State of New Jersey v. Brandon Kane

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2739-13T2

STATE OF NEW JERSEY,

Plaintiff-Respondent, APPROVED FOR PUBLICATION

v. March 3, 2017

BRANDON KANE, APPELLATE DIVISION

Defendant-Appellant.
__________________________________

Argued June 8, 2016 – Decided March 3, 2017

Before Judges Ostrer, Haas and Manahan.

On appeal from the Superior Court of New
Jersey, Law Division, Monmouth County,
Indictment No. 11-03-0448.

Michele E. Friedman, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender,
attorney; Jason A. Coe, Assistant Deputy
Public Defender, of counsel and on the
briefs).

Mary R. Juliano, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued
the cause for respondent (Christopher J.
Gramiccioni, Acting Monmouth County
Prosecutor, attorney; Ms. Juliano, of
counsel and on the brief).

The opinion of the court was delivered by

OSTRER, J.A.D.
 A jury found defendant Brandon Kane guilty of second-degree

serious bodily injury aggravated assault of M.K. (Marjie),1

N.J.S.A. 2C:12-1(b)(1); second-degree kidnapping of Marjie, as a

lesser-included offense of first-degree kidnapping, N.J.S.A.

2C:13-1(b); third-degree terroristic threats of Marjie, N.J.S.A.

2C:12-3; third-degree significant bodily injury aggravated

assault of C.H. (Charlie), N.J.S.A. 2C:12-1(b)(1);2 and fourth-

degree criminal trespass of Charlie's home, N.J.S.A. 2C:18-3(a),

as a lesser-included offense of second-degree burglary, N.J.S.A.

2C:18-2. The jury acquitted defendant of first-degree attempted

murder of Marjie, N.J.S.A. 2C:5-1, N.J.S.A. 2C:11-3.

Defendant raises four arguments on appeal. First, he

challenges the court's denial of his motion to compel production

of Marjie's pre-assault medical and mental health treatment

records. Second, he claims that several instances of

prosecutorial misconduct deprived him of a fair trial. Third,

he argues there was plain error in the jury instruction. Last,

he challenges the court's weighing of aggravating and mitigating

factors in imposing an aggregate sentence of seven years subject

1
Out of respect for their privacy, we use initials and
pseudonyms for the victims.
2
After the close of the State's case, the court reduced the
original second-degree charge related to the assault of Charlie
to a third-degree aggravated assault.

2 A-2739-13T2
to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Having

considered defendant's arguments in light of the record and

applicable principles of law, we affirm.

I.

The offenses occurred during and after a party at Charlie's

house on the evening of October 18, 2010, and in the early

morning hours the next day. The State presented eyewitness

testimony from party attendees and two neighbors; State

Troopers, including those who discovered the victims and

arrested defendant; physicians who treated Marjie; and an expert

witness who rebutted defendant's defense of temporary insanity.

Defendant called his father, one eyewitness, and two experts in

support of his insanity defense. Although defendant did not

testify, the jury heard his Mirandized statement to police.

Defendant and Marjie had been dating for almost a year when

they celebrated her twenty-first birthday on October 18. The

celebration, which involved significant drinking, was an all-day

affair that ended at Charlie's house around 11 p.m. Present

along with Charlie were his girlfriend and another couple. The

group consumed shots of whiskey, although Marjie denied drinking

at Charlie's house. Marjie admitted she was still tipsy from

before, however.

3 A-2739-13T2
 The mood was initially festive, but changed after the

conversation turned to defendant's appearance. He was a body-

builder who had injected himself with anabolic steroids. He

weighed roughly 250 pounds. One person likened defendant to the

Hulk while the group was gathered. Defendant then grabbed a

refrigerator and smashed his head into it repeatedly. As a

result of the bizarre act, Charlie got upset and told defendant

to calm down.

The altercation apparently disturbed defendant, who walked

into the living room. Marjie followed. She asked him if he was

okay and tried to hug him. He head-butted her, knocking her to

the floor and causing a cut under her eye. He then picked her

up and instructed her "to stop crying" and mend her face.

