SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-2007-97T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RALPH A. RASO,
Defendant-Appellant.
_________________________________________
Submitted February 24, 1999 - Decided March 17, 1999
Before Judges Conley, Kimmelman and Lefelt.
On appeal from the Superior Court of New Jersey,
Law Division, Ocean County.
Ivelisse Torres, Public Defender, attorney for the
appellant (Claire Drugach, Assistant Deputy Public
Defender, of counsel and on the brief).
Peter Verniero, Attorney General of New Jersey,
attorney for respondent (Jordana Jakubovic, Deputy
Attorney General, of counsel and on the brief).
The opinion of the court was delivered by
CONLEY, J.A.D.
Following a jury trial, defendant was convicted of knowing
or purposeful murder, N.J.S.A. 2C:11-3a(1), (2) (count one), and
possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d
(count two). Count two was merged into count one and a life
sentence with a thirty-year disqualifier was imposed, along with
the necessary fines and penalties. On appeal defendant raises a
number of issues including the contention that "introduction into
evidence of unsubstantiated and unreliable expert testimony by
Dr. Alvin Krass was prejudicial error and requires reversal of
defendant's conviction." We agree and conclude that this error
alone requires a reversal. We do not, therefore, consider
defendant's other contentions.
The convictions arose from the killing of Joanne Turek, with whom defendant had had a long term relationship. Defendant, who has a history of psychiatric problems, admitted to the killing, but asserted diminished capacity as a defense. Here are the critical facts.
Defendant lived with the victim for approximately ten years prior to September 8, 1996 when he killed her. Two weeks before that date, the victim had asked him to leave. Defendant was upset by this rejection and made several attempts to reconcile with her. There was also an apparent suicide attempt which the State asserted was feigned. During the two weeks before September 8, defendant's behavior deteriorated as he became increasingly agitated and angry about the ending of his relationship with the victim. By September 7, 1997, the day before the murder, defendant was described as "distraught" and "in a daze." There was evidence to suggest that at that time he was taking substantial amounts of Prozac.
On September 8, 1997, defendant went to the victim's residence at or around 8:30 a.m. for the purpose of retrieving some of his belongings. In a statement given shortly after the killing, defendant related that after unsuccessfully pleading with her to take him back, he "just went bananas." He reached under a nearby small table and grabbed a knife that had been stored there, repeatedly stabbed her, inflicting a total of eighty-one stab wounds to her back, torso and arms. Still wearing his bloody clothes, he went to the police station and confessed, saying "I went berserk" and "I lost it. I did it." A taped formal interrogation then occurred.
As we have indicated, defendant's defense at trial was diminished capacity. In support of this, he presented two expert witnesses. The first expert was Dr. Azariah Eshkenazi, a forensic psychologist. It was his opinion, within a reasonable degree of medical certainty, that prior to the killing, defendant's mental state was "one of depression, severe with agitation, in addition to obsessive compulsive disorder." That conclusion was based on the doctor's interview with defendant and his review of, among other materials, defendant's taped confession, reports from his former psychologist and discussions with his former wife. The doctor also discussed the effects of the medication Prozac, large doses of which had been prescribed to defendant for his depression. Dr. Eshkenazi opined that Prozac, which acts as a stimulant and can cause agitation and psychosis,See footnote 1 had the effect of increasing defendant's already extreme emotional disturbance. The doctor's ultimate conclusion was that, based on his review of the case and attendant diagnosis, defendant was in a highly distressed state of mind at the time of the killing and his ability to act knowingly and purposely was seriously affected.
