd, 82
N.J. 214 (1980)).
The admissibility of lay opinion testimony of police
officers, however, "has been, as it must be, firmly rooted in the
personal observations and perceptions of the lay witness in the
traditional meaning of . . . [N.J.R.E] 701." Ibid. "[U]nlike
expert opinions, lay opinion testimony is limited to what was
directly perceived by the witness and may not rest on otherwise
inadmissible hearsay." Id. at 460; see also N.J.R.E. 602 ("Except
as otherwise provided by Rule 703 (bases of opinion testimony by
experts), a witness may not testify to a matter unless evidence
is introduced sufficient to support a finding that the witness has
personal knowledge of the matter.").
26 A-2434-16T3
In addition, "testimony in the form of opinion, whether
offered by a lay or an expert witness, is only permitted if it
will assist the jury in performing its function." McLean, 205
N.J. at 462. A witness is not permitted "to offer a lay opinion
on a matter 'not within [the witness's] direct ken . . . and as
to which the jury is as competent as he to form a conclusion[.]'"
Id. at 459 (alteration in original) (quoting Brindley v. Firemen's
Ins. Co., 35 N.J. Super. 1, 8 (App. Div. 1955)). For example, in
McLean the Court determined a police officer could not properly
offer a lay opinion that the defendant participated in a drug
transaction based on his observations of the defendant's conduct,
because the opinion was "on matters that were not beyond the
understanding of the jury[,]" and constituted "an expression of a
belief in defendant's guilt[.]" Id. at 463.
Expert testimony is governed by N.J.R.E. 702, which provides:
"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 of an opinion or otherwise." To be admissible under
N.J.R.E. 702, the testimony must satisfy three 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
27 A-2434-16T3
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. Kelly, 97 N.J. 178, 208 (1984); see
also State v. Torres, 183 N.J. 554, 567-68
(2005)].
In McLean, the Court concluded "a question that referred to
the officer's training, education and experience, in actuality
called for an impermissible expert opinion." 205 N.J. at 463. In
State v. Kittrell, 279 N.J. Super. 225, 236 (App. Div. 1995), we
similarly held that an officer's testimony about the use of beepers
in drug transactions constituted an expert, and not lay, opinion
because it was based on the officer's extensive experience in
drug-related arrests, and not his personal observations of the
defendant using a beeper.
Applying these principles, we are convinced Conover's
detailed testimony and use of a diagram detailing his beliefs as
to the manner in which the incident occurred constituted putative
expert, and not lay, opinion testimony. Conover testified about
his extensive training and experience in accident investigations
and, although he did not state that his opinions were founded on
that training and experience, it is clear that they were.
Otherwise, there was no need for the State to elicit testimony
28 A-2434-16T3
concerning his extensive experience as a prelude to his opinion
about how the incident occurred.
Moreover, his opinions were not based on his perceptions of
defendant's and Martinez's actions because he was not present when
the incident occurred. Indeed, his opinion was based on
inadmissible hearsay information clearly obtained from others. He
testified as to the original position of defendant's vehicle in
the driveway, its movement out of the driveway, and the manner in
which it struck a sign, a tree, and then "right after that" struck
Martinez's vehicle and pushed it ten feet, even though he was not
present. Although Conover relied on measurements and
observations, his testimony described Martinez's movements, the
movements of defendant and Martinez's vehicles, and the precise
manner in which he "believed" the incident resulting in Martinez's
injuries occurred. His testimony reconstructing the incident was
not "firmly rooted in [his] personal observations and
perceptions[,]" McLean, 205 N.J. at 459, was in part based on
inadmissible hearsay, id. at 460.
Conover's testimony constituted inadmissible expert testimony
because he was not qualified as an expert witness at trial. See
State v. Odom, 116 N.J. 65, 71 (1989) (noting expert witnesses
must "be suitably qualified and possessed of sufficient
specialized knowledge" to offer opinion testimony). Moreover,
29 A-2434-16T3
Conover testified without providing an expert report. See R.
3:13-3(b)(1)(I) (requiring that the State provide a defendant with
an expert report or "statement of the facts and opinions to which
an expert is expected to testify" prior to trial); see also
LaBrutto, 114 N.J. at 205-06 (explaining the standards for
exclusion of expert testimony where the State fails to provide an
expert report). In addition, because the court incorrectly
concluded Conover's testimony constituted an admissible lay
opinion, it failed to instruct the jury that it was required to
consider Conover's opinions in accordance with the standards for
expert testimony. See Model Jury Charge (Criminal), "Expert
Testimony" (rev. Nov. 10, 2003)
The determination of whether an erroneous admission of
opinion testimony is "'clearly capable of producing an unjust
result,' R. 2:10-2, or that the error 'led the jury to a verdict
it otherwise might not have reached,'" is "made in the context of
the entire record." State v. Sowell, 213 N.J. 89, 107-08 (2013)
(internal citation omitted).
In many respects, the facts surrounding the incident were not
disputed. Defendant admitted he operated his vehicle and caused
Martinez's injuries. However, he denied doing so purposely or
knowingly, and rested his defense on the claim that the incident
was the result of either self-defense or simply an accident. Thus
30 A-2434-16T3
the focus of the trial, and the fulcrum upon which defendant's
guilt on the attempted murder, aggravated assault and weapons
offenses turned, was defendant's state of mind as his car struck
Martinez.
The admission of Conover's testimony raises a reasonable
doubt as to whether it "led the jury to a verdict it otherwise
might not have reached." R.B., 183 N.J. at 330. We are therefore
constrained to reverse defendant's convictions and remand for a
new trial. Conover's testimony was cloaked in his extensive
experience and training. See State v. Cain, 224 N.J. 410, 427
(2016) (observing that expert testimony from a law enforcement
officer with superior knowledge and experience "likely will have
a profound influence on deliberations of the jury"). His opinion
detailing the precise manner in which defendant operated his
vehicle - by striking a sign, a tree, and then Martinez and his
vehicle, and moving Martinez's vehicle ten feet – provided strong
and seemingly objective evidence defendant drove his vehicle
purposely and knowingly to kill or injure Martinez. Indeed, in
the prosecutor's summation, she relied on Conover's testimony and
his diagram of the incident to support the State's claim defendant
intended to kill Martinez. In sum, Conover's opinion testimony
provided affirmative evidence concerning defendant's state of mind
and undermined defendant's version of the incident. In our view,
31 A-2434-16T3
it was evidence that may have led the jury to a verdict it may not
have otherwise reached.
Because we reverse and remand for a new trial, it is
unnecessary that we address defendant's contention the court erred
in imposing sentence.
Reversed and remanded. We do not retain jurisdiction.
32 A-2434-16T3