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

NOT FOR PUBLICATION WITHOUT THE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