Defendant's next expert, Dr. Edward Dougherty, was an expert in the field of forensic neuropsychology. Dr. Dougherty saw defendant a total of eleven hours during three sessions on September 16, 1996, November 25, 1996 and in January 1997. The doctor recounted as significant facts that defendant, then fifty-one years old, was a twelfth grade dropout, his mother died when he was eleven and he had a failed marriage. At the time of the first interview, a little more than two weeks after the killing, defendant was agitated, disheveled, not focused and was confused as to which medications he had been taking, at first indicating Zanax and then both Zanax and Prozac. During the first interview, defendant recalled going to see the victim and having a brief conversation about wanting to come back. He recalled going into the bathroom for a while and then recalled getting into his van, driving down the street "seeing blood, going back, thinking he had a dream, going back to the apartment of the victim, going in and seeing he killed - or that she was dead and covered with blood . . . he kissed her . . . left - closed the bedroom door, saw the victim's son, said he was going to get bagels and drove to the police station. . . ." During the two other interviews "he started putting the pieces of the puzzle together." During the second interview, defendant recalled picking up a knife, but could not then recall what happened. By the time of the third interview, defendant knew that he had stabbed the victim, but did not know how many times. Dr. Dougherty then explained:
The critical thing [at that point] for me to do is try to say is he playing games with me, just selectively recalling certain events to see what my reaction would be, and I ruled that out because there was just too much specificity in certain parts of the events. And my clinical opinion, dealing with people that have memory problems, that's what I had specialized in, we have a thing called confabulation where basically you -- like if you were really drunk, you got home, you weren't sure how you got there, you assumed you got in your car, your car is in the driveway, sleeping in your own bed. So many times you have periods you don't remember exactly what you did, you said I got in the car and drove home and got into bed. You tell yourselves lies to confabulate what had happened. I tried to figure out what is going on with this? What is this personality? Who is Ralph Raso? I had to do a number of psychological tests to try to pin down who the aspect of this person was.
The doctor first performed two intelligence tests and found a
"big" discrepancy between the verbal and the "matrices" or
abstract portions of the first. He observed "there's a first red
flag, there's a discrepancy between verbal and intelligence.
There could be something else going on, an initial sign of,
perhaps, a neurological problem." He performed another, similar
test, and still found discrepancies "so [the doctor was] left
with this dilemma of why, with the history of a person that at
times worked for himself, had such discrepancies and scores and
[he] had to do some further searching."
An important test that he performed was the Bender Gestalt
Test, first developed in 1938. As described by the doctor,
"[i]t's a series of drawings. Basically, there's been a scoring
technique developed over the last ten years based upon research,
the basis of the testing and screening for organic brain damage."
The test meets American Psychological Testing standards.
As to defendant's drawings, the doctor said:
By 11 years of age, you should be able
to complete them all without errors. I found
that Mr. Raso could not complete the drawings
as well as he should if everything was
intact. He received approximately six errors
which is another sign of organic brain
dysfunction. Doesn't mean he's totally out
of it but something is not functioning
totally correctly in terms of his
neurological functioning.
In explaining this to the jury, the doctor demonstrated from the
Bender Gestalt Screening for Brain Dysfunction literature the
drawings that a neurologically normal person should be able to do
by age 11 and compared defendant's drawings to the standard
drawings. He related:
The brain behavior relationship is how you
perceive things, how you hold them in your
mind. These are presented on cards, no time
limit. He can see the cards the entire time.
We also have a history of Mr. Raso being
rather compulsive and being rather obsessive.
I expected him to be a very careful drawing.
These are less actual drawings. I'll show
you what the specifics are. The problems
with his drawings, if you'll note, these are
dots, not circles, not loops. This was an
angulation problem, angled this way, not
angled. He repeatedly used loops and circles
instead of dots. After he was introduced to
circles on the second drawing, that's a
problem called perseveration. Perseveration,
your stimulus bound, you cue into something
you cannot get away from it.
With young children, they start drawing
a circle and drawing a circle with adults,
it's more -- they can repeat the same thing
when the stimulus is changed from circle to a
dot. The closure problem is these are
suppose to touch. This is suppose to be
discreet, angle that is not there. This
overlapping is not . . . There are nine
drawings. Total placement is not that
critical, however, this is all in a very
disorganized manner. Someone very obsessive
would put them in order, number them many
times. That wasn't there. That's just a
clinical assessment of his behavior at the
time. This drawing basically should be a
diamond and touching, very important they
touch. . . .
It's showing lack of closure, showing he
didn't perceive that's what's suppose to be
done. The most significant ones are the
perseveration, repeating during the loops and
circles rather than the dots. This is
disconnect angle, no angle here, called
angulation. You could see the Gestalt, the
whole figure. When you have different types
of minimal brain damage, you don't see the
whole picture, you see parts. That's
basically what this is measuring.
