               NOT FOR PUBLICATION WITHOUT THE
              APPROVAL OF THE APPELLATE DIVISION

                                  SUPERIOR COURT OF NEW JERSEY
                                  APPELLATE DIVISION
                                  DOCKET NO. A-4534-15T3

STATE OF NEW JERSEY,

     Plaintiff-Respondent,            APPROVED FOR PUBLICATION

                                               June 5, 2019
v.
                                          APPELLATE DIVISION
MORGAN G. MESZ,

     Defendant-Appellant.


          Argued December 19, 2018

          Before Judges Alvarez and Mawla.

          Reargued May 22, 2019 – Decided June 5, 2019

          Before Judges Alvarez, Reisner, and Mawla.

          On appeal from Superior Court of New Jersey, Law
          Division, Union County, Indictment No. 11-07-0761.

          Robert Carter Pierce, Designated Counsel, argued the
          cause for appellant (Joseph E. Krakora, Public
          Defender, attorney; Robert Carter Pierce, on the brief).

          Michele C. Buckley, Special Deputy Attorney
          General/Acting Assistant Prosecutor, argued the cause
          for respondent (Jennifer Davenport, Acting Union
          County Prosecutor, attorney; Michele C. Buckley, of
          counsel and on the brief).

          Appellant filed a pro se supplemental brief.
      The opinion of the court was delivered by

ALVAREZ, P.J.A.D.

      While wielding a tomahawk and knife, defendant Morgan Mesz gravely

injured two women and brutally attacked the neighbor who came to their

rescue.   At trial, defendant advanced the theory that during the 6:00 a.m.

January 7, 2011 incident, he was under the influence of then-legal synthetic

marijuana to the extent that he was pathologically intoxicated and his use of

the drug triggered a rare substance-induced psychosis. N.J.S.A. 2C:2-8(e)(3)

defines "pathologically intoxicated" as "intoxication grossly excessive in

degree, given the amount of the intoxicant, to which the actor does not know

he is susceptible." The State's psychopharmacology forensic expert videotaped

his May 2013 four-hour interview with defendant. The prosecutor at trial,

while examining the expert on direct, played portions 1 of the interview to the

jury, and argued in summation that the information defendant relayed was

substantive evidence contrary to the defense theory.     In the absence of a

limiting instruction, we reverse.

      Defendant was convicted of two counts of attempted murder, N.J.S.A.

2C:5-1 and 2C:11-3 (counts one and two); the lesser-included charge of third-


1
  Only the audio was played because defendant was dressed in prison garb
during the interview.


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degree aggravated assault, N.J.S.A. 2C:12-1(b)(2) (count three); unlawful

possession of a weapon, N.J.S.A. 2C:39-5(d) (count four); and possession of a

weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count five). He was

sentenced to two consecutive sixteen-year prison terms, subject to the No

Early Release Act's (NERA) eighty-five percent parole ineligibility, N.J.S.A.

2C:43-7.2, on the attempted murder counts.       The judge imposed a NERA

consecutive four-year term of incarceration for the third-degree aggravated

assault charge. The weapons offenses were merged into the attempted murder

convictions.    Defendant's sentence thus aggregated to thirty-six years

imprisonment.

      When defendant was arrested at the scene, he said that he was described

in the Bible and had to kill the women to protect the children of Newark.

After treatment for minor injuries at a nearby hospital, he was taken to the Ann

Klein Forensic Center for evaluation.

      At trial, the hospital committing psychiatrist testified that defendant was

suffering from active paranoid delusions when brought in that morning. She

could not determine if the cause was schizophrenia, substances, or a

combination of both.     She said that defendant was then suffering from

"psychosis not otherwise specified, . . . rule out schizophrenia, rule out

substance-induced    psychotic   disorder[.]"     On    cross-examination,     the



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prosecutor asked the doctor if she would rule out the synthetic marijuana

induced part of the diagnosis, to which she responded in the affirmative.

