                             RECORD IMPOUNDED

                        NOT FOR PUBLICATION WITHOUT THE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-1076-16T2

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

EUGENE C. TAYLOR,

        Defendant-Appellant.


              Argued May 17, 2017 – Decided July 24, 2017

              Before Judges Alvarez, Accurso, and Lisa.

              On appeal from the Superior Court of New
              Jersey, Law Division, Burlington County,
              Indictment No. 15-10-1164.

              Daniella Gordon argued the cause for appellant
              (The Gordon Law Firm, and Barry J. Pollack
              (Miller & Chevalier, Chartered) of the
              District of Columbia bar, admitted pro hac
              vice, attorneys; Ms. Gordon and Mr. Pollack,
              on the briefs).

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

      On leave granted, defendant Eugene Taylor appeals from the

March 7, 2016 denial of his motion to dismiss a superseding

indictment    charging    him     with   first-degree      attempted   murder,

N.J.S.A. 2C:11-3(a)(1); first-degree disarming a law enforcement

officer, N.J.S.A. 2C:12-11(a); second-degree aggravated assault,

N.J.S.A. 2C:12-1(b)(1); third-degree terroristic threats, N.J.S.A.

2C:12-3(b);    third-degree        resisting     arrest,    N.J.S.A.    2C:29-

2(a)(3)(a); third-degree aggravated assault on a law enforcement

officer, N.J.S.A. 2C:12-1(b)(5)(a); and fourth-degree obstructing

the   administration     of    law,   N.J.S.A.   2C:29-1(a).     Defendant's

subsequent motion for reconsideration was also denied.             Defendant

had argued in support of his applications that evidence of his

psychiatric state at the time of the incident in question was

clearly exculpatory and thus the State should have presented it

to the grand jury.        For the reasons stated in Judge Delehey's

written opinion of March 7, 2016, we affirm both orders.               We add

some brief comments.

      The charges arose when during the early morning hours of May

14, 2013, police were called about a man out in the street who was

yelling about Jesus.          Delanco Township Police Department Officer

Frank Ambrifi responded.           When he arrived, defendant jumped in


                                         2                             A-1076-16T2
front of the police car, and the officer nearly struck him.

Defendant appeared angry, and even at gunpoint he refused to get

down on the ground. When Ambrifi got out of his vehicle, defendant

ran towards him. Ambrifi sprayed defendant with mace twice without

success, and began to strike defendant with a flashlight to try

to subdue him.       Defendant head-butted the officer.                The two men

struggled to the ground, and Ambrifi shot defendant four times.

Defendant continued to attack the officer, who also shot himself

in the leg as the men wrestled for control of Ambrifi's gun.                      When

backup arrived, defendant was taken to a hospital, and later to

the   Ann    Klein   Forensic   Center       where    he    was       diagnosed    as

schizophrenic.

      During the grand jury presentation, the officer who testified

regarding his interviews about the event also testified about his

interviews    with   defendant's   friends      and    family.          Defendant's

acquaintances said that in the days leading up to the incident,

defendant became obsessed with religion and death.

      Prior to the grand jury presentation, defendant was examined

by a forensic psychologist, who opined that defendant had been

suffering from paranoid schizophrenia at the time of the incident,

and   was   unable   to   understand   the    nature       of   his    conduct,    or

distinguish right from wrong.      That report, as well as the records



                                       3                                    A-1076-16T2
from defendant's hospitalization at Ann Klein, were available when

the case was presented to the grand jury.

     In his written decision, Judge Delehey first distinguishes

the insanity defense from a mental disease or defect that results

in diminished capacity.     As he put it, the insanity defense "does

not exculpate, but rather excuses a person's conduct.        Diminished

capacity, however, negates a finding of purposeful or knowing

conduct."   The judge agreed with the well-established proposition

that pursuant to State v. Hogan, 144 N.J. 216 (1996), the State

had to present clearly exculpatory       evidence.    He did not agree,

however,    that   a   defendant's   mental   state   constituted   such

evidence.