After performing a few more tests, the doctor concluded that
they showed evidence of neurological damage and evidence of a
serious personality problem and further concluded that defendant
suffered from organic brain impairment and a borderline
personality disorder as defined in the American Psychiatric
Association diagnostic manual. In response to a question about
the significance of defendant's conduct immediately after the
killing in going to the police station in his blood covered
clothes, the doctor observed:
Two things: Number one, he went to
the police directly. He was in
this taped interview. He was
there. I took into consideration
how he talked. I took into
consideration the facts of the case
as presented through discovery
materials, when he came to police
station he was covered in blood.
Q. What significance does that have?
A. Quite a bit out of the context as
we saw the history of Mr. Raso,
that basically he was a very
meticulous man, very obsessive. He
organized his clothing in certain
ways, very concerned about looking
good. Totally out of character.
He was described by the couple,
they thought it was paint on him,
red specks throughout what he was
wearing, all over his clothing and
on his . . . I think they said on
his body in the police report. So
he was covered with blood, and
that's quite out of character for
somebody that has obsessive and
compulsive activities about their
cleanliness.
Q. How would you expect a compulsive
obsessive person to act?
A. When their faculties are intact and
modus operandi, I would expect them
to change their clothes, clean
themselves up. They're always
concerned about how they present
themselves. That's one of Ralph's
things. We know that he spent a
tremendous amount of time to
maintain the perfect tan and look
just right, this was totally out of
character.
Dr. Dougherty ultimately concluded that at the time of the
killing, defendant's mental state had deteriorated to a temporary
psychotic state and that he had "totally broke[n] down."
The State presented three experts in response. Two of them,
Dr. Kenneth Weiss and Dr. John R. Motley, reviewed the medical
evidence and examined defendant, reaching the conclusion that at
the time of the killing defendant was acting purposefully and
knowingly. Doctor Motley, however, agreed that defendant
suffered from an obsessive compulsive disorder and a borderline
personality disorder.
The third doctor, Dr. Krass, specifically addressed Dr.
Dougherty's test evaluations, disagreeing with some of the
conclusions. In this respect, the doctor testified:
Q. Now, have you evaluated the testing
that was provided to you by Dr.
Dougherty?
A. Yes. I looked through his findings
and then tried to make my own
judgment.
Q. Did you review the Bender Gestalt
drawings?
A. Yes.
Q. Of Mr. Raso?
A. Yes.
Q. Did you review the figure that he
drew?
A. Yes.
Q. Anything else that he noted or
responded in either questions or in
drawings?
A. Yes. I looked through all of the
material.
Q. Do you have an opinion based on
that as to whether there is any
neurological impairment of any kind
as reflected in those particular
tests?
A. In my opinion Mr. Raso's Bender
Gestalt drawings are normal. They
are not in my opinion in any way
indicative of perceptual impairment
similar to that obtained from
persons known to be brain-damaged.
The doctor did not limit his opinion to a comparison of
defendant's drawings against the accepted Bender Gestalt
standards. In response to the prosecutor's question "[c]an you
expand on that," the doctor continued:
A. Yes. I think everybody must have
seen these drawings that Raso gave.
I brought the results of somebody
that I saw who is known to be
mildly brain-damaged who is
administered this test to show the
difference.
[Defense counsel]: Judge, I object to that.
We have no idea. This could be from a person
with total neurological impairment. For him
to make that --
THE COURT: He said "mildly neurological
impaired," and I will allow counsel to cross-examine him in that regard. He's attempting
to compare before the jury what was drawn by
Mr. Raso from which Dr. Dougherty drew
certain conclusions to others which he has.
I'm going to allow it.
[Defense counsel] Judge, just for the
record, the prosecutor didn't furnish any of
this to me.
A. This is the drawing of a young man
who attended school, could read,
had problems in perception and was
known as a little child to have
suffered high fevers with resulting
neurological impairment. As you
can see, the drawings have certain
characteristic changes in their
output compared to the designs
themselves and compared to Mr.
