State v. McBrideState v. McBride
Defendant has appealed from convictions on two counts of second degree aggravated assault,
Defendant opposed the consolidation of the trials and twice moved unsuccessfully for a severance. Defendant‘s family had provided funds for private counsel concerning the June 30, 1982 and March 15, 1983 incidents embodied in one indictment; the Public Defender was assigned to represent defendant as to the May 10th and May 20th incidents described in the other. As a result of the consolidation, defendant was, therefore, represented by two attorneys at the trial. The trial judge ruled that although both could participate and question each witness, neither would be permitted to “cross-examine” (in the sense of asking leading questions on direct examination) of the other‘s witnesses. Defendant‘s motion to dismiss the indictment based upon the May 10th and 20th, 1982 attacks, based solely upon hearsay testimony before the grand jury, was denied by the court, as was defendant‘s motion to bar questioning concerning his 1964 atrocious assault conviction, 1979 involuntary manslaughter
The victim of the alleged attacks and threats was defendant‘s wife. They had been married less than four and one-half months prior to the May 10, 1982 incident. At that time, defendant was angered because his wife had received in her maiden name, an award as “Outstanding Mother of the Year” from her church. He allegedly beat defendant later that evening as they returned from a political affair in Newark. Although she attempted to escape, defendant drove them home and locked the victim in their house. She found a key, ran to a neighbor and then was taken to Beth Israel Hospital where police were summoned. The victim sustained a laceration over her eye, bruising and swelling of her hands and knees, and head trauma. She was released from the hospital the next day and no arrest was made.
On May 19-20, 1982 the McBrides attended an election meeting after which they, with her minister and another woman went to the McBride house for cocktails. The couple argued vehemently. The guests attempted to intervene, and the victim fled into the street with defendant in pursuit. He caught her and brought her back to the house and allegedly stated “I missed you last time — I‘m going to kill you this time.” Defendant was arrested and released on bail.
On June 30, 1982 the victim was home alone when the living room window was smashed, setting off the burglar alarm which in turn cut off the telephone line. She went downstairs, and found herself confronting defendant. After a struggle, the
After the victim‘s release from the hospital, she resumed living with her husband, allegedly without memory of who had assaulted her on June 30, 1982. When in January 1983, the grand jury initially returned an indictment concerning the May 10th and May 20th, 1982 incidents, she requested that the indictment be dismissed, since she and her husband had reconciled. She refused to testify before the grand jury on this indictment, and, in fact, signed a power-of-attorney in favor of her husband during this period. Furthermore, she filed a claim with the Violent Crime Compensation Board concerning the June 30, 1982 incident, contending that the perpetrator was unknown.
On March 15, 1983 defendant allegedly again threatened to injure his wife. A day or two later she claims to have fallen down a staircase bumping her head, after which she had a “flashback” and regained the memory of the June 30, 1982 incident. She did not seek treatment for this accident. She brought charges against defendant for the June 30th incident and reactivated her complaint based upon the May 10th and
Defendant has through counsel submitted six points on this appeal:
POINT I
Denial of defendant‘s motion to sever the indictments for purposes of trial constituted an abuse of the discretion reposing in the trial court, and constituted prejudice to the defendant‘s right to a fair trial and his right to counsel.
POINT II
The trial court abused its discretion in ruling that defendant‘s prior convictions could be used to impeach him.
POINT III
The trial court improperly forbade defendant‘s counsel from cross examining the State‘s expert witnesses by referring to the report of another expert, upon whom he had relied in forming his opinion.
POINT IV
The defendant was denied the effective assistance of counsel.
POINT V
The trial judge should have disqualified himself, since he knew the victim, and the court‘s conduct during the trial was inappropriate and denied the defendant the right to a fair trial.
POINT VI Assuming arguendo that the individual errors do not constitute reversible error, the errors aggregately denied the defendant a fair trial.
In a pro se supplemental brief he raises four additional issues:
POINT I
An indictment presented to the grand jury based on hearsay testimony and double hearsay, recanted hearsay testimony is a patiently [sic] defective legal document.
POINT II
Prosecutor‘s remarks during pre-trial hearings, trial, summation and sentencing phase were prejudicial and trial judge failed to deal properly with prosecutor‘s mis-conduct.
POINT III
The contamination affect [sic] of a related news paper article during jury deliberations denied the defendant a fair trial.