Upon learning what defendant had done, the other two women

scolded defendant. Defendant became enraged that Marjie had

disclosed he struck her. He told Marjie their relationship was

over if she did not leave with him. He also threatened to kill

her if she stayed. But she refused to obey his orders.

Instead, defendant was told to leave and, eventually, after a

violent confrontation with Charlie outside, he complied.

However, less than an hour later, he returned. Charlie and

his girlfriend were arguing near a door to the house.

Defendant, who had earlier accused Charlie of "making out" with

4 A-2739-13T2
Marjie, approached Charlie and punched him in the face,

fracturing his nose and knocking him unconscious.

Defendant located Marjie on the living room floor. She

told him she was trying to sleep, but he did not believe her.

She testified he grabbed her by the hair and dragged her out of

the house, shoeless and coatless. Another one of the party-

goers, who had passed out on a nearby sofa, testified for the

defense that he awoke to observe defendant and Marjie yelling,

cursing and arguing. But he stated that defendant did not drag

Marjie out of the house by her hair.3

Marjie did not weigh much over one hundred pounds. She

testified that defendant pulled her up the street. When she

lost her footing, he simply dragged her along. She kept telling

him to let her go. Marjie testified that he repeatedly told her

he was going to kill her, and asked, "How does it feel knowing

it's your last day to live?" When she tried to break free of

his grip, he lifted her by her hair and punched her at least

twice in the face, close-fisted. She blacked out. When she

awoke, she felt her face gushing blood. He took her to a park

3
The witness's credibility was questionable. He admitted that
his trial testimony was at odds with his statement to police
shortly after the event. He also testified he had been drinking
steadily since the early evening, consuming multiple beers, four
or five shots of whiskey, and painkillers. He did not observe
defendant hit the refrigerator, head-butt Marjie, or punch
Charlie. He also admitted he had been a friend of defendant.

5 A-2739-13T2
and threw her down to the ground. While again threatening her

with death, he kicked, punched, and choked her until she lost

consciousness again.

When she awoke a second time, defendant was cradling her

head as she lay in the field, repeating he was sorry. He asked

her if she was unfaithful to him. He tried to convince her to

make up a story about how she was injured. She said she needed

medical attention, but he did not call 911. Instead, he decided

to take her back to his house. She begged him to take her to

Charlie's house while they were en route, which he did. After

checking to see if anyone was present, he carried Marjie up to a

bathroom and tried to clean her up.

State Troopers then entered the house. They had been

called by two of Charlie's neighbors, who had independently come

to suspect something was awry. As one neighbor headed home, he

noticed the altercation between defendant and Charlie outside

Charlie's house. His wife later heard Charlie's girlfriend

screaming after discovering Marjie was missing from the home.

The responding police searched unsuccessfully for defendant —

they interviewed defendant's father and went to the park — only

to find defendant after he returned to the house with Marjie.

The troopers found defendant standing in the bathroom as

Marjie lay curled on the floor of the shower. She was bleeding

6 A-2739-13T2
profusely. Her eyes were swollen shut. A piece of her lip had

been ripped or bitten off. She had a fist mark on her forehead,

marks on her neck, and "road rash" on her leg. Physicians later

testified she suffered a concussion. As of the trial in 2013,

she still suffered from migraines, vertigo, and post-traumatic

stress disorder (PTSD) related to her head injury. Troopers

also found Charlie in a nearby bedroom. He could not explain

how he got there from the kitchen, where he had been knocked

out.

Defendant told the troopers that Marjie simply fell, but

the police were not persuaded and arrested him. Initially,

Marjie also claimed her injuries were from a fall. But once the

police officers assured her that defendant was in custody, she

told them how he had assaulted her.

In a recorded Mirandized statement, defendant denied

assaulting anyone at any point during the evening. He denied he

struck the refrigerator. He claimed he left the house only to

retrieve his phone charger. He stated that when he returned to

the house, he found Marjie curled up on the living room floor,

screaming, with head and facial injuries. He denied he blacked

out at any time. He also denied that he had taken steroids or

other drugs.

7 A-2739-13T2
 Defendant filed two pretrial motions to compel the State to

produce records of Marjie's mental health treatment, drug and

alcohol rehabilitation and counseling, drug prescriptions, and

hospitalization and treatment for an alleged suicide attempt in

2010.4 The court denied the first motion without prejudice. The

court concluded that defendant failed to demonstrate the need or

relevance of the records.