Raso's performance.
[Prosecutor] Can we mark this [drawings of
unknown individual] for identification?
THE COURT: S-61.
(Document described above marked State's
Exhibit S-61 for identification.)
Q. Would you be able to take that and
just walk in front of the jury, so
that they can get a little clearer
picture of what it is that you're
talking about?
A. Let me show you.
Q. Just slowly walk a section off the
jury and then -- okay, sir. Thank
you.
A. Could I make a comment?
Q. Yes, sir.
A. If somebody were profoundly
neurologically impaired, they
couldn't draw the designs at all.
They would be profoundly screwed
up.
THE COURT: I like that, layman's term, the
only thing I have understood.
THE WITNESS: Sorry, Your Honor.
A. Some of the characteristic defects
in this, which are common to
neurologically impaired people, is
the fact that even though there are
eleven dots in the presented card,
[the unknown person] just draws a
whole series of dots right across
the paper, That's called
perservation. Once [the unknown
person] starts doing something he
loses sight of what the limits of
the job ought to be. That's a very
characteristic problem with people
who are neurological impaired.
[The unknown person] can't get the
connection between the design in
the right order. This little
sought [sic] of curved doohickey
should be at the corner of the
rectangle, and he gets it up in the
middle. When [the unknown person]
has to draw little tiny circles, he
starts by making dots and then
gets, you know, changes and is
really unable to correct himself.
One of the characteristics of
people who are not brain-damaged or
neurologically impaired, that is,
when they make an error they see it
and correct it. People who are
neurologically impaired know that
they've make an error, but then
can't fix it. They don't know what
to do to fix it, and that's one of
the characteristic symptoms of
neurological impairment. The other
last comment I'd make is in terms
of direction. Neurologically
impaired people can't smoothly go
from left to right. They sometimes
don't know their left from their
right. If you tell them, kick
something with their left foot,
they have to think for a moment,
what is their left foot. They
can't just do it automatically.
They have to change directions.
They may move to the right, think
about it, try to move to the left,
but keep moving to the right and
then make a move to the left. We
do see that in this [unknown]
person's drawings, but don't see
that in the drawings performed by
the defendant.
[Emphasis added.]
After demonstrating the drawings of the unknown allegedly "mildly
brain damaged" person, the doctor compared defendant's Bender
Gestalt test, not against the recognized approved standards
contained in the Bender Gestalt literature, but rather against
the unknown person and then against "your general average
functioning adult," and was asked by the prosecutor "[w]ould you
expect any of us to perform any better on that test than
[defendant] did?" The doctor responded "no."
At the outset, we recognize that the entire focus of the jury's inquiry was the diminished capacity issue upon which the jury had the benefit of expert evidence from both sides. The witnesses did not necessarily disagree that defendant had some psychological deficits, but sharply disagreed as to whether those deficits impaired his ability, at the time of the killing and under the attendant circumstances, to act purposefully or knowingly. The battle, then, was a choice of the experts, the primary choice, we think, being Dr. Dougherty or Dr. Krass. At the least, the testimony of these two witnesses could have been dispositive, depending upon which one the jury accepted. There were, of course, a number of factors, including defendant's own conduct and statements at the time of the killing and shortly before, that were important. But critical to the choice of the experts was the jury's consideration of the evidence each of these doctors presented on defendant's performance of the neurological tests. Significant among the various tests was the Bender Gestalt Test.
Dr. Dougherty and Dr. Krass, using the results of the tests performed by Dougherty, opined at some length on those results. Dr. Dougherty was convinced that defendant's results were abnormal and Dr. Krass was convinced they were not. Were their differing views based solely upon each one's analysis of defendant's drawings compared to the accepted Bender Gestalt standards, there would be no issue here.
They were not. As we have set forth in our recitation of the evidence, the State's expert, Dr. Krass, over the objection of defendant, brought to court and demonstrated to the jury the drawings, and test results, of an unknown individual who, he asserted, was "mildly brain-damaged." Using not the Bender Gestalt standards but these drawings, Krass offered his opinion that defendant's drawings were normal as compared to those of the unknown individual. Indeed, not only did Dr. Krass utilize this unknown person as a standard of comparison, but he, through the questions of counsel, asserted that defendant's drawings were as good as either the prosecutor or the jurors could produce.
