State v. Michael Coppola, unpublished opinion, App. Div. Docket No. A-0256-08T4 (September 7, 2010) – Convictions reversed.
Defendant argues … that it was plain error for the medical examiner to have been permitted to testify that it was ‘a medical certainty’ that the nature of the injuries the victim suffered ‘strongly suggest Mr. Vogel was incapacitated. To what degree, I cannot really say. Obviously, it was not in the degree where he can put up an active, resistant … fight.’… The questions put to the medical examiner were specific, not general and hypothetical in nature…. [H]is expertise did not warrant his conclusions about the conduct of the victim when the wounds were inflicted. His testimony should have been limited to the nature of the wounds on the victim’s body and the absence of wounds. By going one step further, he intruded into the jury’s province. The probative value of his testimony was substantially outweighed by the risk of prejudice in this case…. The medical examiner acknowledged not having seen the video of the crime scene, and having only engaged in a conversation with the prosecutor about the matter. His speculation that Vogel was incapable of resistance cut mortally into the heart of defendant’s theory of the case…. It is noteworthy that in denying defendant’s motion for a new trial, the court relied upon an opinion the expert did not express, namely, that the victim’s level of intoxication rendered him incapable of resistance. The expert never made that statement. This mistaken recollection was a natural consequence of the medical examiner’s overbroad testimony, however. We are satisfied that … the expert testimony regarding the victim’s ability to resist was highly prejudicial….
“Defendant also argues … that the trial court erred by permitting Aburomi to read to the jury verbatim his police report summary of A.M.’s at-the-scene statement, admitted on the basis that it was an excited utterance, an exception to the hearsay rule. See N.J.R.E. 803(c)(2). Defendant contends that the reading of the nearly 400-word police report was not only error but highly prejudicial, as it included A.M.’s accusation that defendant ‘raped’ her…. The State failed to establish the necessary evidentiary foundation for the admission of A.M.’s account as an excited utterance, therefore the judge erred in his admission of the statement. It is not clear from the foundation the State attempted to establish whether A.M.’s narrative was an ‘uncontrolled response from shock before reflection would allow the statement to be fabricated or influenced by self-interest.’… The factual question left unanswered by the State and ignored by the judge was whether ‘the declarant had the opportunity to deliberate or fabricate the testimony.’… On this prong of the excited utterance exception, the nature of the statement is a critical consideration…. Statements consisting of narratives of past events in response to police questioning are generally not considered statements exclamatory of and coincident with the happening of the startling event…. This error was compounded by permitting Aburomi to read A.M.’s statement…. It was an abuse of discretion to permit him to read A.M.’s statement to the jury both because he remembered it and therefore did not need to read it, and because even if he had testified from memory, no proper foundation was established prior to admission of the material.”