                                NOT FOR PUBLICATION WITHOUT THE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-3442-16T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

DENNIS W. POZNIAK,

     Defendant-Appellant.
_____________________________

                    Argued January 22, 2019 – Decided March 11, 2019

                    Before Judges Messano and Rose.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Burlington County, Indictment No. 15-07-
                    0872.

                    Timothy S. Farrow argued the cause for appellant (Dash
                    Farrow, LLP, attorneys; Timothy S. Farrow, on the
                    briefs).

                    Alexis R. Agre, Assistant Prosecutor, argued the cause
                    for respondent (Scott A. Coffina, Burlington County
                    Prosecutor, attorney; Alexis R. Agre, of counsel and on
                    the brief).

PER CURIAM
      At 9:06 a.m. on January 31, 2015, Burlington County Central

Communications received a 9-1-1 call from B.W. 1 B.W. shared a home with her

father, sister, and her sister's boyfriend, defendant Dennis W. Pozniak. B.W.

reported her sister was bleeding and in a lifeless condition on the living room

couch, and her father's lifeless and bloody body was on the bed in his room.

B.W. did not know if defendant was still in the house. Police arrived and, after

confirming B.W.'s sister and father were deceased, proceeded upstairs and found

defendant in a locked bedroom, lying in bed with covers drawn. Defendant had

lacerations on his arms, legs, feet, and neck, some of which were still bleeding,

and, when questioned by police, said he had cut himself. Police asked if

defendant had "hurt the others"; he admitted he had. 2 Police took defendant into

custody and transported him to the hospital.

      After hours of processing the scene, investigators found the murder

weapon, a pipe wrench, hidden under a television stand in the living room. The




1
  We use initials when possible to maintain the confidentiality of the victims
and their family.
2
   At trial, one of the officers testified to these statements by defendant.
Defendant's responses in the transcript from the audible portion of the body
camera recording, however, were "indecipherable."
                                                                         A-3442-16T3
                                       2
medical examiner, Dr. Ian Hood, testified that both victims died of blunt force

trauma to the head caused by multiple, forceful blows with a heavy object.

      A jury convicted defendant of two counts of first-degree murder, N.J.S.A.

2C:11-3(a)(1) and (2), as well as one count of third-degree possession a weapon

with unlawful intent, N.J.S.A. 2C:39-4(d), and one count of fourth-degree

unlawful possession of a weapon, N.J.S.A. 2C:39-5(d).           After denying

defendant's motion for a new trial and ordering appropriate mergers, the judge

sentenced defendant to two consecutive thirty-year terms of imprisonment, each

with thirty years' parole ineligibility.

      Before us, defendant raises the following points on appeal:

             POINT ONE

             THE TRIAL COURT ERRED IN DENYING
             DEFENDANT'S REQUEST TO CHARGE THE JURY
             WITH LESSER-INCLUDED OFFENSES.

             POINT TWO

             THE TRIAL [COURT] ERRED BY GRANTING THE
             STATE'S MOTION TO REDACT DEFENDANT'S
             STATEMENT,    SINCE    THE    REDACTED
             STATEMENT MISREPRESENTED THE FULL . . .
             STATEMENT.

             POINT THREE

             THE TRIAL COURT ERRED BY DENYING
             DEFENDANT'S MOTION TO INTRODUCE HIS

                                                                       A-3442-16T3
                                           3
PRIOR STATEMENTS CONCERNING HIS STATE
OF MIND AS PERMITTED UNDER [N.J.R.E.]
803(c)(3).

POINT FOUR

THE TRIAL COURT ERRED IN FAILING TO
FURTHER INQUIRE OR POLL THE JURY
REGARDING ITS NOTE ALLEGING JUROR
MISCONDUCT.

POINT FIVE

THE TRIAL COURT ERRED AS A MATTER OF
LAW IN ITS DECISION TO REJECT THE
DEFENSE'S   MOTION  TO  DISMISS  THE
INDICTMENT.

    A. THE PROSECUTOR IMPROPERLY
    COMMENTED ON THE WEIGHT AND
    SUFFICIENCY OF THE EVIDENCE AT
    THE GRAND JURY PROCEEDING.

    B. [THE] PROSECUTOR FAILED TO
    PRESENT CLEARLY EXCULPABLE
    EVIDENCE TO THE GRAND JURY.

    C. THE PROSECUTOR FAILED TO
    INSTRUCT THE GRAND JURY AS [TO]
    THE DEFENSES OF INTOXICATION
    AND MENTAL DISEASE OR DEFECT.