A different judge denied the second motion several months

later. Relying on N.J.R.E. 505 and N.J.R.E. 506, the court

found the requested documents were privileged and defendant

failed to satisfy the test for piercing the privilege as set

forth in In re Kozlov, 79 N.J. 232 (1979), and restated in

Kinsella v. Kinsella, 150 N.J. 276 (1997). The court rejected

the argument the documents were needed to challenge Marjie's

credibility, questioning whether her credibility was at issue

and whether the documents would be relevant to undermining it.

At trial, defense counsel conceded that defendant punched

Charlie, head-butted Marjie, and struck her again in the park.

The crux of the defense was a claim of temporary insanity.

Defendant offered evidence that he suffered from PTSD arising

out of an incident four years earlier in which he was stabbed

4
Defendant also sought records of any toxicology tests performed
at the hospital after the assault, but the parties ultimately
agreed none existed.

8 A-2739-13T2
repeatedly. His expert witness contended that he committed the

assaults in the midst of a "disassociative state" triggered by

the PTSD and influenced by alcohol and drugs. As a result, he

was "acting as if . . . on automatic pilot . . . in more of a

reflexive manner."

Defense counsel also challenged the kidnapping charge,

contending Marjie voluntarily left the house with defendant, and

the burglary charge associated with his entry over Charlie's

objection. He also argued the State overcharged defendant by

alleging attempted murder.

The State's rebuttal expert found "no evidence that Brandon

was psychotic before, during, or following the offense" or that

he "didn't know what he was doing." Rather, he "struck the

person he was angry at." Using the language of N.J.S.A. 2C:4-1,

he opined defendant's actions demonstrated that he understood

the "nature and quality" of his acts and knew that "what he was

doing was wrong."

Following the verdict, the court denied defendant's motion

for a new trial. At the sentencing hearing, the court found

that aggravating factors three (risk of re-offending), six

(extent of prior criminal record), and nine (need to deter)

outweighed mitigating factor eight (conduct the result of

circumstances unlikely to recur). N.J.S.A. 2C:44-1(a)(3), (6),

9 A-2739-13T2
(9); N.J.S.A. 2C:44-1(b)(8). The court noted that defendant's

steroid use and intoxication contributed to his violent

behavior, but did not find mitigating factor four (substantial

grounds tending to excuse or justify conduct), despite

defendant's request that it do so. See N.J.S.A. 2C:44-1(b)(4).

The court sentenced defendant to concurrent seven-year

terms on the second-degree kidnapping and aggravated assault of

Marjie, with eighty-five percent parole disqualifiers and three-

year periods of parole supervision under NERA, N.J.S.A. 2C:43-

7.2. The court imposed a concurrent four-year term on the

third-degree aggravated assault of Charlie, and merged the

criminal trespass and terroristic threat counts into the

remaining counts.

Defendant presents the following points on appeal:

POINT I

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S
DISCOVERY MOTIONS BECAUSE THERE WAS A
REASONABLE PROBABILITY THAT THE MATERIALS
SOUGHT WOULD LEAD TO RELEVANT EVIDENCE; IT
WAS FURTHERMORE A VIOLATION OF DEFENDANT'S
CONFRONTATION RIGHT WHEN THE TRIAL COURT
PREVENTED DEFENSE COUNSEL FROM CROSS-
EXAMINING THE VICTIM AS TO POSSIBLE USE OF
PRESCRIPTION DRUGS. (raised below).

POINT II

MULTIPLE INSTANCES OF PROSECUTORIAL
MISCONDUCT, INCLUDING UNSUBSTANTIATED
ACCUSATIONS AGAINST THE DEFENDANT OF WITNESS

10 A-2739-13T2
TAMPERING IN THE PRESENCE OF THE JURY,
REQUIRE REVERSAL. (partially raised below).

A. The State Improperly Impeached A
Defense Witness By Reference To An
Unsubstantiated Allegation Of Witness
Tampering In Front Of The Jury.

