Expert hear could not testify where he did not perform tests
STATE OF NEW JERSEY,
Plaintiff-Appellant/
Cross-Respondent,
v.
MEGAN PLANK,
Defendant-Respondent/
Cross-Appellant.
___________________________________
Argued March 7, 2017 – Decided February 28, 2018
Before Judges Fisher, Ostrer and Leone.
On appeal from Superior Court of New Jersey,
Law Division, Union County, Indictment No. 10-
11-1145. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
DOCKET NO. A-1244-13T1
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
The opinion of the court was delivered by
OSTRER, J.A.D.
A jury found defendant Megan Plank guilty of distributing
heroin, which caused the deaths of Christopher Coppola and Sara
Malaker. The issue of causation was controversial, because Malaker
had health problems, and Coppola ingested other substances as well
as heroin. The State's key witness on causation, the county's new
medical examiner, relied on the victims' autopsies. But, he did
not perform, observe, or supervise them. The autopsies were the
work of his predecessor, who was living out of state by the time
of trial. On appeal, defendant principally argues the medical
examiner's testimony violated her constitutional right of
confrontation. We agree and reverse her convictions of two counts
of first-degree strict liability for causing drug-induced death.
N.J.S.A. 2C:35-9(a). However, we affirm her conviction of third-
degree distribution of heroin.
N.J.S.A. 2C:35-5(a)(1), -5(b)(3).
I.
Proof of defendant's heroin distribution was circumstantial.
The jury heard from no one who saw defendant possess or distribute
the drug. The State introduced a series of text messages between
defendant and Malaker in which, the State contended, the two agreed
2 A-1244-13T1
to meet to transfer the heroin, which they referred to only as
"it." According to the texts, defendant arranged to meet Malaker,
who was in a car with Coppola, at the house of "fat boy Jon" in
the Finderne section of Bridgewater. Malaker wanted to meet
elsewhere, but defendant declined, saying she did not want to
"drive with it." Malaker texted she felt uncomfortable "doing it"
in front of others, and asked if she could pull defendant aside
and "do this privately." Defendant agreed. The text messages
ended as Malaker approached her destination.
Malaker's mother testified her daughter and Coppola borrowed
her car shortly before defendant and Malaker texted. Cellphone
tower records showed that Malaker travelled in the evening rush
hour between her mother's home in Union County and Bridgewater.
Before the trip, Coppola withdrew $260 from an ATM. The State
argued Malaker used part of that to buy the heroin.
The next day, Malaker's mother found the lifeless bodies of
her daughter and Coppola in her daughter's bedroom. Coppola was
sprawled on the bed. Malaker was hunched over a trash basket.
There were heroin packets in the room — five empty and five full.
Coppola had only $165 in his wallet.
Although defendant did not testify, she relied on the second
of two recorded police interviews that the State introduced. In
the second interview – on the day of her arrest and almost a year
3 A-1244-13T1
after the deaths – she admitted she met Malaker at Fat Boy Jon's
house, but she thought Malaker wanted "weed." After Malaker
arrived and defendant realized she wanted heroin, defendant told
her she did not have it and she should get it elsewhere. The
defense suggested that Malaker may have obtained heroin from a
person she called repeatedly after she met defendant, or that
Coppola, who had a history of heroin abuse, may have already
possessed it.
The State challenged defendant's credibility. In her initial
statement, she denied any contact with Malaker or Coppola shortly
before their deaths. Even after she was confronted with the texts,
she denied making them, stating someone borrowed her phone while
she was at Fat Boy Jon's house. The State contended defendant and
Malaker expressed caution in their texts because their transaction
involved a more serious drug than marijuana. The State also argued
the numerous voice conversations between defendant and Malaker
made it unlikely that defendant misunderstood what Malaker wanted.
Shortly after the deaths, the county medical examiner at the
time, Zhongxue Hua, M.D., wrote in Coppola's and Malaker's autopsy
reports that the causes of death were "[p]ending further studies"
and their manner of death was "[p]ending investigation."
