State v. Russo

• Decision Date: 24 August 1990
• Citation: 243 N.J.Super. 383,579 A.2d 834
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. David RUSSO, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 383

243 N.J.Super. 383

579 A.2d 834

STATE of New Jersey, Plaintiff-Respondent, v. David RUSSO, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Argued June 4, 1990.

Decided Aug. 24, 1990.

Roy B. Greenman, Designated Counsel, for appellant (Wilfredo Caraballo, Public Defender, atty.; Roy B. Greenman and Arnold I. Budin, Designated Counsel, of counsel and on the brief).

Cherrie Madden Black, Deputy Atty. Gen., for respondent (Robert J. Del Tufo, Atty. Gen., atty.; Cherrie Madden Black, of counsel and on the brief).

Before Judges J.H. COLEMAN, MUIR, Jr. and SKILLMAN.

The opinion of the court was delivered by

SKILLMAN, J.A.D.

Defendant was convicted by a jury in a capital trial of purposeful and knowing murder, capital murder and felony murder, in violation of N.J.S.A. 2C:11-3a(1), 2C:11-3a(2) and 2C:11-3a(3); armed robbery, in violation of N.J.S.A. 2C:15-1; two counts of attempted murder, in violation of N.J.S.A. 2C:5-1 and 2C:11-3; possession of a handgun for an unlawful purpose, in violation of N.J.S.A. 2C:39-4a; two counts of second-degree aggravated assault, in violation of N.J.S.A. 2C:12-1b(1); and two counts of third-degree aggravated assault, in violation of N.J.S.A. 2C:12-1b(2). ¹ Defendant also was acquitted of a charge of possession of a handgun without a permit, in violation of N.J.S.A. 2C:58-4. The jury was unable to agree upon a death penalty verdict. At sentencing, the court merged the knowing and purposeful murder and the felony murder convictions into the capital murder conviction and also merged the convictions for third degree aggravated assault into the convictions for second degree aggravated assault. After these mergers, the court sentenced defendant to a life term, with 30 years of parole ineligibility for murder, 20 years, with ten years of parole ineligibility, on both counts of attempted murder, ten years, with five years of parole ineligibility on both counts of second-degree aggravated assault, ten years, with five years of parole ineligibility for armed robbery, and seven years, with three years of parole ineligibility, for unlawful possession of a weapon. The sentences for murder and armed robbery, one count of attempted murder and one count of aggravated assault were made consecutive, with the other sentences to be served concurrently. Therefore, the aggregate sentence imposed on defendant was life plus 40 years, with 50 years of parole ineligibility.

The offenses for which defendant was convicted were committed on March 7, 1985 at Petteti Motors, a gas and automobile repair station located in Swedesboro, a small Gloucester County community. Defendant had been at the gas station a week or two earlier, when his car was towed there after breaking down on the New Jersey Turnpike. On that occasion he talked to two of the victims, Joseph Iovanisci and Dino Rossi, while he was filling out paperwork regarding his car and saw them process the gas station's receipts before closing for the evening.

Iovanisci and Rossi were also working when defendant returned to the gas station around 7 p.m. on March 7th. Defendant said that he was meeting someone at a local bar at 7:30 p.m. and that he had stopped by the gas station on his way. Defendant again engaged both Rossi and Iovanisci in casual conversation. Near the time for closing, the third victim, Ann Kiley, arrived to offer Rossi a ride after work. As Rossi was processing the gas station's receipts, defendant suddenly brandished a nine millimeter handgun and told him that this was a "stick up." Defendant then ordered the victims to walk from the office to the parts room of the gas station and to lie on the floor. After the three victims lay down, defendant began firing his gun at point blank range killing Iovanisci and inflicting serious brain damage on Kiley. Miraculously, Rossi, although shot twice, was not seriously injured.

Based on the gas station's towing records, defendant was quickly apprehended. Defendant provided the police with an oral statement, which was tape recorded, that essentially constituted a confession to the crime and also told the police where they could find the murder weapon as well as various other evidence.

At trial defendant relied on the defenses of diminished capacity and voluntary intoxication. In finding him guilty of purposeful and knowing murder, the jury evidently rejected both defenses.

On appeal, defendant makes the following arguments:

I. THE COURT DENIED THE DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL IN CONDUCTING A RULE 8 HEARING ON THE ISSUES OF DIMINISHED CAPACITY IN WHICH HE REQUIRED THE DEFENSE TO CONVINCE THE COURT BY A PREPONDERANCE OF THE EVIDENCE THAT THE CONDITION EXISTED OR THAT IT NEGATED AN ESSENTIAL ELEMENT OF THE OFFENSE.