B. The State's Opening And Closing
Statements Contained Improper
Inflammatory Appeals To The Jurors'
Emotions.

C. The State Improperly Exalted The
Prosecution's Position As The
Representative Of The State Of New
Jersey To Lend Credibility To Its
Theory Of The Case.

D. The Prosecutor Improperly Vouched For
The State's Case By Expressing A
Personal Belief In The Validity Of The
Charges In The Indictment.

E. The State Improperly Denigrated The
Defendant's Mental Health Defense.

F. The Cumulative Effect Of The
Prosecutorial Misconduct That Appears
In The Record Was Clearly Capable Of
Producing An Unjust Result And
Therefore Requires Reversal.

POINT III

BECAUSE THE STATE CHARGED MULTIPLE ACTS IN A
SINGLE COUNT OF THE INDICTMENT, THERE WAS A
REAL DANGER OF A FRAGMENTED VERDICT, THUS
NECESSITATING A SPECIFIC UNANIMITY
INSTRUCTION. (not raised below).

POINT IV

DEFENDANT'S SEVEN-YEAR NERA SENTENCE FOR HIS
FIRST INDICTABLE OFFENSE WAS BOTH EXCESSIVE
AND PROCEDURALLY FLAWED.

11 A-2739-13T2
 II.

Defendant argues that the court erred in twice denying his

motion to compel disclosure of Marjie's medical, mental health,

and rehabilitation records. We review the trial court's

discovery ruling for an abuse of discretion. State v. Broom-

Smith, 406 N.J. Super. 228, 239 (App. Div. 2009), aff'd, 201

N.J. 229 (2010). We discern none.

A.

Before reaching the issue of privilege, we note that

defendant failed to meet his heavy burden to secure discovery

not mandated by Rule 3:13-3. It also appears he failed to

provide notice of his motion to Marjie, the alleged victim. As

these shortcomings implicate important issues concerning the

confidentiality rights of third party crime victims, we discuss

them separately.

Our criminal discovery rules do not oblige the State to

produce reports of mental examinations or experiments unless

they are within its "possession, custody, or control." R. 3:13-

3(b)(1)(C); see State v. Robertson, 438 N.J. Super. 47, 68-69

(App. Div. 2014), certif. granted on other grounds, 221 N.J. 287

(2015). There is no evidence the State possessed the various

records defendant sought. "[E]vidence in the control of a crime

victim — notwithstanding the victim's close cooperation with the

12 A-2739-13T2
prosecution — is not within the prosecutor's 'possession,

custody or control.'" Id. at 69 (citation omitted). Likewise,

the State's disclosure obligations under Brady v. Maryland, 373

U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), do not extend

to documents in a private third-party's possession. Robertson,

supra, 438 N.J. Super. at 69.

A court may exercise its inherent power to order discovery

outside the court rule, but the defendant bears the burden of

establishing need. State ex rel. A.B., 219 N.J. 542, 555

(2014). That burden is specifically calibrated to the "nature

and extent of the intrusion" into the discovery target's rights.

Id. at 556-57. In the case of a compelled psychological or

physical examination of a victim, the burden is a heavy one.

Even absent an issue of privilege, the defendant must satisfy a

"heightened standard of substantial need" to justify the

"extraordinary intrusions into an alleged victim's mind and

body" and resulting emotional trauma and distress to the alleged

victim. Id. at 561; State v. D.R.H., 127 N.J. 249, 256-67

(1992); see also State v. Gomez, 430 N.J. Super. 175, 184 (App.

Div. 2013) (stating discovery is only appropriate when the

requestor's right "clearly outweighs the victim's . . . rights

with respect to the specific discovery sought and its purpose");

N.J.S.A. 52:4B-36(c) (crime victims shall be "free from

13 A-2739-13T2
intimidation, harassment or abuse" by the defendant). A

victim's pre-existing mental health records deserve comparable

protection.

Nor is there evidence that defendant served the motions on

Marjie. Although neither party addressed the issue, we

seriously doubt the court may compel the production of a

victim's mental health records without affording her notice and

an opportunity to be heard. Cf. A.B., supra, 219 N.J. at 564,

550 (noting that the parents of juvenile-victim were given

notice of alleged offender's request to inspect their home, and

the court considered an opposing certification from the victim's

mother on reconsideration); D.R.H., supra, 127 N.J. at 254-55,

261 (noting written submissions to the court by father of

alleged child sex-assault victim and the victim herself,

opposing defendant's application for a physical examination of

the child); Crescenzo v. Crane, 350 N.J. Super. 531, 543 (App.