POINT IV
In the trial court below the judge charge to the jury was both confusing for the jury as well as prejudicial to the defendant and constituted a violation of due process.
I
Concerning the consolidation and severance issues, the trial judge carefully considered the benefits and detriments inherent in a single or multiple trials. He finally determined that since testimony concerning all of the events most probably would be admitted under Evid.R. 55 whether there were one or two trials, and many of the witnesses would be the same, judicial economy and a lack of prejudice to defendant warranted a consolidated trial. The trial judge was fully cognizant of the problems inherent in defendant‘s being represented by two attorneys, and further having to choose between testifying or not based upon conflicting advice of his attorneys and the quantum of proof against him which related to each indictment. On appeal, defendant argues that the joinder was improper and that defendant was materially hampered in the
The joinder rule, R. 3:7-6, permits two or more offenses to be charged in the same indictment
if the offenses charged are of the same or similar character or are based on the same act or transaction or on 2 or more acts or transactions connected together or constituting parts of a common scheme or plan.
R. 3:15-2(b) grants discretion to a judge to order separate trials of counts in an indictment, a severance of defendants, or other appropriate relief if
it appears that a defendant or the State is prejudiced by a permissible or mandatory joinder of offenses.
Our courts recognize that multiple charges by their very nature suggest a propensity for criminal conduct and are thus potentially harmful to a defendant, but other considerations such as judicial economy must be weighed before a court would require a separate trial for each charge. See State v. Manney, 26 N.J. 362, 368 (1958); State v. Coruzzi, 189 N.J. Super. 273, 297-98 (App.Div.), certif. den. 94 N.J. 531 (1983). The overall consideration for a trial judge is whether the “defendant‘s right to a fair trial remains unprejudiced.” State v. Coleman, 46 N.J. 16, 24 (1965), cert. den. 383 U.S. 950, 86 S.Ct. 1210, 16 L.Ed.2d 212 (1966); State v. Coruzzi, 189 N.J. Super. at 298.
Defendant‘s assertion that he would have testified concerning one of the events but not the others on the basis of his two attorneys’ advice is little different than if he had a single attorney representing him in a multiple count indictment where the attorney would have advised defendant to testify concerning only the one event. Defendant‘s dilemma is also little different from a trial of a single count indictment where the defendant wishes to testify to impeach only one witness‘s testimony or concerning a single fact in the case, but, in doing so, he would open himself either to cross-examination concerning
Defendant‘s dilemma stemmed from his choice to be represented by separate counsel. Although his family advanced the funds for private counsel for the one indictment, defendant apparently qualified for representation by the Public Defender, notwithstanding the flexible criteria for such representation.
Defendant has also couched his argument in terms of the denial of his right to counsel, since the consolidated trials resulted in defendant being forced to choose between the conflicting advice of his two attorneys. A closer examination reveals the fallacy in the reasoning. The attorney representing defendant concerning the May 10th and 20th incidents advised defendant to testify. The attorney for the other charges advised to the contrary. The advice of each apparently was based upon what the situation would have been if the trial related
II
Defendant‘s adult criminal record contains three convictions. The first was in 1964 for atrocious assault and battery, for which defendant received an indeterminate term at Yardville Youth Reception and Correctional Center. He was paroled a year later. In 1971, he was convicted of negligent manslaughter and served 13 months of a two to three-year term at Trenton State Prison before being release on parole. In 1978, he was convicted in the Newark municipal court of possessing marijuana and was fined $60. The trial judge also noted that there were several additional arrests for assaultive-type offenses, as well as two indictments; but these other contacts with the criminal justice system would not be a proper subject of cross-examination, and we assume that they played no part in the court‘s decision. Although the last conviction for an indictable offense was 14 years prior to the trial, the marijuana conviction was but six years prior to the trial. The trial judge, relying on State v. Sands, 76 N.J. 127, 144-147 (1978), interpreting
We find that
III
Defendant correctly notes that the trial court erred in precluding his counsel from examining Dr. Saur concerning Dr. Fox‘s psychological report. The trial judge based his ruling upon
Defendant did not seek to lift the cloak of secrecy as to confidential communications made between the victim and Dr. Fox, but rather to permit Dr. Fox‘s conclusions to be shown to
When Dr. Fox was called as a witness and invoked the psychologist-patient privilege, the court could have applied the standards now articulated in Arena v. Saphier. The judge should have reviewed the report in camera to determine whether the report or any part thereof was discoverable. He could have limited the scope of inquiry in order both to preserve the confidential communications that the victim may have made to her psychologist and to accommodate the defendant‘s need to show the mental condition of the victim, at least insofar as such condition would have been relevant to her credibility on the witness stand and to the weight to be accorded Dr. Saur‘s opinion.
Although there is no question that this evidential ruling was erroneous, we must measure this error against the totality of the trial. We cannot on the record before us determine whether the psychologist‘s report or testimony would have made a
IV
Defendant‘s next point is that he received ineffective assistance of counsel. Under Strickland v. Washington, 466 U.S. 668, 690-694, 104 S.Ct. 2052, 2066-2068, 80 L.Ed.2d 674, 695-698 (1984), defendant was required to demonstrate that the particular acts or omissions of counsel were the results of unreasonable professional judgment and that, but for his attorneys’ unprofessional errors, “the result of the proceeding would have been different.” 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. From our review of this record, there is no hint of such unprofessional conduct on the part of either of defendant‘s attorneys.
The trial judge admitted the report of the Beth Israel Hospital concerning the May 10, 1982 incident.7 The record noted that she was beaten by her husband with his fists. Defense counsel requested that the words “by her husband” be eliminated from the record before it was given to the jury. The court denied this redaction in ruling that the record revealed only statements made to a physician for the purpose of treatment, admissible under Evid.R. 63(12). Defense counsel correctly argued that Cestero v. Ferrara, 57 N.J. 497, 501-02 (1971), required that extraneous statements not relevant to the requested treatment must be removed before the record is given to the jury. In that case, the plaintiff‘s statement that she had proceeded through the intersection when the light changed to green, after which she was hit, was found irrelevant for the purposes of medical treatment. See also State In the Interest of C.A., 201 N.J. Super. 28, 33-34 (App.Div. 1985).
We see this situation here. The fact that the victim was struck by someone‘s fists rather than another object may well have been relevant, but the fact that the attacker had been her husband was not. We find, however, that the improper admission of this reference was harmless error, in view of the other evidence concerning the source of the victim‘s injuries. Her testimony, buttressed by defendant‘s comments in the presence of third-parties who testified as to the May 20th incident, clearly established that defendant was the perpetrator of the May 10th attack.
In the event that the review concerning the psychologist‘s report results in a new trial, this reference in the hospital record should be redacted.
VI
We have reviewed the balance of the points raised by counsel and in the pro se brief. The issues of law raised are clearly
We merely note:
(A). There was no necessity for the trial judge to have disqualified himself, since his prior contact with the victim was so slight as to preclude any legitimate claim of bias.
(B). Since, with the exception of the failure of the court to admit the testimony of the psychologist, which may or may not constitute reversible error, we have found few errors in the trial. The aggregate weight of the alleged errors were clearly incapable of producing an unjust result. R. 2:10-2; State v. Orecchio, 16 N.J. 125, 129 (1954).
(C). A grand jury may indict “largely or wholly based on hearsay testimony.” State v. Thrunk, 157 N.J. Super. 265, 278 (App.Div. 1978); State v. Ferrante, 111 N.J. Super. 299, 304 (App.Div. 1970); see also State v. R.W., 200 N.J. Super. 560, 572 (App.Div. 1985); State v. Stern, 197 N.J. Super. 49, 54 (App.Div. 1984). This is especially so where the grand jury did not require the victim‘s presence for the second proceeding. Compare State v. Costa, 109 N.J. Super. 243, 246-248 (Law Div. 1970), where the State could not explain the absence of a readily available witness.
(D). The various remarks of the prosecutor objected to by defendant, taken in context, appear to be either fair comment on the evidence or reasonable inferences from evidence adduced at trial. State v. Perry, 65 N.J. 45, 48 (1974).
(E). The trial judge properly handled the possible contamination of the jury by an article concerning wife beating which appeared in The Star Ledger on the morning when the judge was to charge the jury. The potentially tainted jurors were held as alternates and did not participate in the deliberation.
(F). Lastly, we see no reversible error in the charge when read as a whole. State v. Wilbely, 63 N.J. 420, 422 (1973).
Remanded for further proceedings; we do not retain jurisdiction.