1 After
1
The reports stated the autopsies were performed the day after
the victims were found, but were signed nine days later.
4 A-1244-13T1
receiving toxicology reports from an outside laboratory, Dr. Hua
amended his autopsy reports with one-page addenda. He simply
stated that Coppola's cause of death was "[a]cute intoxication of
heroin, Xanax, Clonazepam and cannabinoids"; and that Malaker's
cause of death was "[a]cute morphine intoxication", and the
"contributory cause" was "[b]ronchial asthma." The manner of
death in both cases was "Accident."2
By the time of trial almost four years later, Junaid Shaikh,
M.D., had succeeded Dr. Hua as county medical examiner and
testified as to the cause of death. Although Dr. Hua was living
in New York, the State declined to call him as a witness, claiming
it was a matter of cost. Dr. Shaikh testified Dr. Hua had been
asked to leave his position, but did not elaborate about the
reasons.
Dr. Shaikh did not observe or supervise the autopsies, nor
did Dr. Hua consult with him. He explained that he reviewed the
case for the first time several months before the trial. He
reviewed Dr. Hua's autopsy reports; the autopsy photographs; Dr.
Hua's histopathology reports; the chief medical investigator's
2
Dr. Hua's autopsy reports were marked for identification, but
not introduced into evidence.
5 A-1244-13T1
Reports of Investigation by Medical Examiner (RIMEs);3 photographs
of Malaker and Coppola in the bedroom where Malaker's mother found
them; and the toxicology reports of the outside laboratory.4
In presenting his opinion, Dr. Shaikh repeated Dr. Hua's
gross findings and observations of Malaker and Coppola. Asked to
explain the internal examinations of the two victims, Dr. Shaikh
paraphrased for the jury Dr. Hua's findings as to each major body
area and system. He included Dr. Hua's findings that Malaker's
brain was swollen, there was mucous in the bronchi, and the lungs
were hyperinflated. In addition to Dr. Hua's findings, Dr. Shaikh
found independent evidence of lividity in Malaker from scene
photographs he reviewed.
Dr. Shaikh repeated Dr. Hua's findings in his histopathology
reports. In particular, Malaker had bronchial asthma, which was
consistent with Dr. Hua's gross findings regarding her lungs.
There were no significant histopathology findings regarding
Coppola. Notably, Dr. Shaikh criticized Dr. Hua's histopathology
reports as conclusory, explaining that he should have described
in detail what he observed on the slides. Yet, Dr. Shaikh did not
3
Although the chief medical investigator, Mark Bannworth, prepared
the RIMEs, Dr. Hua apparently reviewed them, as there are initials,
although indiscernible, on the "M.E." line.
4
The RIMEs, the toxicology reports, the histopathology reports,
and the autopsy photographs, were also marked for identification,
but not introduced into evidence.
6 A-1244-13T1
review those slides himself, and stated they contained no
information that affected the cause of death.
Dr. Shaikh reviewed the effect of heroin on the body, as well
as its interaction with bronchial asthma. He also discussed the
interaction of heroin, benzodiazepines and cannabinoids, with
respect to Coppola. Dr. Shaikh explained that heroin breaks down
in the body into a metabolite, 6-monoacetylmorphine or 6-MAM, and
then into free morphine. Both 6-MAM and free morphine were found
in Coppola, reflecting heroin use. Only free morphine was found
in Malaker, which could have come from heroin, or morphine itself
– Dr. Shaikh did not know. However, no morphine was found in the
bedroom where the victims died.
Dr. Shaikh testified that he "agree[d] with the finding" of
Dr. Hua that Malaker died of acute morphine intoxication, although
bronchial asthma contributed to her death. He stated that "[a]s
a routine practice, we use the drugs as the primary cause of death
and list any other contributory causes that might be there." Dr.