Div.) (noting that Rule 4:14-7(c) governing third-party

discovery is designed to afford interested parties an

opportunity to test the right to disclosure), certif. denied,

174 N.J. 364 (2002).5

5
Had defendant sought the records through a trial subpoena duces
tecum, Marjie would have been on notice of the request and had
an opportunity to file a motion to quash. See State v. Cooper,
(continued)

14 A-2739-13T2
 We recognize the prosecutor sought to protect Marjie's

privilege by resisting the motion. Yet, the prosecutor

represents the State, not Marjie. The privilege belongs to her.

She possessed or controlled the records and had the greatest

interest in their confidentiality. Furthermore, an order

compelling discovery would presumably have been directed to her,

not the State. See A.B., supra, 219 N.J. at 564 n.4 (stating

that discovery order — in that case, to inspect victim's home —

may be submitted to the alleged victim as opposed to the

prosecutor's office).

Although a victim may be content to rely on the State's

opposition, she should be afforded the option to advocate

separately for preserving her privilege. As a crime victim, she

was entitled "[t]o appear in any court before which a proceeding

implicating the rights of the victim is being held." N.J.S.A.

52:4B-36(r). This included, in our view, the right to appear to

oppose the motion seeking her records.6

(continued)
2 N.J. 540, 556-57 (1949); In re Application of Attorney
General, 116 N.J. Super. 143, 147 (Ch. Div. 1971).
6
The full text of section (r) entitles a victim:

To appear in any court before which a
proceeding implicating the rights of the
victim is being held, with standing to file
a motion or present argument on a motion
(continued)

15 A-2739-13T2
 B.

As a substantive matter, the documents sought were

privileged and/or confidential. Although the record does not

reflect what kind of mental health professional, if any, Marjie

actually consulted, we presume one or more privileges applied.

See N.J.R.E. 505 (psychologist-patient privilege); N.J.R.E. 506

(physician-patient privilege, including psychiatrist-patient

privilege); N.J.R.E. 510 (marriage counselor privilege);

N.J.R.E. 518 (social worker privilege); N.J.S.A. 45:8B-49

(licensed professional counselor privilege); N.J.A.C. 13:34C-4.5

(alcohol and drug counselor privilege).7 Defendant does not rely

(continued)
filed to enforce any right conferred herein
or by Article I, paragraph 22 of the New
Jersey Constitution, and to receive an
adjudicative decision by the court on any
such motion.

[N.J.S.A. 52:4B-36(r).]

Although the provision grants a victim standing to affirmatively
seek enforcement of her victim rights, we do not read the
standing grant so restrictively as to preclude standing to
oppose efforts to undermine those rights.
7
Prior to the adoption of the uniform privilege governing mental
health service providers, N.J.R.E. 534 (effective July 1, 2016),
the standards governing the privileges varied. See, e.g., State
v. McBride, 213 N.J. Super. 255, 270 (App. Div. 1986)
(recognizing that "the psychologist-patient privilege affords
even greater confidentiality than the physician-patient
privilege"), certif. denied, 107 N.J. 118 (1987).

16 A-2739-13T2
on an explicit exception to a privilege, and he has failed to

justify piercing these privileges.

A court is required to "give as much effect as possible to

the legislative judgments embodied in the privileges within

ever-present constitutional limitations." State v. Mauti, 208

N.J. 519, 537 (2012) (internal quotation marks and citation

omitted). The Court recognized that Kozlov created a three-

prong test for piercing a privilege. Id. at 537. Kozlov held

that a privilege may be pierced upon a showing that: (1) the

party has "a legitimate need . . . to reach the evidence sought

to be shielded"; (2) the evidence is relevant and material to an

issue before the court; and (3) the evidence could not be

secured from a less intrusive source. Kozlov, supra, 79 N.J. at

243-44.