     Judge Delehey reasoned that a grand jury may either indict

or hand down a no bill, while a petit jury can find a defendant

guilty, acquit, or find a defendant not guilty by reason of

insanity.   When diminished capacity is raised as a defense, a jury

has the options of finding a defendant either guilty or not guilty

if he or she lacked the requisite mental state.         The grand jury

process is nothing more than a prosecutor obtaining "the permission

of the grand jury to put the matter before a petit jury for its

determination . . . ."         The affirmative defense of insanity

requires a petit jury's resolution after both sides have the

opportunity to retain experts, marshal the evidence, and cross-

                                     4                          A-1076-16T2
examine the experts on these issues.     The defense of diminished

capacity also requires a trial, with similar opportunities to

develop the defense.     Both are affirmative defenses pled after

indictment, therefore the prosecutor had no obligation to present

any evidence of defendant's mental condition.    This evidence was

not clearly exculpatory, but rather pertained only to affirmative

defenses, which "can be pled only after indictment.    Insanity and

diminished capacity are affirmative defenses . . . .    Resolution

of affirmative defenses before the grand jury would convert it to

an adjudicating body rather than an accusatory one."

     The judge also denied the motion for reconsideration, on the

same basis.    On appeal, defendant raises the following points:

          I.    The Lower Court Erred by Not Dismissing
                the Superseding Indictment Based on the
                State's Failure to Disclose to the Grand
                Jury Exculpatory Evidence and to Provide
                Appropriate Legal Instructions []

                A.   The State Violated Its Duty to
                Disclose Clearly Exculpatory Evidence to
                the Grand Jury []

                B.   The State Violated Its Duty to
                Provide the Grand Jury Relevant Legal
                Instructions []

                C.   The Trial Court's Rationales for Not
                Dismissing the Superseding Indictment
                Are Inconsistent with Binding Appellate
                Precedent []

                     1.   The trial court was wrong to
                     conclude the State had no duty to

                                 5                          A-1076-16T2
     present evidence of, or legal
     instructions     pertaining    to,
     diminished capacity and insanity
     merely because those defenses must
     be pled after indictment []

           a.   The prosecutorial duty
           imposed by Benny Hogan applies
           to   evidence   supporting   a
           diminished capacity defense []

           b.   The prosecutorial duty
           imposed by John Hogan applies
           to     evidence     supporting
           diminished    capacity     and
           insanity defenses []

     2.   Allowing the grand jury to
     consider evidence of diminished
     capacity and insanity would not have
     improperly transformed it into an
     adjudicating body []

     3.   The trial court erred in
     concluding that inviting the grand
     jury to consider the issue of
     insanity would run afoul of the
     State's involuntary commitment laws
     []

     4.   The court wrongly concluded
     that the State had no duty to
     disclose Dr. Hugonnet's findings to
     the grand jury []

D.   The State's arguments in support of
the trial court's ruling are unavailing
[]

     1.   The State wrongly asserts it
     had   no  duty   to  disclose Dr.
     Hugonnet's report []

     2.    The State's concerns regarding
     the   admissibility of diminished

                  6                         A-1076-16T2
                        capacity    evidence     and     the
                        defendant's   burden   of    proving
                        insanity at trial are misplaced []

           II.    The Superseding Indictment         Should   Be
                  Dismissed with Prejudice []

These arguments repeat those made to Judge Delehey, and are equally

unavailing.

     A trial court's decision denying a motion to dismiss an

indictment is reviewed for abuse of discretion. State v. Saavedra,

222 N.J. 39, 55 (2015).         Viewing the evidence and the rational

inferences therefrom in a light most favorable to the State, we

determine "whether the trial court abused its discretion when it

found that the State presented evidence sufficient to establish a

prima facie case on the elements of the relevant offenses," and

when it found the State "did not withhold exculpatory evidence

from the grand jury or fail to present to the grand jury a defense

. . . that should have been presented."             Id. at 57.       However,

"[i]t is not the role of the reviewing court to question the

strength   of    the   case,   its   possible   deterrent   value,    or   the

government's enforcement priorities."           State v. L.D., 444 N.J.