Shaikh noted that the amount of free morphine in Malaker's system
was .026 milligrams per liter, or 26 nanograms per milliliter, and
the toxic level was .5 milligrams per liter, roughly twenty times
that. He also conceded that Malaker had in her system less than
half the amount of a therapeutic dose of morphine. He added that
the toxic effect of certain drugs, including morphine, often
7 A-1244-13T1
depends on other factors personal to the drug user. He explained
that he viewed Malaker's bronchial asthma as an ongoing condition
and the morphine as a "triggering factor." He conceded that
Malaker's hyperinflated lung could have been a sign of a bronchial
asthma attack.
Dr. Shaikh also joined Dr. Hua's conclusion, quoted above,
regarding Coppola's cause of death. Dr. Shaikh reviewed the
quantities of other drugs in Coppola's system, and concluded:
"[W]hen there are multitudes of drug present in the system, it's
always appropriate as a convention of medical examiners that it
implicates all of them, as long as there are drugs that can cause
a person's demise. So, we use that as the cause of death . . . ."
He declined to opine as to the significance of the level of
drugs in Coppola's blood, stating repeatedly he was not a
toxicologist. However, he also stated that: "some of the levels
are high"; the free morphine in Coppola's system, .100 milligrams
per liter, which was roughly four times that of Malaker, was in
the toxic range (although he earlier had testified that the "usual
toxic level" was .5 milligrams); and the drugs in Coppola's system
had a synergistic effect. He agreed that the "combination of
the[] four drugs [in his system] . . . caused him to die" and he
could not say that "it was just the morphine."
8 A-1244-13T1
A forensic pathologist from the outside testing laboratory,
Wendy Adams, Ph.D., discussed the toxicology test results. She
conceded that the level of free morphine in Malaker's system was
below that found in people who received morphine therapeutically,
but that a person with less tolerance could succumb to lesser
quantities. She noted a study of two reported fatalities in which
free morphine levels were 70 and 350 nanograms per milliliter –
Coppola's level was 100 – but admitted that the two fatalities did
not describe a lethal range. She cited another study of eight
fatalities, in which the blood level was 360 nanograms per
milliliter. She also opined that the benzodiazepines in Coppola's
system were within or below therapeutic levels. She agreed that
use of the cited ranges was an insufficient basis to determine
cause of death in a particular person. Contrary to Dr. Shaikh,
she asserted that the drugs in Coppola's system had an additive –
as opposed to a synergistic – effect.
The sole witness for the defense was forensic pathologist,
Charles Wetli, M.D., who addressed Malaker's cause of death, but
not Coppola's. In addition to the documents Dr. Shaikh reviewed,
Dr. Wetli reviewed the slides from Malaker's histopathology
examination, and Malaker's medical records, which showed a history
of bronchial asthma, anxiety, and panic attacks. Dr. Wetli opined,
based on the state of Malaker's lungs, her body's position at time
9 A-1244-13T1
of death, and her medical history, that she died not from a heroin
overdose, but succumbed instead to acute asthmatic bronchitis. He
opined that the asthma attack was triggered by the panic and
anxiety of seeing her boyfriend overdosing. He asserted the level
of free morphine in her body was too low to have been listed as a
contributing cause. On cross-examination, the State confronted
Dr. Wetli with two studies that reported cases of asthma attacks
precipitated by snorting heroin.
The jury found defendant guilty of distributing heroin, and
distributing heroin that Malaker and Coppola ingested, causing
their deaths. At sentencing, the court was satisfied defendant
met the prerequisites for a downgraded sentence, and imposed
concurrent five-year terms for the two first-degree counts,
subject to the No Early Release Act,
N.J.S.A. 2C:43-7.2, and a
concurrent flat four-year term on the third-degree count.5
The State filed an appeal of the sentence. Defendant cross-
appealed, raising the following points:
POINT I
THE DEFENDANT'S CONSTITUTIONAL RIGHT TO
CONFRONTATION WAS VIOLATED BY THE TRIAL COURT
PERMITTING THE STATE TO PRESENT ITS MEDICAL
EVIDENCE VIA A WITNESS WHO HAD NO INVOLVEMENT
IN THE INVESTIGATION OF THE DEATHS. U.S.