But the Supreme Court cautioned in Mauti that Kozlov did

not create a "broad equitable balancing test pursuant to which

any privilege is subject to piercing if the adversary 'needs'

relevant evidence that cannot be obtained from another source."

Mauti, supra, 208 N.J. at 537. Rather, "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,

would the need prong of its test be satisfied." Id. at 538.

17 A-2739-13T2
 Furthermore, the constitutional right to confrontation upon

which defendant relies is not unqualified. See State v.

Gilchrist, 381 N.J. Super. 138, 144 (App. Div. 2005) (stating

the right to confront one's accusers "does not include the power

to require the pretrial disclosure of any and all information

that might be useful in contradicting unfavorable testimony"

(internal quotation marks and citations omitted)). The

confrontation right may be balanced against a compelling State

interest, such as the interest in maintaining the

confidentiality of certain records. In re Z.W., 408 N.J. Super.

535, 539 (App. Div. 2009) (citing Pennsylvania v. Ritchie, 480

U.S. 39, 59-61, 107 S. Ct. 989, 1002-03, 94 L. Ed. 2d 40, 58-60

(1987)); see also In re Maraziti, 233 N.J. Super. 488, 498-500

(App. Div. 1989) (finding that the Due Process Clause did not

compel disclosure of communications protected by the attorney-

client privilege where alternative sources of information

regarding the victim's credibility were available).

A defendant may not "turn the discovery process into a

fishing expedition." Broom-Smith, supra, 406 N.J. Super. at

239.8 Defendant contends records of Marjie's alleged "sensory

8
Defendant's assault of Marjie was an act of domestic violence
as they were in a long-standing dating relationship. See
N.J.S.A. 2C:25-19. A court must also guard against allowing the
(continued)

18 A-2739-13T2
and mental defects[] and her potential drug use" were essential

to challenge her "ability to perceive effects and relate them

accurately." We disagree. There was no preliminary showing —

despite the fact that defendant was involved in a close

relationship with Marjie for almost a year — that she suffered

from a mental or neurological condition that affected her

ability to perceive, recall or relate.

This case is unlike Velazquez v. City of Camden, 447 N.J.

Super. 224, 244-45 (App. Div.), certif. denied, ___ N.J. ___

(2016), where we allowed a civil rights plaintiff to introduce

evidence of the defendant police officer's sleep disturbances,

anxiety, and difficulties concentrating and functioning because

they related to the credibility of his testimony concerning what

he had observed.9 Notably, in Velazquez, the value of the

witness's testimony turned on a fine, detailed observation —

namely the size and placement of a rock thrown by the suspect

whom the defendant shot. Id. at 245. The court found the

witness's neurological state was directly relevant to his

(continued)
discovery process to be used as a means to harass or embarrass a
victim. See N.J.S.A. 52:4B-36(c).
9
We note that the appellate panel in Velazquez analyzed the
relevance of the information to the issue of the officer's
ability to accurately perceive events. It did not address
whether the evidence's probative value justified piercing the
psychologist-patient privilege.

19 A-2739-13T2
credibility. Ibid. The present matter, by contrast, involves

no such minutia; instead, defendant seeks to impeach Marjie's

observation that she was dragged out of Charlie's house by her

hair. No showing has been made that additional evidence of

substance abuse or mental health disorders would impeach her

ability to perceive and recall such an event.10

Although defendant refers to Marjie as the "complaining

witness," we also find no basis to conclude she waived her

privilege. Cf. Mauti, supra, 208 N.J. at 538-39 (stating that

to pierce the privilege a defendant must show that "a

constitutional right is at stake[] or . . . a party has

explicitly or implicitly waived the privilege"). Marjie is a

crime victim. That does not make her a party to this case, nor

would it be accurate to say the State is "claiming through" a

crime victim when it prosecutes a case. Cf. N.J.R.E. 506(d)

(stating there is no physician-patient privilege where patient's

condition "is an element or factor of the claim or defense of

10
Notwithstanding one party-goer's testimony that defendant did
not drag Marjie out by her hair, there was significant evidence,
in addition to Marjie's testimony, that she was removed against
her will. This included evidence that she left the house
without even taking the time to put on shoes or a jacket; she
went with a man who had already struck her once in the head and
threatened to kill her; and the "road rash" on her left leg,
indicating she had been dragged.