       On cross-examination, defendant's expert psychiatrist clarified that by

using the term "rule out," the committing physician did not mean to imply that

she had eliminated substance abuse as a possible trigger for the psychosis. She

meant only that it needed to be further investigated before a diagnosis could be

made with certainty—before it could be "ruled out."

       Defendant's psychiatric expert opined that at the time of the offense,

defendant suffered from a substance-induced psychotic disorder and could not

differentiate between right and wrong. His opinion did not vary, even after

being confronted in cross-examination with bizarre incidents in defendant's

past that suggested a significant prior mental health history.

       The State called its forensic expert on rebuttal. Defense counsel's only

objection to the tape being played during his examination focused on the

expert's credentials, namely, that he was not a licensed psychologist.        No

Miranda2 warnings were given prior to the session.

       The psychopharmacologist testified that the "acute phase" effects of

synthetic marijuana manifest between two to four hours after ingestion. The

expert opined that if defendant had smoked between 6:00 and 8:00 p.m. the

2
    Miranda v. Arizona, 384 U.S. 436 (1966).


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prior evening, he would not have been under the influence of the acute effects

of the synthetic marijuana by 6:00 a.m. the following morning. He found no

records indicating that the drug had induced aggressive behavior in a database

including some 13,000 users. The expert further opined that persons with pre -

existing mental health conditions might suffer from hallucinations, usually

auditory, but that even when those occurred, they only resulted in self-harm.

      During the interview, defendant told the State's expert he had been

smoking "a lot" of synthetic marijuana the month prior to the incident. He said

he became addicted to the substance, to the extent he was chain smoking it in

blunts.3

      Defendant also said the last time he smoked prior to the January 7, 2011

incident was before leaving his home at approximately 7:00 or 8:00 p.m. on

January 6.    Afterwards, he bleached his fingers and his lips, kissed his

girlfriend goodbye, and "smashed the pipe." That day he had smoked as many

as fifteen to twenty blunts, and fifteen to twenty that night.

      The prosecutor also played defendant's description, approximately six

minutes of the interview, of his assault of the victims' neighbor, and the police

arrival at the scene.     When they arrived, defendant claimed he and the


3
   A "blunt" is a hollowed-out cigar filled with marijuana or a similar
substance.


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neighbor walked calmly towards police from where they had been sitting

talking amicably in the snow.

      The psychopharmacologist was extensively cross-examined about

articles and statistical data regarding aggressive behaviors in synthetic

marijuana users and the duration period of psychosis-like symptoms brought

on by the use of the drug. The State objected to the questioning on the basis

that the cross-examination was straying into the area of mental defects and

illnesses, reminding the court that defendant had twice denied on the record

that he intended to present an insanity defense.

      In summation, the prosecutor again played portions of the interview to

the jury, including defendant's description of the drug quantities he had been

consuming and the fact he became addicted. After doing so, the prosecutor

argued that defendant's reaction to using the drug on the morning in question

was not a grossly excessive response, only the result of his mental illness, and

therefore did not satisfy the requisite elements of pathological intoxication.

      After playing several more minutes of the audio, the prosecutor directed

the jury's attention to defendant's recorded description of an incident at a

family holiday party days before the attack. At the party, defendant reported

that he saw a five-year-old boy who to him looked like a leprechaun, and




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whom he planned to "yoke up." 4 From this, the prosecutor extrapolated that

defendant was well aware of the dangers of consumption and chose to use the

drug anyway.

        The prosecutor argued defendant's failure to describe to the expert the

quantity of intoxicant he consumed was important as well. The prosecutor also

asserted defendant's statements regarding his consumption of the drug the

evening before the assault meant that he was not under the influence when the

assault occurred because he last smoked it more than four hours before.

        The judge did not give a limiting instruction regarding the permissible

uses of defendant's statements at any point during the trial, or in his general

closing charge. When the judge instructed the jury as to the elements of the

defense of pathological intoxication, the judge said there was "evidence in this

case concerning the use by the defendant of synthetic marijuana and/or real

marijuana approximately eleven hours before the incident in question." The

timeline came from defendant's own words in the recorded statement.