CONST., AMENDS. VI, XIV; N.J. CONST. (1947),
ART. 1, PARS. 9, 10.
5
The court granted defendant bail pending appeal.
10 A-1244-13T1
POINT II
THE TRIAL COURT ERRED TO DEFENDANT'S GREAT
PREJUDICE BY DECLINING TO CHARGE THE JURY AS
TO JOINT POSSESSION.
POINT III
THE TRIAL COURT ERRED IN DENYING BOTH
DEFENDANT'S MOTION FOR DISMISSAL AT THE
CONCLUSION OF THE STATE'S CASE AND FOR A NEW
TRIAL. U.S. CONST., AMEND. XIV; N.J. CONST.
(1947), ART. 1, PARS. 9, 10.
A. The State Failed to Sustain Its Burden
of Introducing Sufficient Evidence to
Support the Charges.
B. The Verdict was Manifestly Against the
Weight of the Evidence.
POINT IV
THE TRIAL COURT ERRED TO DEFENDANT'S PREJUDICE
IN DENYING DISCOVERY AS TO THE DECEDENTS'
MEDICAL RECORDS. U.S. CONST., AMEND. XIV;
N.J. CONST. (1947), ART. 1, PARS. 9, 10.
POINT V
THE STATE PRESENTED INCOMPLETE AND MISLEADING
TESTIMONY TO THE GRAND JURY, AND PROVIDED
DEFICIENT LEGAL INSTRUCTIONS, NECESSITATING
VACATION OF THE CONVICTIONS AND DISMISSAL OF
THE INDICTMENT. U.S. CONST., AMEND. XIV; N.J.
CONST. (1947), ART. 1, PAR. 8.
A. The State Presented Incomplete and
Misleading Testimony As to a Crucial
Issue.
B. The State's Legal Instructions to the
Grand Jury Were Insufficient and
Misleading.
11 A-1244-13T1
II.
The principal issue on appeal is whether Dr. Shaikh's
testimony violated defendant's right of confrontation.6 We are
guided by principles our Supreme Court enunciated in Bass,
224 N.J. at 285. The Bass Court applied Confrontation Clause
principles established in Crawford v. Washington,
541 U.S. 36
(2004), to a case in which an assistant county medical examiner
testified based on the autopsy of a recently deceased county
medical examiner. Bass,
224 N.J. at 311-21. Bass was charged
6
Although defense counsel did not expressly reference the
Confrontation Clause in objecting to Dr. Shaikh's testimony, she
preserved the issue by seeking to exercise her rights and objecting
as necessary. See State v. Wilson,
227 N.J. 534, 543 (2017)
(noting Confrontation Clause issue preserved under similar
circumstances); State v. Bass,
224 N.J. 285, 312 (2016). Before
trial began, defense counsel objected to Dr. Shaikh's testimony
because the State provided no report of his opinion. The court
overruled the objection. With the prosecutor's concurrence, the
court ruled Dr. Shaikh could do no more than "rubber stamp what
Dr. Hua said" and "not deviat[e] from that one iota." Before Dr.
Shaikh testified, the defense renewed its objection, contending
that by presenting Dr. Hua's opinions through Dr. Shaikh, the
State would impermissibly rely on hearsay, and deprive the defense
of its ability to cross-examine Dr. Hua. The court overruled the
objection, stating that Dr. Shaikh could rely on Dr. Hua's
findings, consistent with N.J.R.E. 703, and the defense could call
Dr. Hua if it wanted, which defense counsel responded it was not
obliged to do.
12 A-1244-13T1
with the fatal shooting of one victim, Jessica Shabazz, and the
non-fatal shooting of another, James Sinclair. Id. at 290. The
assistant medical examiner, Dr. Frederick DiCarlo, read
significant portions of the report of the deceased examiner, Dr.