20 A-2739-13T2
the patient or of any party claiming through or under the

patient").

We have previously addressed, without deciding, the

question whether, by signing a criminal complaint, a victim

implicitly waived her privilege "at least insofar as [concerned]

the diagnosis of her mental condition" that the defendant

allegedly caused. See State v. McBride, 213 N.J. Super. 255,

270-71 (App. Div. 1986), certif. denied, 107 N.J. 118 (1987).

Yet, there is no evidence Marjie signed a criminal complaint,

nor does she allege a mental condition that defendant caused.

Furthermore, the court in McBride determined that since the

State placed in evidence the victim's own mental and

neurological condition, it would be unfair to deprive the jury

of information that would enable it to appraise the accuracy of

the diagnosis. See Id. at 262, 269-72. The State has made no

similar effort to place Marjie's mental health in issue in this

case.

Defendant also contends it was reversible error for the

court to preclude cross-examination about whether Marjie had

used oxycodone in the past, after she denied using it the night

of the assault. Evidence of habitual drug use is rarely

admissible to establish drug use on a particular day. State v.

Wormley, 305 N.J. Super. 57, 65 (App. Div. 1997), certif.

21 A-2739-13T2
denied, 154 N.J. 607 (1998). We found harmful error when the

court barred inquiry into a victim's drug usage in Wormley. Id.

at 64-68. However, in that case, there were serious gaps and

inconsistencies in the victim's reported observations of the

crime. Id. at 67-68. Defendant has failed to establish a

similar predicate for exploring Marjie's past drug use in this

case.

In sum, the court did not err in barring discovery of

Marjie's mental health and medical records, and restricting

cross-examination of past drug use.

III.

Defendant raises several instances of prosecutorial

misconduct that he claims, either individually or as a whole,

deprived him of a fair trial. Only one claim of error warrants

discussion. It pertains to the State's cross-examination of the

party-goer who testified that defendant did not drag Marjie out

of the house by her hair. The questioning implied that the

witness had changed his testimony at the request of another

person:

Q. Now, since that point, since that
incident, you've been – I guess you've
received letters or you heard about people –
witnesses in the case receiving letters,
correct?

A. No.

22 A-2739-13T2
 Q. You didn't hear about any letters
being sent out asking people to change their
version of the story?

[DEFENSE ATTORNEY]: Objection.

The judge then excused the jury and asked the prosecutor for an

offer of proof.

[ASSISTANT PROSECUTOR]: Judge, we were
told through another witness . . . as well
as this witness [last month] . . . that
there was, in fact, a letter sent to him
asking him to change his story.

THE COURT: From who?

[ASSISTANT PROSECUTOR]: This . . .
witness couldn't say for certain. He said
it was sent to him from — what I believe
from MCCI.

THE WITNESS: No.

THE COURT: Do you have the letter?

[ASSISTANT PROSECUTOR]: We don't have
a copy of the letter. It was never sent to
us.

THE COURT: So you ask a question that
you don't have an offer of proof to
substantiate?

[ASSISTANT PROSECUTOR]: Judge, it's a
good faith basis for us that we have through
defense counsel's own witness telling us
this.

THE WITNESS: I never said that.

The court found that the prosecutor lacked a sufficient

basis to make this inquiry and sustained the objection. When

23 A-2739-13T2
the jury reentered, the judge instructed, "Folks, I have

sustained the last objection. So the last question that was

posed to the witness will be disregarded by you."

Prosecutorial misconduct may be grounds for reversal where

the misconduct "was so egregious that it deprived the defendant

of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999).

"[T]o warrant a new trial the prosecutor's conduct must have

been clearly and unmistakably improper, and must have

substantially prejudiced [a] defendant's fundamental right to

have a jury fairly evaluate the merits of his defense." State

v. Smith, 167 N.J. 158, 181-82 (2001) (internal quotation marks

and citation omitted). In making this assessment, a reviewing

court "must consider (1) whether defense counsel made timely and

proper objections to the improper remarks; (2) whether the

remarks were withdrawn promptly; and (3) whether the court

ordered the remarks stricken from the record and instructed the

jury to disregard them." Frost, supra, 158 N.J. at 83.