II. THE COURT SHOULD HAVE CHARGED THE LESSER INCLUDED OFFENSES OF AGGRAVATED MANSLAUGHTER AND MANSLAUGHTER.

III. THE COURT'S CHARGE ON THE DEFENSE OF INTOXICATION WAS IMPROPER AND MISLEADING DENYING THE DEFENDANT A FAIR TRIAL.

IV. THE COURT DENIED THE DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO REPRESENT HIMSELF AT TRIAL.

V. THE DEFENDANT'S CONSTITUTIONAL RIGHT TO DUE PROCESS AND A FAIR TRIAL WERE VIOLATED.

VI. THE PROSECUTOR'S CONDUCT DURING THE TRIAL WAS GROSSLY IMPROPER WARRANTING A NEW TRIAL.

VII. THE TRIAL COURT, BY CERTAIN OF ITS RULINGS, INDICATED A BIAS AGAINST THE DEFENSE, AND DENIED THE DEFENDANT OF HIS RIGHT TO A FAIR TRIAL.

VIII. THE DEATH QUALIFICATION OF THE JURY IN THE CASE SUB JUDICE RESULTED IN A JURY WITH A DISPROPORTIONATE UNDERREPRESENTATION OF BLACKS AND WOMEN.

IX. THE COURT FAILED TO EXCUSE FOR CAUSE A NUMBER OF JURORS DURING VOIR DIRE.

X. THE COURT'S VOIR DIRE OF PROSPECTIVE JURORS WHO WERE IN FAVOR OF THE DEATH PENALTY WAS INADEQUATE IN THAT IT FAILED TO IDENTIFY JURORS WHOSE VIEWS IN FAVOR OF THE DEATH PENALTY WOULD SUBSTANTIALLY IMPAIR THEIR ABILITY TO GIVE A DEFENDANT A FAIR TRIAL.

XI. THE COURT ABUSED ITS DISCRETION IN ALLOWING THE JURY TO VIEW A 31 MINUTE VIDEOTAPE OF THE CRIME SCENE WHICH DEPICTED THE VICTIMS IN A GRUESOME AND SHOCKING WAY.

XII. THE SENTENCE IMPOSED ON THE DEFENDANT WAS EXCESSIVE UNDER THE CIRCUMSTANCES.

We reject defendant's arguments addressed to the conduct of the trial and affirm his convictions. However, we conclude that the trial court erred in failing to merge defendant's convictions for second degree aggravated assault with his convictions for attempted murder. We also conclude that the court erred in imposing a 20 year term of imprisonment, with ten years of parole ineligibility, on defendant's convictions for attempted murder, which was a second degree offense when these offenses were committed. Therefore, we modify defendant's sentence so as to impose an aggregate term of life imprisonment plus 20 years imprisonment, with 40 years of parole ineligibility.

The only arguments made by defendant which require discussion are Points I, III, IV, VI and XII. Defendant's other points are clearly without merit. See R. 2:11-3(e)(2).

I

Defendant argues that the trial court improperly excluded his proposed expert testimony regarding the mental diseases of personality disorder and depression.

N.J.S.A. 2C:4-2 provides in pertinent part 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.... Mental disease or defect is an affirmative defense which must be proved by a preponderance of the evidence.

In State v. Breakiron, 210 N.J.Super. 442, 449, 510 A.2d 80 (App.Div.1986), a majority of this court held that evidence of a mental disease or defect is only admissible under N.J.S.A. 2C:4-2 if the trial judge is "persuaded by a preponderance of the evidence that the defendant suffered from a 'mental disease or defect which would negate a state of mind which is an element of the offense.' " However, the Supreme Court reversed this holding in State v. Breakiron, 108 N.J. 591, 532 A.2d 199 (1987), concluding that a defendant does not have to persuade the trial judge by a preponderance of the evidence that a mental disease or condition exists. Rather, for evidence of a mental disease or defect to be admissible, a defendant only need make a preliminary showing that "(1) that the condition he purports to establish is relevant to his ability to have formed the requisite criminal mental state; (2) that the medical theory underlying the effect of the condition upon the relevant mental state is generally accepted within the scientific community; and (3) that the evidence defendant plans to adduce is relevant to show the existence of the condition." Id. at 619, 532 A.2d 199.

Defendant's trial was held subsequent to the issuance of our opinion in Breakiron on May 22, 1986, but before the issuance of the Supreme Court's opinion on October 29, 1987. Consequently, the trial court applied a "preponderance of the evidence" standard in deciding whether defendant's evidence of the mental diseases of personality disorder and depression was admissible. Although the application of this standard was error, we conclude that this error was harmless because the evidence of the mental diseases of personality disorder and depression proffered by defendant would not have been admissible even under the standards of admissibility set forth in the Supreme Court's opinion in Breakiron.

Defendant offered testimony by two experts, Dr. David Bogacki, a clinical psychologist, and Dr. Kenneth Weiss, a psychiatrist, in support of his diminished capacity defense.

At a Rule 8 hearing regarding the admissibility of evidence of mental disease, Dr. Bogacki testified that defendant suffers from a depressive disorder, a personality disorder and polysubstance abuse. He further testified that "the combination of depression and polysubstance abuse" made it "very likely" that defendant would "act out his emotions physically." Moreover, "he was likely to behave...