To view complete transcript click here
Superior Court of New Jersey, Appellate Division.
STATE of New Jersey, Plaintiff-Respondent, v. Ralph A. RASO, Defendant-Appellant.
Decided: March 17, 1999
Before Judges CONLEY, KIMMELMAN and LEFELT. Ivelisse Torres, Public Defender, attorney for the defendant-appellant (Claire Drugach, Assistant Deputy Public Defender, of counsel and on the brief). Peter Verniero, Attorney General of New Jersey, attorney for plaintiff-respondent (Jordana Jakubovic, Deputy Attorney General, of counsel and on the brief).
The opinion of the court was delivered by
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,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…
…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, 694 A.2d 196 (App.Div.), certif. denied, 151 N.J. 466, 700 A.2d 878 (1997). See State v. Feaster, 156 N.J. 1, 82, 716 A.2d 395 (1998). Demonstrative or illustrative evidence may be evidence that replicates or illustrates certain aspects of a crime scene. E.g. id. at 83, 716 A.2d 395 (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, 245 A.2d 481 (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, 694 A.2d 196 (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…
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, 273 A.2d 1 (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.
1. The 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․”
– See more at: http://caselaw.findlaw.com/nj-superior-court-appellate-division/1403784.html#sthash.RWNB4eKE.dpuf