State v. Burr

948 A.2d 627, 195 N.J. 119, 2008 N.J. LEXIS 606
CourtSupreme Court of New Jersey
DecidedJune 11, 2008
DocketA-36 September Term 2007
StatusPublished
Cited by79 cases

This text of 948 A.2d 627 (State v. Burr) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Burr, 948 A.2d 627, 195 N.J. 119, 2008 N.J. LEXIS 606 (N.J. 2008).

Opinion

Justice LaVECCHIA

delivered the opinion of the Court.

A jury convicted defendant, Franklin Jack Burr II, of second-degree sexual assault, N.J.S.A. 2C:14-2(b), and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a), 1 based on *123 allegations that he had touched inappropriately a young female student while teaching her piano. On appeal, defendant argued that his ability to defend against the charges was impaired because he was not permitted to introduce testimony from a medical expert who diagnosed him with Asperger’s Disorder. 2 Defendant had wanted the expert to educate the jury about the disorder’s traits and to provide it with a better understanding of defendant’s unusual and, at times, odd demeanor and mannerisms, as well as his difficulty with interpersonal dealings. The Appellate Division agreed that the preclusion of that evidence constituted reversible error and vacated defendant’s convictions. State v. Burr, 392 N.J.Super. 538, 560, 921 A.2d 1135 (2007). The Appellate Division also found error in the trial court’s handling of the jury’s request to have replayed for it, during deliberations, a videotaped pretrial interview of the child victim. Id. at 575-76, 921 A.2d 1135. In light of its reversal on other grounds, the panel did not address whether that separate error would have required reversal. Id. at 576, 921 A.2d 1135. We granted the State’s petition for certification on both issues. 192 N.J. 478, 932 A.2d 28 (2007).

In our view, the evidentiary ruling on the Asperger’s Disorder testimony denied defendant access to evidence that was relevant and material to his explanation of himself and his conduct. The resultant harm to defendant was palpable, even from the vantage point of appellate review of a cold record. We agree with the Appellate Division’s assessment that the preclusion of this evidence was capable of impacting the jury verdict and that it was a *124 factor in defendant’s decision not to testify at trial. For substantially all these reasons that were set forth in Judge Weissbard’s thorough and thoughtful opinion, we hold that the preclusion of the expert testimony constituted reversible error necessitating a new trial. We address separately the videotape replay issue and modify the instructions of the Appellate Division in the event that the issue recurs during retrial.

I.

There is an unusual procedural history to the expert testimony evidentiary ruling at issue in this appeal. 3 Before the trial in this matter commenced, the trial court referred defendant to the Ann Klein Forensic Center for a competency evaluation when concerns arose over defendant’s odd appearance and demeanor during a pretrial proceeding. While that referral took place, defense counsel had defendant evaluated by Dr. Richard Kleinmann, a psychiatrist. Dr. Kleinmann’s evaluation led to a preliminary diagnosis of Asperger’s Disorder, which was set forth in a report that was used in connection with a bail hearing. However, the diagnosis and report triggered a desire on defendant’s part to introduce Dr. Kleinmann’s testimony at trial. Dr. Kleinmann’s testimony would include a discussion on the Asperger’s diagnosis and characteristics of the disorder, as described in his report. Dr. Kleinmann also would testify about the serious difficulties in social interaction, as well as the odd, even bizarre, actions and mannerisms that can be common to persons who have the disorder.

The State moved in limine to preclude that expert testimony. Defense counsel urged the court to allow the testimony so defen *125 dant could “show the jury a full picture of what it is that [he] is suffering from and why he may make inappropriate social judgments, not criminal judgments, but inappropriate social judgments.” Although defendant never argued that the Asperger’s Disorder evidence was intended to advance a diminished capacity defense, the trial court granted the State’s motion to bar the testimony because it found that the testimony did not tend to prove that defendant had a mental defect that prevented him from understanding his actions. See N.J.S.A. 2C:4-2 (allowing admission of evidence of “mental disease or defect ... whenever it is relevant to prove that the defendant did not have a state of mind which is an element of the offense”).

The trial then proceeded, during which the alleged victim, A.A., 4 who took piano lessons from defendant, testified that, on numerous occasions, defendant touched her “private parts” over her clothes. She also testified that defendant often pulled her onto his lap, although he did not touch her inappropriately at those times. Three other witnesses confirmed that defendant allowed children to sit on his lap. During summation, the prosecutor argued that defendant’s purpose for allowing A.A. to sit on his lap was to “groom” her for sexual assault by making her feel comfortable when being held by him in a compromising position.

After the jury found defendant guilty of second-degree sexual assault, 2C:14-2(b), and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a), defendant appealed. The appellate panel initially issued an unpublished opinion that concluded that the record was inadequate to address the expert’s report and Asperger’s Disorder issue. Because Dr. Kleinmann’s report had been used only in connection with the bail hearing, the report’s author had not been subjected to cross-examination. Accordingly, the panel ordered a remand for a Rule 104 hearing to develop the record on the admissibility of the testimony. The *126 appellate panel retained jurisdiction and, after the Rule 104 hearing concluded, issued its decision vacating defendant’s convictions and remanding for a new trial. Burr, supra, 392 N.J.Super. at 560-63, 921 A.2d 1135. The panel determined that the trial court erred in basing its admissibility determination entirely on the fact that defendant had not raised a diminished capacity defense, instead of examining the evidence’s admissibility under broader relevance concepts. Id. at 556-57, 921 A.2d 1135. Applying Evidence Rule 402, the panel held that the evidence was admissible because it was relevant to explain defendant’s conduct and “to negate the inference that defendant allowed young children to sit on his lap with the purpose of grooming them for sexual abuse.” Id. at 561, 921 A.2d 1135. The panel explained,

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Bluebook (online)
948 A.2d 627, 195 N.J. 119, 2008 N.J. LEXIS 606, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-burr-nj-2008.