                                        A-3442-16T3
                   4
                                       I.

                                      A.

      The sole issue in the case was defendant's mental state at the time of the

murders. The State contended that defendant grew increasingly upset at his

girlfriend for permitting her father, who suffered from alcoholism, to remain in

the home. The State also argued that defendant began to suspect that his

girlfriend no longer saw a long-term future in their relationship and was about

to ask defendant to leave the home.

      The State's case was bolstered by the testimony of friends and family

members, as well as numerous text messages, beginning a week before the

murders, in which defendant expressed frustration and outright anger at his

girlfriend's father and the disruption his presence brought to the household. In

response to one of the messages, defendant's brother said it sounded as if

defendant planned to kill someone. In text messages sent late on the night of

the murders to his mother, brother, and cousin, defendant spoke ominously of

suicidal thoughts. Defendant sent his mother a text in which he identified a

small plastic case in which he had placed money, his digital camera, pictures of

his daughter and other valuables, and told his mother where it would be if

"something were to happen" to him.


                                                                        A-3442-16T3
                                       5
       The State also recovered Google searches defendant ran that night seeking

information as to how much Xanax and other drugs he would need to ingest to

commit suicide.

       Additionally, largely through forensic evidence, the State was able to

argue that defendant carefully planned the murders, silently going into his

girlfriend's father's room, closing the door behind him, and killing the man as he

slept. According to the State's theory, defendant then went downstairs and killed

his girlfriend as she lay sleeping on the sofa. The State submitted that defendant

carefully tried to hide the murder weapon and, only then, retreated to his room

to inflict numerous, albeit non-fatal, wounds to himself.

       After conducting a pre-trial N.J.R.E. 104(c) hearing, the judge ruled that

defendant voluntarily gave a statement to police at the hospital after waiving his

Miranda3 rights. The jury heard a redacted version of the statement, in which

defendant told police he tried to commit suicide by cutting himself and taking

large amounts of prescription drugs that he had on hand, as well as drinking a

large amount of wine. Defendant expressed anger at his girlfriend's father and

the trouble he caused because of his inability to stay sober. Defendant was hurt



3
    Miranda v. Arizona, 384 U.S. 436 (1966).


                                                                          A-3442-16T3
                                        6
that his girlfriend sided with her father and told defendant that she would have

to take care of her family for the rest of her life. Defendant never admitted to

the killings, nor, in the redacted version of the statement, was he asked.4

      Through his own testimony, that of his mother, father, the mother of his

daughter and two experts, defendant sought to establish his long-standing

history of substance abuse and mental illness, including suicide attempts and

drug abuse beginning in adolescence. Defendant recalled trying to commit

suicide on the night in question, but he did not recall anything about the murders.

Defendant also testified to delusional behavior during the days leading up to the

homicides, as well as a hallucination in the past.

      Dr. Leland Mosby, a clinical and forensic psychologist, testified that

defendant suffered from a "major depressive disorder with psychotic features"

and a "personality disorder with paranoia and schizotypal features." Dr. Mosby

explained these mental illnesses "impaired [defendant's] ability to form intent

and intentionally to harm people, to harm the victims." However, contrary to

the numerous text messages defendant sent on the night of the murders and




4
  We address below the argument defendant raises in Point Two. It suffices at
this point to say that in redacted portions of the statement, defendant implied he
believed his girlfriend was still alive and outside his hospital room.
                                                                           A-3442-16T3
                                        7
defendant's own testimony, Dr. Mosby also opined that defendant lacked the

intent to commit suicide.

      Dr. Gary Lage, an expert in toxicology and pharmacology, testified

primarily from his interview of defendant. He opined that defendant likely

suffered the effects of intoxication from the wine and drugs he ingested, such

that "his cognitive ability, his thought processes" "would not have been able to

form the intent to injure himself" or the victims. However, Dr. Lage's opinion

was compromised when the prosecutor asked him to assume the State's version

of the sequence of events. Dr. Lage acknowledged those facts would mean

defendant took the drugs "after the fact" and would change the doctor's opinion

about defendant's lack of intent.

      It suffices to say for our purposes that the State's case on rebuttal attacked

the conclusions of both defense experts. The prosecutor recalled Dr. Hood, who

testified that the toxicological results from blood drawn from defendant at the

hospital showed no traces of alcohol. Although there were traces of prescription

drugs in defendant's system, Dr. Hood opined this was possible because of

defendant's admitted longstanding substance abuse. Dr. Hood also opined that

if defendant was as intoxicated as Dr. Lage said he most likely was, defendant

would have been unable to execute the murders in such a deliberate fashion. Dr.


                                                                            A-3442-16T3
                                         8
Steven Simring, a forensic psychiatrist, testified that defendant neither suffered

from any mental illnesses, nor did he possess a diminished capacity to

understand his actions.

      During the charge conference, defendant asked the judge to instruct the

jury on aggravated manslaughter, manslaughter and passion/provocation

manslaughter. The State objected, arguing the evidence presented no set of facts

demonstrating that defendant acted recklessly or in the heat of passion after a

reasonable provocation. 5

      The judge denied the request. In a comprehensive oral opinion, the judge

reviewed numerous decisions and detailed the State's evidence. In particular,

the judge noted the evidence showed that defendant found the wrench from

somewhere in the house; went into the bedroom, closed the door, and struck his

girlfriend's father in the "most vulnerable area" with "perfect aim"; then left and

went to another part of the house to strike his girlfriend multiple times on the

head, "where death is likely to occur." Comparing the model jury charges on

recklessness, which requires a showing of a "conscious disregard of a substantial


5
    Defendant's brief does not argue it was error to deny a charge on
passion/provocation manslaughter. We do not consider the issue further. See
Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011) ("An issue
not briefed on appeal is deemed waived.").


                                                                           A-3442-16T3
                                        9
and justifiable risk," and "knowing serious bodily injury murder," the judge

concluded there was no rational basis for a jury to "acquit [defendant] of . . .

purposeful and knowing [murder] and find . . . reckless [conduct] under these

factual circumstances[.]"

      However, without objection, the judge did instruct the jury on both

voluntary intoxication and diminished capacity using the model charges. See

Model Jury Charges (Criminal), "Intoxication negating element of the offense

(N.J.S.A. 2C:2-8(a))," (rev. Oct. 18, 2005); Model Jury Charges (Criminal),

"Evidence of mental disease or defect (N.J.S.A. 2C:4-2)," (rev. June 5, 2006). 6

Because the judge provided these charges without charging any lesser-included

offenses of murder, the jury had to either convict defendant of the murders or

otherwise acquit him.




6
  Because she concluded the facts did not support any lesser-included offenses,
the judge did not provide the jury with Model Jury Charge (Criminal), "Effect
of intoxication on jury's consideration of lesser offenses involving recklessness
(N.J.S.A. 2C:2-8(b))," (Feb. 27, 1989). That model charge reflects a provision
of our Criminal Code, "N.J.S.A. 2C:2-8(b)[, which] precludes the admission of
evidence of self-induced intoxication to disprove recklessness." State v. Baum,
224 N.J. 147, 162 (2016). We note that the State did not argue at trial, and does
not contend before us, that the evidence did not support providing the voluntary
intoxication and diminished capacity instructions to the jury.
                                                                         A-3442-16T3
                                      10
                                        B.

      We can present no better summary of the law and our standard of review

than Justice Timpone recently did in State v. Carrero, 229 N.J. 118 (2017).

                  N.J.S.A. 2C:1-8(e) mandates that "[t]he court
            shall not charge the jury with respect to an included
            offense unless there is a rational basis for a verdict
            convicting the defendant of the included offense."
            Accordingly, when a defendant requests a jury
            instruction on a lesser-included offense and is denied
            the requested instruction, an appellate court reviews the
            denial of that request, determining whether "the
            evidence presents a rational basis on which the jury
            could [1] acquit the defendant of the greater charge and
            [2] convict the defendant of the lesser." If such a
            rational basis exists, a trial court's failure to give the
            requested instruction is reversible error.

                    The rational-basis test sets a low threshold. A
            defendant is entitled to a lesser-included offense
            instruction rationally supported by the evidence, even
            if the instruction is inconsistent with the defense theory.
            In deciding whether the rational-basis test has been
            satisfied, the trial court must view the evidence in the
            light most favorable to the defendant.

            [Id. at 128 (alterations in original) (quoting State v.
            Brent, 137 N.J. 107, 113, 117 (1994)).]

The issue is simple; did the evidence viewed in a light most favorable to

defendant provide a rational basis for the jury to conclude he acted recklessly?

We conclude it did, and therefore, we are compelled to reverse and remand the

matter for a new trial.

                                                                          A-3442-16T3
                                       11
                                       C.

      We preface our remarks by making clear that there was more than

sufficient evidence for the jury to conclude beyond a reasonable doubt that

defendant acted purposely or knowingly in killing the two victims. Furthermore,

we express no opinion whatsoever about the credibility or persuasiveness of

defendant's proofs. That is not our function.

      With the exception of felony murder, N.J.S.A. 2C:11-3(a)(3), to be guilty

of murder, a defendant must purposely or knowingly cause death or serious

bodily injury resulting in death. N.J.S.A. 2C:11-3(a)(1) and (2). Homicide

constitutes aggravated manslaughter when the defendant "recklessly causes

death under circumstances manifesting extreme indifference to human life,"

N.J.S.A. 2C:11-4(a)(1), or manslaughter when the homicide is "committed

recklessly." N.J.S.A. 2C:11-4(b)(1) (emphasis added).

            The distinction between the two [forms of
            manslaughter] turns on the degree of probability that
            the death will result from the defendant's conduct.
            When it is probable that death will result from that
            conduct, the standard for aggravated manslaughter is
            met . . . . However, when it is only possible that death
            will result, the homicide constitutes reckless
            manslaughter.

            [State v. Galicia, 210 N.J. 364, 378 (2012) (citations
            omitted).]


                                                                       A-3442-16T3
                                      12
"A person acts recklessly with respect to a material element of an offense when

he consciously disregards a substantial and unjustifiable risk that the material

element exists or will result from his conduct." N.J.S.A. 2C:2-2(b)(3). "The

element of criminal recklessness differs from knowing culpability, N.J.S.A.

2C:2-2(b)(2), in that the latter requires a greater degree of certainty that a

particular result will occur."   State v. Williams, 190 N.J. 114, 123 (2007)

(citations omitted).

      "The Criminal Code authorizes a defendant to present evidence of a

mental disease or defect to 'negate the presence of an essential mental element

of the crime . . . .'" Baum, 224 N.J. at 160 (citing State v. Rivera, 205 N.J. 472,

487 (2011)); see also N.J.S.A. 2C:4-2. "This defense 'was designed by the

Legislature not as a justification or an excuse, nor as a matter of diminished or

partial responsibility, but as a factor bearing on the presence or absence of an

essential element of the crime as designated by the Code.'" Ibid. (quoting State

v. Breakiron, 108 N.J. 591, 608 (1987)).

                   A defendant may raise a diminished capacity
            defense if (1) he or she "has presented evidence of a
            mental disease or defect that interferes with cognitive
            ability sufficient to prevent or interfere with the
            formation of the requisite intent or mens rea[,]" and (2)
            "the record contains evidence that the claimed
            deficiency did affect the defendant's cognitive capacity


                                                                           A-3442-16T3
                                       13
             to form the mental state necessary for the commission
             of the crime."

             [Id. at 160-61 (quoting State v. Galloway, 133 N.J. 631,
             647 (1993)).]

      "Evidence of intoxication may be introduced to disprove that a defendant

acted 'purposely' or 'knowingly,' but not to disprove that he acted 'recklessly.'"

State v. Juinta, 224 N.J. Super. 711, 722 (App. Div. 1988) (citing State v.

Warren, 104 N.J. 571, 575-576 (1986); citing State v. Cameron, 104 N.J. 42

(1986)); see also N.J.S.A. 2C:2-8(a). The evidence must provide "a rational

basis for the conclusion that defendant's 'faculties' were so 'prostrated' that he or

she was incapable of forming an intent to commit the crime." State v. R.T., 411

N.J. Super. 35, 46-47 (App. Div. 2009) (quoting State v. Mauricio, 117 N.J. 402,

418-19 (1990)). As Judge Stern explained in Juinta,

             while diminished capacity is in many ways analogous
             to intoxication, voluntary intoxication does not excuse
             reckless conduct only because of the wording of
             N.J.S.A. 2C:2-8[(b),] which provides that '[w]hen
             recklessness establishes an element of the offense, if
             the actor, due to self-induced intoxication, is unaware
             of a risk of which he would have been aware had he
             been sober, such unawareness is immaterial.'

             [224 N.J. Super. at 722.]

Diminished capacity, however, can negate the mental state of recklessness. Id.

at 724.

                                                                             A-3442-16T3
                                         14
      The trial judge correctly noted that evidence of intoxication or diminished

capacity does not compel submission of the lesser-included offenses of

aggravated manslaughter or manslaughter to the jury.          See, e.g., State v.

Ramseur, 106 N.J. 123, 269 (1987) ("A charge on a lesser-included offense

cannot be automatically given to a jury when the defense of diminished capacity

is raised by a defendant."). "[I]f the proofs support only a conviction of murder

or acquittal, any lesser degree of homicide should not be charged as a possible

verdict." State v. Sanchez, 224 N.J. Super. 231, 239 (App. Div. 1988) (citing

State v. Selby, 183 N.J. Super. 273, 280 (App. Div. 1981)).

      In denying defendant's request to submit the lesser-included manslaughter

charges, the judge reviewed a number of cases from this court and concluded

that the nature and circumstances of the killings in this case did not rationally

support a finding that defendant acted with a "conscious disregard of a

substantial and unjustifiable risk" that his actions would cause death. For

example, she cited State v. Micheliche, where we rejected a claim of error in

failing to provide the charge on aggravated manslaughter because there was no

evidence that the defendant's intoxication caused a prostration of the faculties

sufficient to defeat the mental state, and the murder was "appalling[ly] sever[e]."

220 N.J. Super. 532, 543 (1987). However, while the homicides in this case


                                                                           A-3442-16T3
                                       15
were gruesome and clearly supported the conclusion they were committed with

purpose or knowledge, unlike the defendant in Micheliche, defendant himself

testified and provided expert support for his claims.

      The judge also cited our decisions in State v. Hammond, 338 N.J. Super.

330 (App. Div. 2001), and State v. Mance, 300 N.J. Super. 37 (App. Div. 1997),

for the proposition that the purposeful nature of the murders precluded

instructions as to crimes that require only a reckless mental state. However,

there was no mitigating evidence of diminished capacity or intoxication adduced

in those cases. See Hammond, 338 N.J. Super. at 333-37; Mance, 300 N.J.

Super. at 44-47.

      Despite the apparent purposeful nature of the homicidal act or acts, several

cases have nevertheless accepted that the judge properly charged the jury with

lesser-included homicide offenses in light of evidence of diminished capacity or

intoxication. This reflects a basic premise: "evidence that the accused had a

diminished capacity at the time of the crime is relevant in determining whether

it is appropriate to charge aggravated manslaughter and manslaughter as

lesser[-]included offenses." State v. Washington, 223 N.J. Super. 367, 375

(App. Div. 1988).




                                                                          A-3442-16T3
                                      16
      For example, in Warren, the defendant shot his former paramour "with

'military precision,'" by firing three shots, two of which hit her, after calling her

over to his parked car. 104 N.J. 571, 573-74. Although not testifying, defendant

asserted intoxication as a defense through family and expert testimony. Id. at

574. The trial judge charged the jury with murder, as well as aggravated

manslaughter, manslaughter and passion/provocation manslaughter, and

provided instructions on intoxication.       Id. at 573-75.    However, the judge

"neglected to relate the intoxication defense to the manslaughter" offenses. Id.

at 575.

      While not directly addressing whether the facts supported instructions on

aggravated manslaughter or manslaughter, the Court nonetheless noted that the

effect of the trial court's oversight was to "permit[] the jury to believe that

defendant's intoxication prevented a conviction for manslaughter. In effect, the

court unintentionally prevented defendant's conviction on the lesser[-]included

offenses of aggravated manslaughter or manslaughter, and forced the jur y to

choose between a murder conviction and an acquittal." Id. at 578. We assume,

therefore, that in ordering a new trial, the Court concluded the evidence could

support a conviction premised on reckless conduct, despite the deliberate nature

of the defendant's fatal assault.


                                                                             A-3442-16T3
                                        17
      In Juinta, the defendant was convicted of aggravated manslaughter as a

lesser-included offense of murder. 224 N.J. Super. at 713. The defendant

brutally stabbed his girlfriend and carefully cleaned and hid the knife afterwards.

Id. at 716-18. The defendant presented expert testimony in support of his

insanity defense; he told police he heard voices prior to the killing and dreamed

of stabbing the victim. Id. at 717. Once again, although we did not explicitly

consider whether the evidence could support a charge of reckless homicide, we

concluded it was plain error not to provide instructions on diminished capacity

and remanded for a new trial. Id. at 720-21.

      We directly addressed the issue of whether the evidence could support a

verdict of aggravated manslaughter or manslaughter in Washington. There, the

defendant stabbed his wife thirty times all over her body, which, when found by

a neighbor in the couple's car, still had the knife protruding from her neck. 223

N.J. Super. at 370. Through the testimony of experts and family members, the

defendant posited the possibility that he stabbed his wife during an epileptic

seizure. Id. at 371. During a psychiatric hospitalization that immediately

followed his arrest, the defendant "expressed a lack of awareness that his wife

was dead and appeared to be utterly surprised when told that she was dead and

that he probably had killed her." Ibid. Although he subsequently provided more


                                                                           A-3442-16T3
                                       18
details of the events, the defendant had virtually no recollection of the actual

killing. Ibid.

      The judge provided instructions on diminished capacity but denied the

defendant's request to charge manslaughter as a lesser-included offense. Id. at

372. In reversing the defendant's conviction, Judge Skillman wrote:

             [T]he trial court was required to charge the jury
             regarding the lesser[-]included offenses of aggravated
             manslaughter and manslaughter. There was evidence
             presented that defendant was suffering from an
             epileptic seizure at the time of the crime and that he was
             unaware of and unable to control his actions. If the jury
             had accepted this testimony in its entirety, it could have
             acquitted defendant by reason of insanity. However,
             the jury also could have concluded that defendant
             lacked the cognitive faculties to have acted "purposely"
             or "knowingly" but that he retained a sufficient
             awareness of what he was doing and control over his
             actions to have acted with a "conscious disregard of a
             substantial and unjustifiable risk."

             [Id. at 375-76.]

      These cases demonstrate that the nature and circumstances of a fatal

assault may not, in and of themselves, serve as the basis to deny a request for

lesser-included offenses if the evidence, viewed in a light most favorable to

defendant, supports the charge.       When a defendant has established some

evidence to support a diminished capacity defense or intoxication defense, as he

did in this case, that evidence is critical in deciding whether to submit the lesser-

                                                                             A-3442-16T3
                                        19
included offense to the jury. Washington, 223 N.J. Super. at 375. "'[I]f on the

evidence it would not be idle to have the jury decide' whether defendant had

committed the lesser-included offense, it is error not to charge that offense."

State v. Tucker, 265 N.J. Super. 296, 229-30 (App. Div. 1993) (quoting State v.

Crisantos, 102 N.J. 265, 278 (1986)), aff'd, 137 N.J. 259 (1994).

      Without passing on its credibility, which is, of course, solely the jury's

province, the testimony viewed in a light most favorable to defendant

demonstrated a life of failed suicide attempts and efforts to "kick" his substance

abuse habit. In the fall of 2014, while living with the victims, he relapsed into

heroin use and attempted suicide, after which he was hospitalized. Although

fully cognizant of the need to treat his mental illness, he did not. Defendant also

described a visual hallucination that occurred shortly after his hospitalization.

      By early January 2015, defendant was taking Suboxone, Valium, Xanax

and Adderall, before work, at work, and in order to sleep. Defendant described

a delusion, in which he believed there was a large amount of money hidden in

the woods behind his house and went out to look for it. Another time, he took

"a large quantity of Xanax or something" and found himself "laying in the snow

in the woods."




                                                                           A-3442-16T3
                                       20
      For at least one week before the homicides, defendant began sending text

messages that directly alluded to his suicidal thoughts. Defendant said he

thought he was "losing control" and began having delusions that certain people

were working against him. He described feeling rage at work directed toward a

woman who he believed made up false stories about him at the job site. Some

of the text messages could infer, as the prosecutor asserted, defendant's hostility

toward both victims. In one, defendant described B.W.'s father as "the devil"

and described his "offspring" as devils, ending the text with the question, "When

does the cycle stop?"

      Defendant described hallucinations at work, and an auditory hallucination

at home in which he thought B.W. and her father were plotting to kidnap his

daughter. The testimony of Dr. Mosby described defendant's chronic delusional

thinking, his "[s]ubstance induced psychosis disorder," and the effect

defendant's drug ingestion on the night of the murders had on defendant's

"[]ability to understand what's going on with his delusions."

      Defendant testified his intention was to take a mix of wine and drugs to

make it easier to commit suicide. However, it is clear from these prior incidents

and others that defendant was aware of the risk that the combination of drugs

and his mental illness posed to his ability to control his behavior. According to


                                                                           A-3442-16T3
                                       21
the expert testimony, during these psychotic episodes, defendant was unable to

understand what was happening.

      We are compelled to conclude that a jury could reasonably find that in

deciding to ingest what he claimed were large amounts of a potent mixture of

drugs and alcohol, defendant "consciously disregard[ed] a substantial and

unjustifiable risk that [death would] result from his conduct." N.J.S.A. 2C:2-

2(b)(3). Certainly, the proofs "leave room for dispute" on that issue, Tucker,

265 N.J. Super. 330 (citing State v. Sinclair, 49 N.J. 525, 540 (1967)), and

therefore the lesser-included offenses of aggravated manslaughter and

manslaughter should have been submitted to the jury. We reluctantly reverse

and remand the matter for a new trial.