Super. 45, 54 (App. Div. 2016)(citing State v. Perry, 124 N.J.

128, 168 (1991)).

     We see no abuse of discretion in Judge Delehey's opinion,

which is grounded in the clear distinction between the grand jury


                                       7                              A-1076-16T2
process and the petit jury system.           The State is required to

present exculpatory evidence to a grand jury only "in the rare

case in which . . . evidence . . . both directly negates the guilt

of the accused and is clearly exculpatory."          Saavedra, supra, 222

N.J. at 63 (emphasis in original) (quoting Hogan, supra, 144 N.J.

at 237). Evidence "directly negates" a defendant's guilt where it

"squarely refute[s] an element of the crime."          Ibid.     Determining

whether evidence is "clearly exculpatory" requires it "to be

analyzed 'in the context of the nature and source of the evidence,

and the strength of the State's case.'"            State v. Scherzer, 301

N.J. Super. 363, 427 (App. Div. 1997) (quoting Hogan, supra, 144

N.J. at 237). Furthermore, this disclosure requirement does not

apply   unless   the   prosecutor   has   "actual     knowledge"    of    the

exculpatory evidence.     Saavedra, supra, 222 N.J. at 63.

     In Scherzer, the defendants argued the State failed to present

"clearly   exculpatory    evidence"     to   the     jury,   specifically,

testimony from two of defendants' experts.           Scherzer, supra, 301

N.J. Super. at 427. The experts would have refuted the mental

state of the victim as portrayed by the State.           Ibid.     If taken

as true, the testimony would have "directly negated an element of

the crime defendants were accused of."         Ibid.     However, because

presenting such testimony would have required the grand jury to



                                    8                                A-1076-16T2
make   a   "credibility    judgment,"     we   held   it   was   not     "clearly

exculpatory" and the State was not obligated to present it.                 Ibid.

       The parallel between the scenario in Scherzer and the one in

this case is quite clear.      In order to reach a decision, the grand

jury would have had to weigh the expert's credibility, thus

resulting in testimony that, if the jury had concluded it was not

credible, would not have been "clearly exculpatory." See Scherzer,

supra, 301 N.J. Super. at 427.          Thus the State had no obligation

to present the opinion evidence.

       Furthermore, there was no obligation for the jury to be

instructed    regarding    possible       defenses.        The   State    has     a

responsibility to instruct the jury on relevant defenses as a

"corollary    to   [the]    responsibility       to   present      exculpatory

evidence."    State v. Hogan, (John Hogan), 336 N.J. Super. 319, 341

(2001).    However, it is not the State's obligation to sift through

the record to make the determination as to when those instructions

are appropriate.     Id. at 343.        It is only when there are facts

that clearly establish the appropriateness of such an instruction,

not expert opinion, that an instruction has to be given.                  See id.

at 343-44.

       It is black letter law that the diminished capacity defense

is one considered a "failure of proof defense."             State v. Nataluk,

316 N.J. Super. 336, 343 (App. Div. 1998). Evidence of defendant's

                                      9                                   A-1076-16T2
mental health illness or mental defect negates the mens rea element

of the crime.    Ibid.    It must be established by a preponderance

of the evidence.   State v. Zola, 112 N.J. 384, 442-43 (1988).

     Clearly, the crimes with which defendant was charged required

a purposeful or knowing state of mind.     Evidence of mental illness

or defects can in some instances, obviously, negate the mens rea

necessary for the crime.       But, for example, a condition which

results in uncontrollable rage or lack of control would not, by

itself, negate a requisite mental condition such as knowledge or

purpose."   Nataluk, supra, 316 N.J. Super. at 344.

     Indeed, the New Jersey Supreme Court has stated that if a

mental condition "resulting in a rage and loss of control does not

affect cognitive capacity sufficient to preclude the necessary

mental state, it will not constitute diminished capacity." State

v. Galloway, 133 N.J. 631, 646-47 (1993)(emphasis in original).