Thus viewed, we think the conclusion that this aspect of Krass' testimony was improperly admitted scarcely needs citation. To begin with, the use of the unknown individual as a standard sharply compromises defendant's sixth amendment ability to cross-examine the doctor. See generally State v. Harvey, 151 N.J. 117, 187-88 (1997). While N.J.R.E. 703 does permit an expert to utilize hearsay data where it is the type reasonably relied upon by others in the field, it is not a rule of wholesale admissibility of otherwise inadmissible evidence. See State v. Rose, 112 N.J. 454, 499-501, 517 (1988); State v. Burris, 298 N.J. Super. 505, 512 (App. Div.), certif. denied, 152 N.J. 187 (1997); Day v. Lorenc, 296 N.J. Super. 262, 267 (App. Div. 1996); State v. Pasterick, 285 N.J. Super. 607, 620-21 (App. Div. 1995). Dr. Krass proffered no evidence whatsoever that in the field of forensic psychology, an unknown individual's Bender Gestalt test results is data reasonably relied upon to determine whether a particular defendant's results are normal.
Perhaps more importantly, one of the criteria under N.J.R.E. 702 for the admissibility of expert testimony is that the testimony be based on "reasonably reliable scientific premises." State v. Cavallo, 88 N.J. 508, 516-526 (1982) (rapist profile inadmissible as scientifically unreliable). See State v. W.L., 278 N.J. Super. 295, 304 (App. Div. 1995); State v. Michaels, 264 N.J. Super. 579, 616-619 (App. Div. 1993), aff'd, 136 N.J. 299 (1994). The reliability of a scientific methodology may be established by 1) expert testimony as to its general acceptance and reliability, 2) authoritative scientific and legal writings, or 3) judicial opinions. E.g. State v. Kelly, 97 N.J. 178, 210 (1984). And, we take note that admissibility of all evidence, particularly scientific evidence being used in a criminal proceeding, must be "clearly established." State v. Haskins, 131 N.J. 643, 649 (1993); State v. Cary, 99 N.J. Super. 323, 333 (Law. Div. 1968), aff'd, 56 N.J. 16 (1970) ("[t]he need for a high degree of scientific acceptance, and particularly reliability, is vital when a criminal case is involved where the individual's freedom or, in fact, his life may be at stake."). See State v. Fortin, ___ N.J. Super. ___, ___ (App. Div. 1999) (slip op. at 42) (in murder trial, linkage-analysis methodology of identifying defendant as the murderer based upon a comparison of one other crime committed by him not scientifically reliable). Contrast State v. Clowney, 299 N.J. Super. 1, 19-20 (App. Div.), certif. denied, 151 N.J. 77 (1997) (on cross-examination of defendant's diminished capacity expert witness, prosecutor's questions incorporating rapist profile traits, not disagreed with by the expert, was proper cross-examination and not substantive proffer of rapist profile methodology).
Here, to be sure, the Bender Gestalt Test and standard of comparison used by Dr. Dougherty is an established reliable methodology for determining whether a particular individual exhibits signs of neurological impairment. But the critical question is whether Dr. Krass' use of the unknown individual's results of that test as a standard to measure defendant's results against, and as an indication of whether defendant suffered from a neurological impairment, was established as reliable. Clearly it was not; no effort whatsoever was made to do so. Unlike Dr. Dougherty's testimony as to the use of the Bender Gestalt Test and comparison standards established by the accepted literature, Dr. Krass offered no evidence that his quite different comparison of the unknown individual's results against defendant's results was a scientifically accepted method of determining whether the defendant suffered from some neurological disorder. Neither has the State proffered any independent literature or case law to establish the reliability of such method.