Jay Peacock, who opined that Shabazz bled as she ran away from the
defendant, and died from a single gunshot wound to the back. Id.
at 318.
As in Bass, we must first decide whether the absent medical
examiner's report was "testimonial." Id. at 316. That is a
threshold question because the United States Supreme Court held
in Crawford that the confrontation right applies to a "testimonial
statement" against a defendant.
541 U.S. at 68. "Where
testimonial statements are at issue, the only indicium of
reliability sufficient to satisfy constitutional demands is the
one the Constitution actually prescribes: confrontation." Id. at
68-69. A prosecutor may introduce "testimonial" hearsay
statements only if the criminal defendant is able to cross-examine
the declarant, or the declarant is unavailable and the defendant
had a prior opportunity to cross-examine. Id. at 53-54.
Applying a "fact-specific analysis," Bass,
224 N.J. at 317
n.9, the Bass Court noted an active homicide investigation had
already begun when the autopsy was performed; an investigator for
the county prosecutor observed the autopsy; and the medical
13 A-1244-13T1
examiner transmitted evidence to the investigator. Id. at 316-
17. Based on those facts, the Supreme Court held that the autopsy
report was testimonial because its "primary purpose . . . was to
establish facts for later use in the prosecution of [the] case."
Id. at 317; see also Davis v. Washington,
547 U.S. 813, 822 (2006).
We reach the same conclusion here. As the RIMEs noted, the
reason for the investigation was the "suspicious" circumstances
of the two deaths. Drug use was obvious, as the RIMEs stated an
empty glycine bag and a straw were found on a shiny disk on the
bed near Coppola's body. Virtually any fatal drug overdose case
raises the specter of a violation of
N.J.S.A. 2C:35-9. The medical
examiner was required to perform an autopsy because the deaths
were suspicious. See
N.J.S.A. 52:17B-86 (mandating investigation
of human deaths "under suspicious circumstances"); N.J.A.C. 13:49-
1.1(a)(2) (same). Dr. Hua provided his autopsy report to the
county prosecutor. See
N.J.S.A. 52:17B-87, -88. Dr. Shaikh
explained that "[a]ll the medical/legal autopsies or the autopsies
performed by the medical examiner are done . . . in a forensic
setting. . . . cognizant of preserving evidence and chain of
custody." At least by the time Dr. Hua amended his reports to
conclude that heroin or morphine intoxication was a cause of death,
the primary purpose was to establish facts for later use at a
trial.
14 A-1244-13T1
In Bass, Dr. DiCarlo reviewed Dr. Peacock's autopsy report
and photographs, inspected the crime scene, and examined the
clothing Shabazz wore when she died, but Dr. DiCarlo did not write
his own report.
224 N.J. at 317-18. Rather, he wrote a one-
sentence letter to the prosecutor stating that he reviewed Dr.
Peacock's "post-mortem examination and autopsy report" and agreed
with his findings. Id. at 318. Over objection, the State prompted
Dr. DiCarlo at trial to "read the contents of various portions of
Dr. Peacock's autopsy report, as if [he] had been present at the
autopsy and Dr. Peacock's findings were his own." Ibid. Included
among Dr. DiCarlo's readings was Dr. Peacock's ultimate
conclusions as to cause and manner of death. Ibid.
The Court found this violated the defendant's right of
confrontation.7 The Court began with the premise established in
State v. Michaels,
219 N.J. 1 (2014), that "a truly independent
reviewer or supervisor of testing results can testify to those
results and to his or her conclusions about those results, without
violating a defendant's confrontation rights, if" the independent
reviewer or supervisor meets three requirements. Bass,
224 N.J.
at 315 (quoting Michaels,
219 N.J. at 45-46). The testifying
7
However, the Court did not reverse the defendant's convictions
on that ground because it had already found the trial court
committed reversible error in limiting the defendant's cross-
examination of Sinclair. Id. at 291.