The process by which a petit jury considers diminished capacity,

requires a trial, direct and cross-examination as well as expert

testimony at times.      A grand jury only determines whether a crime

has been committed and if a defendant probably committed it; it

is an accusatory not adjudicatory body.     Sherzer, supra, 301 N.J.

Super. at 427.   If defendant's argument is accepted, the function

of the grand jury would be completely distorted.      A grand jury's

only role is to decide whether a criminal proceeding should be

                                   10                         A-1076-16T2
commenced.   Ibid.   Therefore, no instruction was necessary, nor

should proof have been presented, regarding diminished capacity.

It would have distorted the jury's functioning, and would not have

clearly negated guilt.   See John Hogan, supra, 336 N.J. Super. at

343-44.

     The "insanity" defense is codified in N.J.S.A. 2C:4-1, which

provides that "[a] person is not criminally responsible for conduct

if at the time of such conduct he was laboring under such a defect

of reason, from disease of the mind as not to know the nature and

quality of the act he was doing, or if he did know it, that he did

not know what he was doing was wrong."      It is an "affirmative

defense which must be proved by a preponderance of the evidence."

Ibid.

     Unlike diminished capacity, the insanity defense does not

negate the mental elements of a crime, it affords a petit jury the

ability to return a verdict of "not guilty by reason of insanity,"

rather than "guilty" or "not guilty."     State v. Breakiron, 108

N.J. 591, 600 (1987).     A defendant who is found not guilty by

reason of insanity must be evaluated by the court in accordance

with N.J.S.A. 2C:4-8.    After the examination, if the court finds

that the "defendant cannot be released without supervision or

conditions without posing a danger to the community or to himself,

it shall commit the defendant to a mental health facility . . .

                                11                          A-1076-16T2
."   N.J.S.A. 2C:4-8(b).       Otherwise defendant is to be released.

Ibid.

     The legislative history of the insanity defense runs counter

to defendant's position.       The predecessor to N.J.S.A. 2C:4-8 was

N.J.S.A. 2A:163-3 (repealed 1979), which provided that "[i]f, upon

the trial of any indictment, the defense of insanity is pleaded .

. . the jury shall be required to find specially by their verdict

whether or not such person was insane at the time of the commission

of such offense . . . and . . . whether or not such insanity

continues . . . ."        (Emphasis added).       If the jury found the

defendant was and continued to be insane, the court was required

to order his commitment.       Ibid.     This statute was repealed after

the Court in State v. Krol, 68 N.J. 236, 255 (1975) held it

unconstitutional because it authorized "involuntary commitment

without proof of dangerousness."           However, the Court left the

preamble to the statute intact, which states that the insanity

defense is to be pleaded "upon the trial of any indictment," not

before the indictment.     Ibid.

     The   Court   in   Krol   detailed    the   procedure   for   temporary

commitment and evaluation of a defendant acquitted for insanity

that would later be codified in N.J.S.A. 2C:4-8. Id. at 255-265.

While N.J.S.A. 2C:4-8 begins "[a]fter acquittal by reason of

insanity" rather than "upon the trial of any indictment," the

                                    12                               A-1076-16T2
legislature was likely mirroring the language in Krol, which begins

describing the commitment process with "[f]ollowing acquittal by

reason of insanity . . . ."        Id. at 255.    The Court noted that

"courts   in   determining   [an   insane   defendant's]   dangerousness

should take full advantage of expert testimony presented by the

State and by defendant."     Id. at 261.    Since, as discussed above,

the State need not present defendant's or its own expert testimony

on insanity to a grand jury, the Court was obviously still only

contemplating the assertion of an insanity defense at trial after

indictment.     There is therefore no reason to believe that the

legislature meant for N.J.S.A. 2C:4-8 to broaden the defense so

it could be presented to a grand jury.

     Affirmed.




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