As a threshold matter, we are not convinced the

prosecutor's question was improper. "[A] question in cross-

examination is improper where 'no facts concerning the event on

which the question was based were in evidence and the

[questioner] made no proffer indicating his ability to prove the

occurrence.'" Manata v. Pereira, 436 N.J. Super. 330, 348 (App.

24 A-2739-13T2
Div. 2014) (quoting State v. Rose, 112 N.J. 454, 500 (1988)).

In order to have a good faith basis to inquire about the alleged

letter, the State was not necessarily required to produce the

letter itself, provided the State presented other proof of its

existence.

However, even assuming the question was improper, it did

not constitute egregious misconduct warranting a new trial. See

Frost, supra, 158 N.J. at 83. The question was vague. It did

not identify the purported sender of the letter, nor its

substance. Furthermore, after defense counsel objected, the

judge swiftly and emphatically instructed the jury to disregard

the question. We presume the jury followed those instructions.

State v. Loftin, 146 N.J. 295, 390 (1996).

Defendant's remaining claims of prosecutorial misconduct

pertain to remarks in the prosecutor's opening and closing

statements. We note that defense counsel did not object to

these remarks. "Generally, if no objection was made to the

improper remarks," they "will not be deemed prejudicial."

Frost, supra, 158 N.J. at 83. Having reviewed the statements

carefully, we are unconvinced that there was error, let alone

plain error, warranting a new trial. Any further discussion is

not warranted. R. 2:11-3(e)(2).

25 A-2739-13T2
 IV.

Defendant submits, as plain error, that a "specific

unanimity charge" was required for the second-degree charge of

serious bodily injury aggravated assault of Marjie. Defendant

contends the jury may have reached a fragmented verdict because

the State presented evidence of two distinct assaults: the head-

butting and the attack in the park. Furthermore, the jury could

have been divided as to whether defendant was in a

disassociative state during one assault. We are unconvinced.

"[I]n cases where there is a danger of a fragmented verdict

the trial court must upon request offer a specific unanimity

instruction." State v. Frisby, 174 N.J. 583, 597-98 (2002)

(internal quotation marks and citation omitted). When the

request is not made, as in this case, we must determine whether

the absence of a specific unanimity charge "was clearly capable

of producing an unjust result." Id. at 598 (citing R. 2:10-2).

The Court found such plain error in Frisby, because the State

offered "[d]ifferent theories . . . based on different acts and

entirely different evidence" in support of the same charge. Id.

at 599-600.

Nothing of the kind occurred in this case. The State

presented evidence of a continuum of violence during the

evening. Defendant did not dispute that the physical attacks

26 A-2739-13T2
occurred. Furthermore, defendant inflicted the most serious

harm in the park, when he tore away Marjie's lip, inflicted

multiple blows to her head, and twice rendered her unconscious.

We perceive no realistic possibility that a minority of jurors

was willing to ground a second-degree assault conviction solely

on the head-butting incident. Rather, in order to find

defendant guilty of serious bodily injury aggravated assault,

the jurors must have been unanimous that defendant also

committed the attack in the park, and that he did so

purposefully or knowingly and not while in a disassociative

state that deprived him of the ability to know the "nature and

quality" of what he was doing or to "know that what he was doing

was wrong." N.J.S.A. 2C:4-1.

Finally, we discern no merit in defendant's challenge to

his sentence. The court's findings of fact regarding

aggravating and mitigating factors were supported by evidence in

the record; the court correctly applied the sentencing

guidelines; and the court did not abuse its discretion in

imposing its sentence. State v. Cassady, 198 N.J. 165, 180-81

(2009); State v. Roth, 95 N.J. 334, 364-66 (1984). The court

addressed the factors under State v. Yarbough, 100 N.J. 627,

643-45 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89

L. Ed. 2d 308 (1986), in deciding to impose concurrent

27 A-2739-13T2
sentences, despite the fact that defendant assaulted two victims

and committed crimes in two separate places. We are also

satisfied the court fairly considered, and rejected, defendant's

argument that mitigating factor four should be considered. We

shall not disturb that finding.

Affirmed.

28 A-2739-13T2