15 A-1244-13T1
reviewer must (1) be "knowledgeable about the testing process";
(2) "independently verif[y] the correctness of the machine-tested
processes and results"; and (3) "form[] an independent conclusion
about the results." Ibid. (quoting Michaels,
219 N.J. at 45-46).
The Court found those principles applied in Bass, notwithstanding
that Michaels and a companion case, State v. Roach,
219 N.J. 58
(2014), involved "the evaluation of machine-generated data" –
blood analysis in Michaels and DNA analysis in Roach – and Bass
involved an autopsy. Bass,
224 N.J. at 316.
The Court held that Dr. DiCarlo's testimony did not meet the
Michaels standard. Id. at 318. Dr. DiCarlo "was permitted to
engage in precisely the type of 'parroting' of the autopsy report
that has been held to violate the Confrontation Clause." Id. at
319. The Court reached that conclusion notwithstanding that "Dr.
DiCarlo was asked to generally comment about autopsy techniques
based on his own expertise, and offered independent observations
and conclusions on several autopsy photographs." Id. at 318. "[A]
testimonial report that is not admitted into evidence can engender
a violation of the Confrontation Clause if that report is
'integral' to the testimony of a substitute witness." Id. at 317.
The Court noted that "Dr. DiCarlo could have testified as an
independent reviewer of the information generated by the autopsy,"
and offered an opinion "entirely on the basis of his own review
16 A-1244-13T1
of the evidence." Id. at 319. His failure to do so offended the
Confrontation Clause. Ibid.8
Applying the principles set forth in Bass, we conclude that
Dr. Shaikh's testimony violated defendant's confrontation rights.
Like Dr. Peacock's opinion in Bass, Dr. Hua's opinion was integral
to his successor's testimony. Dr. Shaikh did not even write a
one-sentence report, as did Dr. DiCarlo. He headlined his
testimony by expressing his agreement with, and adopting verbatim,
Dr. Hua's conclusion as to the cause and manner of death of each
victim. Dr. Shaikh also paraphrased at length Dr. Hua's findings
regarding his external and internal examinations.
Dr. Shaikh did not independently verify the correctness of
Dr. Hua's results; notably, he failed to view the histopathology
slides, contending they would not have changed his conclusions.
Although Dr. Shaikh, like Dr. DiCarlo, offered independent
observations and conclusions, Dr. Shaikh's opinion was intertwined
with Dr. Hua's. In summation, the prosecutor highlighted that
"Dr. Shaikh said he reviewed the autopsy report that was . . .
8
The Court recognized medical examiners may sometimes become
unavailable when "a medical examiner who conducted an autopsy
dies, becomes incapacitated or relocates out of state before
trial." Ibid. However, with proper planning, a substitute expert
can still comply with the command of the Confrontation Clause.
Id. at 320.
17 A-1244-13T1
done by Dr. Hua, and he agreed with his findings . . . ." In sum,
the State presented the opinions of two experts. Yet,
confrontation of the first was denied entirely, and confrontation
of the second was limited by the second's reliance on the first.9
As defendant preserved her confrontation clause claim, we
must reverse the conviction unless we are persuaded that the error
was "harmless beyond a reasonable doubt." See Bass,
224 N.J. at
307-08 (quoting Delaware v. Van Arsdall,
475 U.S. 673, 684 (1986)).
Although the evidence of heroin ingestion was overwhelming, we are
not satisfied, beyond a reasonable doubt, that the violation of
defendant's confrontation rights was harmless.
Once the jury determined that defendant distributed heroin,
the critical issue was causation. The State was required to prove
that the ingestion of the heroin was "an antecedent but for which
the death would not have occurred"; and the death was not "too
remote . . . to have a just bearing on the defendant's liability",
or it was not "too dependent upon conduct of another person which
was unrelated to the . . . ingestion of the [heroin] or its effect
as to have a just bearing on the defendant's liability." N.J.S.A.
9
We note that the court, in delivering the model charge on
consideration of expert opinion in its final instructions to the
jury, identified all the experts who testified at trial except Dr.
Shaikh. No apparent explanation was given. However, the omission
only exacerbates the prejudice of Dr. Shaikh's testimony.
18 A-1244-13T1
2C:35-9(b). The State's proof of causation rested upon the dual
opinions of Dr. Shaikh and Dr. Hua.
As a result of the deprivation of defendant's right of
confrontation, neither opinion was fully tested. Dr. Shaikh
repeated the causation opinions of Dr. Hua, which lacked the "why
and wherefore" that supported them. See Townsend v. Pierre,
221 N.J. 36, 54 (2015). Dr. Hua's autopsy addenda simply provided his
revised conclusions without any explanation or discussion.
Also problematic was Dr. Shaikh's statement regarding the
medical examiner's standard operating procedure for cases
involving multiple causes of death. Regarding Malaker, he stated
that "as a routine practice" medical examiners cite drug use as
the principal cause of death, and any underlying health condition
as a contributing cause. Dr. Shaikh did not expressly state that
heroin use was a "but for" cause of death in Malaker's particular
case.
In connection with Coppola, he stated "it's always
appropriate as a convention of medical examiners" to blame all of
the drugs in a person's system, "as long as there are drugs that
can cause a person's demise." Dr. Shaikh did not expressly state
that heroin was a "but for" cause of Coppola's death. Thus, we
are not persuaded, beyond a reasonable doubt, that denial of
defendant's confrontation right was harmless. We reverse
19 A-1244-13T1
defendant's two first-degree convictions for causing drug-induced
deaths, and remand for a new trial.
III.
Defendant's remaining points deserve relatively brief
discussion. We are unpersuaded by defendant's argument that the
trial court was obliged to charge joint possession as a lesser-
included offense of distribution. There was no "rational basis
. . . in the evidence for a jury" to acquit defendant of
distribution and convict her of joint possession. See State v.
Savage,
172 N.J. 374, 396 (2002). In her recorded interview,
defendant denied possessing heroin at all. The State's
circumstantial evidence was that she possessed it, and then sold
it to Malaker, who used Coppola's funds. There was no evidence
in the record for the jury to conclude that defendant jointly
possessed the heroin with Malaker or Coppola. Defendant misplaces
reliance on State v. Morrison,
188 N.J. 2, 19-20 (2006), where the
evidence supported a joint purchase by the defendant and a cohort,
who later died.
We also do not disturb the trial court's denial of defendant's
motion for acquittal at the close of the State's case, and for a
new trial after the verdict. Applying the familiar and indulgent
standard of State v. Reyes,
50 N.J. 454, 458-59 (1967), the court
decided that the State had presented sufficient evidence on all
20 A-1244-13T1
three counts for the case to go to the jury, although the judge
acknowledged that the evidence of distribution was marginal. We
apply the same standard of review as does the trial court. State
v. Dekowski,
218 N.J. 596, 608 (2014). We agree with the trial
court's assessment that the evidence of distribution was far from
overwhelming. Yet, the circumstantial evidence was sufficient,
substantially for the reasons the trial judge set forth. As for
the first-degree counts, putting aside the confrontation right
violation, a reasonable jury could find causation and guilt based
on the favorable opinions of Drs. Hua, Shaikh and Adams, and the
"favorable inferences which reasonably could be drawn therefrom."
Reyes,
50 N.J. at 459.
We also discern no error in the trial court's denial of
defendant's pretrial motion to compel the State to produce
Coppola's medical records, and Malaker's psychological and medical
records (with the exception of records of her asthmatic condition
for one year prior to her death, which the court ordered released).
We lack the benefit of defendant's written motion and supporting
certification, if any. See Cmty. Hosp. Grp. v. Blume Goldfaden,
381 N.J. Super. 119, 127 (App. Div. 2005) (stating an appellate
court is not "obliged to attempt review of an issue when the
relevant portions of the record are not included"). There also
is no indication that the State possessed or controlled the
21 A-1244-13T1
requested records, or that defendant provided notice to the
victims' estates, which likely possessed them. See State v. Kane,
449 N.J. Super. 119, 132-34 (App. Div. 2017) (finding State was
not obliged to produce medical records of victim that it did not
possess or control, and suggesting that victim was entitled to
notice of defendant's request for her mental health records);
N.J.R.E. 506(a) (noting that physician-patient privilege may be
claimed by the personal representative of a deceased patient);
N.J.R.E. 505 (by incorporating N.J.R.E. 504 standard, providing
that psychologist-patient privilege may be claimed by personal
representative of deceased patient).10
In any event, defendant did not demonstrate that the requested
production of privileged medical records was essential to protect
her constitutional right to a fair trial. See Kane,
449 N.J.
Super. at 135 (stating that privilege is not subject to a general
equitable balancing with the requester's need; rather, the court
may pierce it "only in the most narrow of circumstances, such as
where a privilege is in conflict with a defendant's right to a
constitutionally guaranteed fair trial" (quoting State v. Mauti,
208 N.J. 519, 538 (2012)). In sum, we discern no abuse of
discretion. Id. at 132.
10
Trial preceded adoption of N.J.R.E. 534, which consolidated the
privileges of mental health patients.
22 A-1244-13T1
We also reject defendant's contention that the trial court
erred in denying her motion to dismiss the indictment. Defendant
contends that a prosecutor's office detective mischaracterized,
before the grand jury, statements made by the man known as Fat Boy
Jon, who gave numerous – in some respects conflicting – statements
to law enforcement about defendant's possession and distribution
of heroin at his house.11 The motion to dismiss is "directed to
the sound discretion of the court." State v. Williams,
441 N.J.
Super. 266, 272 (App. Div. 2015). Furthermore, "dismissal of an
indictment is a draconian remedy and should not be exercised except
on the clearest and plainest ground." Id. at 271-72 (quoting
State v. Peterkin,
272 N.J. Super. 25, 38 (App. Div. 1988)). Even
assuming the detective mischaracterized Fat Boy Jon's statements
by presenting them as coherent, instead of inconsistent and
equivocal, that is not sufficient to warrant reversal. Even absent
those statements, the "grand jury could reasonably believe that a
crime occurred and the defendant committed it." State v.
Nicholson,
451 N.J. Super. 534, 541-42 (App. Div. 2017) (quoting
State v. Feliciano,
224 N.J. 351, 380-81 (2016)). Indeed, the
11
Although the prosecutor expressed the intention to call him as
a witness at trial, he reportedly was prepared to invoke his right
to remain silent, and the State did not call him.
23 A-1244-13T1
petit jury reached that conclusion beyond a reasonable doubt
without Fat Boy Jon's testimony.
IV.
The State contends the court erred in imposing a sentence in
the second-degree range, citing State v. Megargel,
143 N.J. 484,
496-97 (1996). We may not reach the issue, as the State's notice
of appeal was not filed within ten days, as required by
N.J.S.A.
2C:44-1(f)(2). The time limit is strictly enforced. State v.
Sanders,
107 N.J. 609, 616 (1987); State v. Watson,
183 N.J. Super.
481, 484 (App. Div. 1982). After oral argument, the State filed
a motion to relax the deadline, but the time-frame is
jurisdictional. Ibid.; see also State v. Gould,
352 N.J. Super.
313, 318-19 (App. Div. 2002) (vacating for lack of jurisdiction
court's prior order granting State's motion to file late notice
of appeal and dismissing appeal). Therefore, we are constrained
to deny the motion, despite the minor deviation from the deadline.
V.
In sum, we affirm the conviction of third-degree distribution
of heroin; reverse the convictions of first-degree strict
liability causing drug-induced deaths; and remand for further
proceedings consistent with this opinion.
Affirmed in part, reversed in part, and remanded. We do not
retain jurisdiction.