        Defendant on appeal raises the following claims of error:




4
    Counsel did not object to the jury hearing this event described on the tape.


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POINT I
THE TRIAL COURT ERRED BY NOT CHARGING
THE JURY, SUA SPONTE, WITH THE DEFENSE
OF DIMINISHED CAPACITY.

POINT II
MR. MESZ WAS DEPRIVED OF A FAIR TRIAL
BECAUSE THE TRIAL COURT INSTRUCTED THE
JURY THAT MR. MESZ LAST SMOKED
"SYNTHETIC AND OR REAL MARIJUANA
APPROXIMATELY ELEVEN HOURS BEFORE
THE INCIDENT IN QUESTION" BECAUSE THIS
QUESTION OF WHEN MR. MESZ LAST SMOKED
SYNTHETIC MARIJUANA WAS A QUESTION
FOR THE JURY.

POINT III
THE TRIAL COURT ERRED BY NOT BARRING
THE TESTIMONY OF DR. ROBERT J. PANDINA,
THE    STATE'S EXPERT   WITNESS    WHO
PROVIDED "STATE OF MIND" TESTIMONY,
BECAUSE DR. PANDINA WAS NOT A LICENSED
PSYCHOLOGIST OR PSYCHIATRIST.

POINT IV
THE TRIAL COURT ERRED BY ALLOWING THE
STATE TO INTRODUCE IN EVIDENCE MR.
MESZ' TAPED STATEMENT TO DR. PANDINA
BECAUSE IT VIOLATED MR. MESZ' FIFTH
AMENDMENT      RIGHT    AGAINST   SELF
INCRIMINATION AND HIS SIXTH AMENDMENT
RIGHT TO COUNSEL.

POINT V
THE TRIAL COURT COMMITTED PLAIN ERROR
BY FAILING TO INSTRUCT THE JURY, SUA
SPONTE, WITH A LIMITING INSTRUCTION
THAT MR. MESZ' STATEMENT WAS NOT
ADMITTED AS SUBSTANTIVE EVIDENCE AND
THEN ALLOWING THE PROSECUTOR TO

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                   8
           ARGUE THE STATEMENT WAS SUBSTANTIVE
           EVIDENCE OF MR. MESZ' GUILT DURING
           SUMMATION.

           POINT VI
           THE TRIAL COURT ERRED BY NOT VOIR
           DIRING MR. MESZ, SUA SPONTE, CONCERNING
           THE ISSUE OF MR. MESZ RAISING AN
           INSANITY DEFENSE.

           POINT VII
           THE TRIAL COURT COMMITTED PLAIN ERROR
           BY ALLOWING THE STATE TO INTRODUCE
           INADMISSIBLE N.J.R.E. 404(b) EVIDENCE THAT
           MR. MESZ RAPED A TWELVE YEAR-OLD GIRL
           AND THEN FAILING TO GIVE THE JURY A
           CURATIVE INSTRUCTION.

           POINT VIII
           THE SENTENCE IMPOSED WAS ILLEGAL
           BECAUSE MR. MESZ WAS NOT PRESENT AND
           THE TRIAL COURT FAILED TO PERMIT MR.
           MESZ    TO  EXERCISE  HIS  RIGHT  TO
           ALLOCUTION.

           POINT IX
           THE SENTENCE IMPOSED WAS MANIFESTLY
           EXCESSIVE.

                                     I.

     We address only two points. Defendant contends that the trial judge's

failure to issue a limiting instruction to the jury was reversible error.

Secondly, we briefly discuss defendant's argument, which is not dispositive,

that the trial court erred by allowing the jury to hear defendant's interview




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because it violated his "Fifth Amendment right against self-incrimination and

his Sixth Amendment right to counsel."

      Defendant did not object to the interview being heard by the jury.

