STATE OF NEW JERSEY v. WON K. LEE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6585-03T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WON K. LEE,

Defendant-Appellant.

 

Argued: May 1, 2006 - Decided July 28, 2006

Before Judges Fall, C.S. Fisher and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment Number 03-04-498-I.

Alan Dexter Bowman argued the cause for appellant.

Joseph Connor, Jr., Assistant Prosecutor, argued the cause for respondent (Michael M. Rubbinaccio, Morris County Prosecutor, attorney; Mr. Connor, on the brief).

PER CURIAM

Defendant Won Ki Lee appeals from his conviction on a charge of second-degree death by auto. The following factual and procedural history is relevant to our consideration of the arguments advanced on appeal.

Defendant was charged in Morris County Indictment Number 03-04-498-I with second-degree death by auto, N.J.S.A. 2C:11-5b(1). He was also charged with the following motor vehicle violations: driving while intoxicated, N.J.S.A. 39:4-50; careless driving, N.J.S.A. 39:4-97; failure to maintain lane, N.J.S.A. 39:4-88b; and reckless driving, N.J.S.A. 2C:4-96.

The charges against defendant arose from a motor vehicle accident occurring on Route 287 South on June 6, 2002, during a rainy night. The evidence adduced by the State at trial, if credited, disclosed the following. After consuming a quantity of the Korean beer called Soju at the Keoku Restaurant on Route 46 in Parsippany with friends, defendant left the restaurant at approximately 10:30 p.m., entered his 1999 Buick Regal, and drove towards his destination of Headquarters Plaza in Morristown, traveling southbound on Route 287.

Prior thereto, John Koval, an off-duty police officer, was driving his 1988 Corvette vehicle southbound on Route 287 in Montville Township when he lost control of the car, veered into the right lane and was struck by a UPS tractor-trailer vehicle being driven by John Esoff. Esoff's tractor-trailer jackknifed and came to rest, blocking the right-hand lane and part of the center lane, and pushing Koval's Corvette near the guardrail along the right-hand side of the roadway.

Koval borrowed Esoff's cell phone to report the accident, and walked back to his Corvette; Esoff remained seated in his truck, attending to his leg, which was bleeding. