State v. Kotter

• Decision Date: 28 February 1994
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Gail KOTTER, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 214

271 N.J.Super. 214

638 A.2d 825

STATE of New Jersey, Plaintiff-Respondent, v. Gail KOTTER, Defendant-Appellant.

Superior Court of New Jersey,

Appellate Division.

Submitted Oct. 19, 1993.

Decided Feb. 28, 1994.

Bernard J. Czech, New Brunswick, for appellant (of counsel and on the brief).

Fred DeVesa, Acting Atty. Gen., for respondent (Richard W. Berg, Deputy Atty. Gen., of counsel; William F. Lamb, Sp. Deputy Atty. Gen., on the brief).

Before Judges STERN, KEEFE and NEWMAN.

The opinion of the court was delivered by

STERN, J.A.D.

Defendant was indicted for aggravated manslaughter, N.J.S.A. 2C:11-4(a) (count one); aggravated assault, N.J.S.A. 2C:12-1b(1) (count two); assault by auto, N.J.S.A. 2C:12-1c (count three); aggravated assault, N.J.S.A. 2C:12-1b(2) (count four) and assault by auto, N.J.S.A. 2C:12-1c (count five). Count one dealt with the death of Meryl Wasserman; counts two and three related to Ralph Parillo, and counts four and five concerned Lynncaryl Shafer. Tried to a jury, defendant was convicted on all but the fourth count. As to the third count the jury found defendant caused "serious bodily injury," a fourth degree crime, but on count five it found only "bodily injury," a disorderly persons offense. She was also convicted of drunk driving at the time.

Defendant was sentenced to thirty years with a ten year period of parole ineligibility on count one. Count three was merged into count two and concurrent sentences were imposed on counts two and five. ¹ Defendant appeals and argues:

POINT I THE TRIAL COURT COMMITTED ERROR BY GRANTING THE STATE'S MOTION TO EXCLUDE THE TESTIMONY OF DR. ROTGERS ON THE ISSUE OF DIMINISHED CAPACITY.

POINT II DEFENDANT WAS DENIED A FAIR TRIAL DUE TO THE BIAS AND PREJUDICE OF THE TRIAL JUDGE.

POINT III DEFENDANT WAS DENIED A FAIR TRIAL DUE TO UNCORRECTED COMMENTS ON FLIGHT IN THE STATE'S SUMMATION.

POINT IV THE CHARGE TO THE JURY WAS IN ERROR REGARDING THE CONCEPT OF RECKLESSNESS APPLICABLE TO AGGRAVATED MANSLAUGHTER AND THE LESSER INCLUDED OFFENSES (Plain Error).

POINT V THE CHARGE TO THE JURY WAS IN ERROR REGARDING THE CONCEPT OF RECKLESSNESS APPLICABLE TO AGGRAVATED MANSLAUGHTER AND THE ELEMENT OF KNOWLEDGE OF SPECIFIC EXTENUATING CIRCUMSTANCES (Plain Error).

POINT VI THE CHARGE TO THE JURY WAS IN ERROR REGARDING THE CONCEPT OF RECKLESSNESS APPLICABLE TO AGGRAVATED ASSAULT AND THE ELEMENT OF KNOWLEDGE OF SPECIFIC EXTENUATING CIRCUMSTANCES (Plain Error).

POINT VII DEFENDANT'S SENTENCE WAS MANIFESTLY EXCESSIVE AND WAS AN ABUSE OF THE TRIAL COURT'S DISCRETION.

Our careful review of the record satisfies us that the issues raised are without merit and do not warrant discussion except as hereinafter stated, R. 2:11-3(e)(2). We reach our conclusion in light of the overwhelming, and essentially uncontested, proofs that defendant caused the accident and injuries for which she was indicted.

On August 1, 1989, at approximately 4:10 p.m., defendant struck and killed Meryl Wasserman, then fifteen years old, who was standing on the side of the road with her bicycle picking flowers. After striking Ms. Wasserman, the pickup truck defendant was driving returned to the road, and crossed the roadway into oncoming traffic, where it struck the vehicles in which the other victims were riding. The vehicle travelled about 500 feet before coming to a stop. Defendant was found to have had a blood alcohol reading of .17 shortly after the accident, together with .63 micrograms of prozac and .16 micrograms of xanax per milliliter of blood.

The principal issue on this appeal flows from the trial judge's ruling that defendant could not offer the testimony of a psychologist, Dr. Frederick Rotgers, in support of a diminished capacity defense. The judge concluded that the essence of testimony, proffered through Dr. Rotgers at an Evid.R. 8 hearing, was relevant only to the defense of intoxication which could only excuse crimes requiring purposeful or knowing conduct. See N.J.S.A. 2C:2-8b. As defendant was charged only with crimes requiring reckless culpability, ² the judge determined that defendant could not introduce the evidence in support of a diminished capacity "defense" under N.J.S.A. 2C:4-2. That provision of the Code of Criminal Justice provided at the time of trial, as it does now, that:

Evidence that the defendant suffered from a mental disease or defect is admissible whenever it is relevant to prove that the defendant did not have a state of mind which is an element of the offense. In the absence of such evidence, it may be presumed that the defendant had no mental disease or defect which would negate a state of mind which is an element of the offense.

During trial defendant's treating psychiatrist, Dr. John Robert Blake, testified for the State ³ that prior to the accident he had diagnosed defendant "as having panic disorders with agoraphobia." He prescribed xanax for the condition. The doctor "added a diagnosis of alcohol abuse" when he discovered defendant "abuse[d]" alcohol. The doctor told defendant not to mix alcohol with medication. According to Dr. Blake, the combination of xanax and alcohol "affect[s] the brain in a dramatically more marked way than either one of the substances would on their own," and he was sure from discussions with defendant that "she was aware that alcohol would exacerbate and make the use of her medications very dangerous." He gave defendant "warnings ... that mixing the medications with alcohol can be potentially dangerous and is really forbidden." Nevertheless, defendant "denied that she was drinking alcohol in a way that was a problem." The doctor endeavored to develop a treatment plan which took the impact of defendant's alcoholism into account and commenced to introduce prozac in lieu of xanax. Nevertheless, defendant remained on xanax which "multipl[ied] the [negative] effect of [the] alcohol" in affecting her judgment and put her "at higher risk for engaging in dangerous activities." On the other hand, according to Dr. Blake, defendant was "able to perceive risks and consciously disregard them," suffered no disorder that affected the "higher functioning part of her brain" and could "assess her own behavior and appreciate the consequences."

Defendant presented Dr. Rotgers, a clinical psychologist, at an Evid.R. 8 hearing. ⁴ Rotgers concluded that based on his "evaluation of her" and defendant's blood alcohol and medication levels at the time of the accident, defendant was "severely cognitively impaired at the time by virtue of being intoxicated, highly intoxicated with alcohol and alprazolam, which is the prescription drug Xanax." He noted she also had prozac in her system and, as a result of the combination, was "severely, severely cognitively impaired." Dr. Rotgers noted that the blood alcohol reading of .17 was "very high in and of itself, and in combination with the Xanax ..., the level of impairment was far beyond what it would have been simply had she been intoxicated with alcohol" and was equivalent to a .20 or .25.

Dr. Rotgers explained that "because of the combination of alcohol and Xanax" defendant suffered from "tunnel vision," and in that condition "she was just unable to think about what the risks might have been." The doctor further stated that the "synergistic effect" of the combination of alcohol and xanax prevented defendant from perceiving the risk of driving in her "highly intoxicated" state and consciously avoiding it. In response to a question from the judge at the end of the hearing, Dr. Rotgers also noted that "but for the panic attack--panic disorder and agoraphobia, [defendant] wouldn't have been drinking." He stated that drinking was defendant's way of "reliev[ing] the pressure of" her agoraphobia and panic disorder and that she found the combination of alcohol and xanax "dampened the anxiety" more than xanax alone.

Dr. Rotgers acknowledged, however, that defendant "implemented" that remedy "on her own." He further explained that because defendant was "alcohol dependent" her drinking began "to get out of control" and she was unable to stop, although she perceived the drinking "subjectively as [having] a therapeutic effect." In summary, Dr. Rotgers testified that defendant was "highly intoxicated" and based on the aggregate of facts and conditions was "severely impaired" at the time of the accident. But he was not certain whether this impairment met the "legal criterion for diminished capacity."

Defendant first contends that the convictions must be reversed because Dr. Rotgers' testimony was excluded and the defendant was precluded from asserting a diminished capacity defense. Defendant contends that although defendant's panic disorder and agoraphobia did not alone constitute mental disease or defect which negated the requisite culpability, the combination of defendant's ingestion of xanax, prozac and alcohol taken to combat her medical condition was of such a nature that it rendered her incapable of perceiving the risk of driving in her "highly intoxicated" state, which precipitated the accident that resulted in Meryl Wasserman's death. Specifically, defendant argues:

In summary and paraphrased, Dr. Rotgers testified that the combination of diagnosed conditions caused defendant to consume Xanax, Prozac and Alcohol on August 1, 1989, further the conditions and substances in combination negated defendant's cognitive abilities prior to her deciding to drive the motor vehicle, the operation of which in turn caused the death of Meryl Wasserman. Dr. Rotgers held firm to a totality of conditions and circumstances analysis in support of his expert opinion that Gail Kotter's cognitive abilities to assess risk, evaluate her ability to drive and in fact perform the activities necessary to drive a motor vehicle were grossly impaired. He refused the [c]ourt's urging to isolate the cause and effect to a singular mental condition.

We will assume that defendant's contentions are directed to the other...