Consequently, defendant must now demonstrate it resulted in plain error, i.e.,

that the error was "clearly capable of producing an unjust result." R. 2:10-2;

see also State v. Macon, 57 N.J. 325, 337 (1971). Under that standard, "we

must disregard any error unless it is clearly capable of producing an unjust

result. Reversal of defendant's conviction is required only if there was error

sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it

otherwise might not have reached." State v. Atwater, 400 N.J. Super. 319, 336

(App. Div. 2008) (alteration in original) (internal citations and quotations

omitted); see also State v. Daniels, 182 N.J. 80, 95 (2004); Macon, 57 N.J. at

333; R. 2:10-2.

      Since at least 1959, an expert opining on a defendant's mental health

status has been permitted to include information the defendant conveyed, so

long as the jury is "instructed that the probative value of the psychiatrist's

opinion will depend upon whether there is, from all the evidence in the case,

independent proof of the statement made by the accused." State v. Lucas, 30

N.J. 37, 79-80 (1959).




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      But it is also well-established that it is improper for the prosecutor to

rely on otherwise inadmissible hearsay evidence relied upon by the expert "as

if the evidence had been substantively admissible." Biunno, Weissbard &

Zegas, Current N.J. Rules of Evidence, cmt. 7 on N.J.R.E. 703 (2018); see also

State v. Scherzer, 301 N.J. Super. 363, 442-44 (App. Div. 1997).

      In State v. Whitlow, the Court addressed the obligation of a defendant

who intends to raise the insanity defense, to submit to a psychiatric

examination conducted by the State. 45 N.J. 3, 8-10 (1965). The Court relied

on Lucas in drawing the conclusion that a defendant's statement, even a

confession, is admissible only as it relates to "the sanity issue." Id. at 16. The

Court characterized a defendant's statements to an expert as "verbal acts;

circumstantial evidence for or against the claim of insanity." Id. at 19. As the

Court went on to explain:

            If, in the opinion of the examiner, it is necessary for
            the formulation of an opinion as to sanity to discuss
            the circumstances of the alleged crime, defendant
            should cooperate in good faith. . . . [A]ny inculpatory
            statements made by defendant in this context are not
            competent as admissions on the issue of guilt, and
            when introduced at the trial during the course of the
            doctor's testimony, the jury must be told so
            immediately, explicitly, and unqualifiedly.

            [Id. at 21 (emphasis added).]




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      Whether the expert is testifying on behalf of the State or the defendant,

the rule is the same.        Jurors must be immediately instructed that the

substantive information defendant provided is to be used by them only to

assess the expert's opinion. It is not to be used as direct evidence of guilt.

      In State v. Granskie, 433 N.J. Super. 44, 56-57 (App. Div. 2013), we

reiterated the principle clearly enunciated in State v. King, 387 N.J. Super. 522

(App. Div. 2006), and the earlier cases. When a jury hears statements made by

a defendant to a psychological expert, "the jury must be cautioned not to

consider the defendant's statements for their truth." Granskie, 433 N.J. Super.

at 57.     In Granskie, we quoted King—if hearsay statements are properly

admitted because they are relied upon by an expert, "the expert's testimony

must be circumscribed by an appropriate limiting instruction." Ibid. (quoting

387 N.J. Super. at 549). "The jury must be instructed that they cannot consider

. . . interview statements for their truth." Id. at 58.

      The principle applies with equal force in this case. The State's expert

was charged with evaluating the merits of the defense, analogous to a State's

expert who is evaluating the merits of an insanity defense. In both cases, an

expert can describe to the jury the facts on which his opinion is based—but

only in order for the jury to determine what weight to give to the expert's

opinion.



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                                       II.

      The absence of a limiting instruction in this case was highly prejudicial

and amounts to plain error. Obviously, the expert could have expressed his

opinion, and recited the facts on which it was based, even those supplied by

defendant, without the prosecutor playing the tape at all. The prosecutor did

not proffer a reason the jury needed to hear the tape.