                                         II.

      We address the issues raised in Points Two and Three for guidance in the

event of a retrial.

      As noted, the judge permitted the State to admit certain portions of the

audio-recorded statement defendant made to Detectives Pallante and Thompson

at the hospital after he was taken from the scene of the homicides. The State

moved in limine to admit only a small portion of the entire statement; these

portions were, without doubt, relevant to establish a motive for the killings.


                                                                       A-3442-16T3
                                         22
Defendant, however, objected and asked that the judge admit the entire

statement, arguing it was admissible under the doctrine of testimonial

completeness. See N.J.R.E. 106. The judge ordered the prosecutor to include a

short portion of the statement wherein defendant stated he tried to commit

suicide, and otherwise granted the State's motion.

      In Point II, defendant argues he should have been permitted to introduce

portions of the statement in which he detailed his mental and substance abuse

history and previous suicide attempts and ideations. We disagree.

      N.J.R.E. 106 provides: "When a writing . . . or part thereof is introduced

by a party, an adverse party may require the introduction at that time of any

other part or any other writing . . . which in fairness ought to be considered

contemporaneously." The requested portion "may be required to be read if it is

necessary to (1) explain the admitted portion, (2) place the admitted portion in

context, (3) avoid misleading the trier of fact, or (4) insure a fair and impartial

understanding." State v. Lozada, 257 N.J. Super. 260, 272 (App. Div. 1992)

(quoting United States v. Soures, 736 F.2d 87, 91 (3d Cir. 1984)). "The rule

exists 'to permit the trier of the facts to have laid before it all that was said at the

same time upon the same subject matter.'" State v. Underwood, 286 N.J. Super.

129, 140 (App. Div. 1995) (quoting State v. Gomez, 246 N.J. Super. 209, 217


                                                                                A-3442-16T3
                                          23
(1991)). We review the trial judge's decision in this regard for a mistaken

exercise of discretion. Lozada, 257 N.J. Super. at 272.

      Here, the judge admitted a portion of the statement in which defendant

told the detectives about his suicide attempt, properly concluding that limited

portion placed into context why defendant was in the hospital. However, much

of the rest of the statement that detailed defendant's drug abuse and mental health

issues was not relevant to the portions the State sought to admit, nor was i t

necessary to place the admitted portions in context or to prevent the jury from

being misled. We agree the judge did not mistakenly exercise her discretion in

denying the admission of the majority of the remainder of defendant's statement.

      However, in a portion of the statement the judge permitted to be redacted,

detectives asked defendant directly why he killed the victims; defendant denied

the accusation. At another point, defendant expressed belief that his girlfriend

was alive and waiting for him outside the room. It was a mistaken exercise of

discretion to exclude these from the redacted statement because, although self -

serving, they clearly placed the State's proffered reason for admission of

portions of the statement — proof of motive for the homicides — in context.

Excluding those portions of the statement provided the jury with an unfair and

only partial understanding of the admitted portion of defendant's statement. If


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                                       24
the case is retried, and the State seeks to introduce the same parts of defendant's

statement, the judge shall also admit those portions in which defendant denies

committing the crimes or otherwise expresses a belief that the victims are still

alive.7

      Defendant also argues the judge erred in excluding portions of the

statement demonstrating his confused state during the questioning.              For

example, at one point, defendant told detectives he took a whole bottle of Valium

and was "seeing four of your eyes right now." At another point, when detectives

asked defendant to consent to collection of his DNA, he responded, "Do you

think I'm in the state right now to be making any official decisions or anything

like that right now? I certainly don't feel like it." Defendant then refused to

consent and said he was waiting for his parents.

      Although the judge made a preliminary determination that defendant's

statement was inadmissible, it is ultimately for the jury to decide whether the

statement was actually made and if it was credible. State v. Hampton, 61 N.J.

250, 271 (1972); see also Model Jury Charges (Criminal), "Statements of


7
  We note that the judge recognized the restrictive consequence of her pre-trial
ruling during the direct examination of defendant and permitted defense counsel
some leeway in questioning defendant about whether, when speaking with
detectives, he recalled harming the victims.


                                                                           A-3442-16T3
                                       25
Defendant," (rev. June 14, 2010).        Defendant's statements that arguably

demonstrated some mental or physical distress were critical to the jury's

function, especially when defendant's mental state was the key issue in the case.