We are not persuaded by the State's argument that Dr. Krass "was not promoting some sophisticated and untested scientific methodology" that would require "a special inquiry as to its reliability." Whether characterized as sophisticated or complex, the comparison of one's Bender Gestalt drawings against another's is just as much beyond the ordinary knowledge of jurors as is the comparison of fingerprints. The difference, of course, is that the methodology involved in the latter has long been established. And compare State v. Haskins, supra, 131 N.J. at 645 (scientific evidence in the form of a measuring tape used to measure distance of drug transaction from a school was admissible even though not shown to be accurate because the "subject matter of such measurements is within the common knowledge and experience of jurors"); State v. Carroll, 256 N.J. Super. 575, 597-98 (App. Div.), certif. denied, 130 N.J. 18 (1992) (jury may compare a known sample of defendant's handwriting with the handwriting on a contested document without expert testimony).
Alternatively, the State contends that the use of the unknown person's test results was not as substantive evidence, but simply as "illustrative" or "demonstrative" evidence. And it has been observed that "[t]here is nothing inherently improper in the use of demonstrative or illustrative evidence." State v. Scherzer, 301 N.J. Super. 363, 434 (App. Div.), certif. denied, 151 N.J. 466 (1997). See State v. Feaster, 156 N.J. 1, 82 (1998). Demonstrative or illustrative evidence may be evidence that replicates or illustrates certain aspects of a crime scene. E.g. id. at 83 (use of mannequin with a knitting needle inserted in head to show trajectory of bullets through victim's head); State v. Mayberry, 52 N.J. 413, 435-36 (1968), cert. denied, 393 U.S. 1043, 89 S. Ct. 673, 21 L. Ed.2d 593 (1969) (admission of a gun "very similar" to unrecovered murder weapon); State v. Scherzer, supra, 301 N.J. Super. at 434 (admission of a bat and broom the victim identified as similar to bat and broom used during the sexual assault upon her). We do not view the evidence here as merely demonstrative or illustrative. It was substantive evidence to establish that defendant was not neurologically impaired.
Finally, we reject the State's contention that the evidence was relevant only insofar as it concerned Dr. Krass' credibility. The quick answer to that is, were that so, defendant clearly was substantially hampered in his ability to cross-examine any aspect of the unknown nature of the person who took the test. All that was offered was the doctor's hearsay assertions of the characteristics of this person. Since the comparison was not contained in the doctor's report, defendant had no ability to obtain any factual data to effectively cross-examine the doctor as to this. Moreover, as we have said, this was not just credibility evidence. It is quite clear that the unknown person's test results were offered as independent proof that defendant was not neurologically damaged.
The admission of this aspect of Dr. Krass' expert testimony, then, was erroneous. We are convinced, moreover, that the evidence was such as to have been clearly capable of producing an unjust result, that is that there is a reasonable possibility that the error contributed to the verdict. R. 2:10-2; State v. Macon, 57 N.J. 325, 337-39 (1971).
In this respect, we certainly cannot say that the State's experts were any more or less persuasive than defendant's experts. Neither can we ignore some of the factual circumstances of the incident itself that would suggest defendant was not in his right mind at the time. The infliction of eighty-one stab wounds alone, coupled with the rather bizarre conduct of walking away from the body in bloody clothes and telling the victim's son he was going for bagels, would raise questions. There was, also, the evidence of defendant's agitated state just before the incident and, a juror could conclude, heavy intake of Prozac. Moreover, as we have said there was no real disagreement that defendant did suffer from a psychiatric or psychological condition. To be sure, defendant's immediate actions and statements, partially relied on by the State's witnesses, were indicative of some awareness and consciousness. But we cannot say that a jury would have accepted the evidence supporting the opinion that defendant was acting knowingly or purposefully were Dr. Krass' objectionable evidence to be disregarded. We have no idea what role that evidence actually played in the jury's evaluation, but it was a substantial part of his testimony and, as we have said, the battle of the experts was largely waged between Dr. Dougherty and Dr. Krass. Under these circumstances, we are convinced the error was not harmless.
Reversed and remanded for a new trial consistent with this opinion.
Footnote: 1The doctor described psychosis as becoming "totally detached from reality . . . hearing voices, seeing things. . . thought processes are racing, the thoughts are coming in your mind faster than you can express them, you cannot think very clearly. . . ."