      Defendant's statements were patently used as direct evidence.          The

interview was not presented to the jury merely to establish the basis for the

expert's opinion that at the time of the brutal attack defendant was not under

the influence of synthetic marijuana, and to discount the notion that the use of

synthetic marijuana could cause aggressive behavior.      In the absence of a

limiting instruction, the jury would have used defendant's disclosures as direct

evidence nullifying his defense.

      The potential prejudice resulting from the lack of a limiting instruction

was compounded when the prosecutor argued in summation that when the

attack occurred, defendant was not under the influence of synthetic marijuana.

He did so, not based on the expert's conclusions or findings alone, but on

defendant's own words. The prosecutor stopped and started the tape, playing

selected portions to the jury, while discussing the information defendant

conveyed.   The prosecutor argued that the jury should rely on defendant's



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words—not the expert's conclusions—in order to reject the pathological

intoxication defense.

      In reality, the prosecutor had to elicit from the State's expert only that in

addition to defendant's medical records and the discovery in the case, the

expert relied on facts relayed by defendant during the four-hour interview.

The prosecutor could have then asked the expert for his opinion and had him

discuss the details upon which he relied.

      The court's failure to sua sponte give a limiting instruction was unduly

prejudicial and compounded the error that occurred when the tape was played

to the jury as direct evidence. The tape was damning evidence—defendant's

statements rambled, sounded confused, and included, among other things,

references to other bad acts, such as defendant's homicidal reaction to the sight

of a five-year-old at a family party. If playing the tape had a purpose other

than to prejudice the jury against defendant, we fail to see it.

                                        III.

      Which brings us to defendant's claim that his statement should not have

been admitted as evidence because it was improperly obtained, was

uncounseled, and the expert did not re-Mirandize him.              Defendant also

contends the State should not have been permitted to conduct the interview at

all since he was not raising insanity or diminished capacity.        See State v.



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                                        14
Myers, 239 N.J. Super. 158, 169-70 (App. Div. 1990). We do not agree that

such interviews are barred except when those two defenses are raised, see id.

at 169, but it is not necessary for the issue to be addressed in this appeal. It

seems self-evident that defendant raised a mental status defense that required

him to submit to an interview by the State's expert. See id. at 170. Arguably,

by raising the mental status defense, a defendant is effectively waiving his

right to remain silent.

      A defendant does not have the right to active representation during an

interview by a state's expert as to mental status defenses. Counsel is permitted

to be present only for observational purposes, not as a participant. See State v.

Obstein, 52 N.J. 516, 530-31 (1968); Whitlow, 45 N.J. at 27-28.

      We cannot discern from the record the circumstances of the interview

with regard to defendant's attorney. We assume, but it is an assumption only,

that he was given notice but elected not to be present.

      Miranda is ordinarily inapplicable when defendants are interviewed by

the State's psychiatric or psychological experts. See Whitlow, 45 N.J. at 16-

17. The rationale is fair, however, because the statements are being elicited

not to establish culpability, but only to enable the expert to formulate his or

her opinion, and jurors will be told they cannot use the statements as direct

evidence. Ibid. Ordinarily, in cases in which a defendant raises a mental



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status defense, he is not disputing that he committed the act—he is disputing

that he had the mens rea to be held criminally accountable for it.

      In this case, however, defendant's recorded statements were used to

directly bolster the State's case, disprove the defense, and convict defendant.

The logic behind the inapplicability of Miranda to this kind of interview

unravels in this case because of the manner in which the statements were used.

Miranda may have been violated—but ultimately that issue too need not be

reached.

                                       IV.

      During the retrial of this matter, should the State wish to play the taped

interview, the trial court must conduct a hearing regarding the justification for

admission of otherwise seemingly inadmissible hearsay.            There may be

legitimate reasons for playing the tape to the jury, but they need to be carefully

scrutinized before the trial judge decides the question.

      Reversed.




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