If there is a retrial, the jury should be permitted to hear those portions of the

statement that permit a full and fair consideration of the issue.

      In Point Three, defendant challenges the exclusion of statements he made

to a medical technician at the hospital who was dressing his wounds. In a pre -

trial hearing, the technician testified that while in the emergency room at the

hospital, defendant volunteered that he had taken Xanax and alcohol. Defendant

also asked for B.W., his "girlfriend." None of the information provided by

defendant was in response to questioning by the technician, and the information

was not necessary to treat defendant properly.

      The judge ruled the statements to the technician were not admissible under

N.J.R.E. 803(c)(4), which generally excepts from exclusion as hearsay out -of-

court statements made for the purpose of medical diagnosis or treatment. We

agree, and that argument requires no further discussion. R. 2:11-3(e)(2).

      The judge also concluded the statements were not admissible under

N.J.R.E. 803(c)(3), which excepts from the general exclusion of hearsay good

faith statements made by the declarant of his "then existing state of mind . . . ."


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                                       26
She reasoned that defendant made the statement between ten and twelve hours

after the incident. This delay permitted fabrication and was not evidence of

defendant's present state of mind. See, e.g., State v. McLaughlin, 205 N.J. 185,

203 (2011) (citing State v. Long, 173 N.J. 138, 154-55 (2002)). In essence, the

judge concluded the statement was not relevant to the events surrounding the

homicides. We again agree with this analysis, as far as it goes.

      Because the issue is not before us, we do not consider whether statements

made by defendant to the medical technician are independently admissible to

support his defenses of diminished capacity or intoxication if asserted at any

retrial. Hearsay is, by definition, an out-of-court statement "offered . . . to prove

the truth of the matter asserted." N.J.R.E. 801(c). Defendant's reference to B.W.

as his girlfriend was not offered to prove that she was his girlfriend, but rather

to demonstrate defendant, in a confused state, thought she was.

                                        III.

      Defendant's two remaining arguments do not require much discussion, but

we address them for the sake of completeness.

      In Point Four, defendant argues the judge mistakenly exercised her

discretion in handling a note sent by a juror during deliberations, claiming

another juror was "disrespectful and rude." He contends the judge erred by


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                                        27
deciding to address the jurors as a group and provide the standard Allen8 charge

to continue deliberations. Since we are reversing for other reasons, the issue is

moot. However, our review of the record leads us to conclude there was no

mistaken exercise of discretion.

       In Point Five, defendant contends the judge erred by denying his pre -trial

motion to dismiss the indictment. Defendant asserted that before the grand jury,

the prosecutor: (1) "improperly commented on the weight and sufficiency of the

evidence"; (2) "failed to present clearly exculpable evidence"; and (3) "failed to

instruct the grand jury" on all defenses. The argument lacks sufficient merit to

warrant extensive discussion. R. 2:11-3(e)(2). We add only the following.

       The prosecutor's comment about the time of death was fleeting and

entirely ameliorated by instructions to the grand jurors that nothing he said

constituted evidence. In addition, the prosecutor's failure to introduce evidence

of defendant's mental illness, substance abuse, and failed suicide attempt did not

violate the tenets of State v. Hogan, 144 N.J. 216 (1996). That evidence did not

directly negate guilt, nor was it clearly exculpatory. Id. at 237.

       Finally, we recognize that the State has a responsibility to instruct the

grand jury on relevant defenses as a "corollary to [the] responsibility to present


8
    Allen v. United States, 164 U.S. 492 (1896).
                                                                          A-3442-16T3
                                       28
exculpatory evidence." State v. Hogan, 336 N.J. Super. 319, 341 (App. Div.

2001). It is only when there are facts, not expert opinion, that clearly establish

the appropriateness of such an instruction that one must be given. Id. at 343-44.

A defendant must give written notice of the intention to assert diminished

capacity, Rule 3:12-1, and the diagnosis of mental illness generally must be

supported by an expert's report. The State had no obligation to instruct the grand

jury on this issue.

      Defendant argues his statement and blood screens from the hospital

provided the State with evidence of intoxication, and therefore, the prosecutor

was required to provide the grand jurors with instructions. However, Rule 3:12-

1 requires notice as to this issue, too, and, more importantly, the prosecutor was

not compelled to introduce this evidence under the Hogan standard.             No

instruction on intoxication to the grand jury was necessary.

      Reversed and remanded for a new trial.




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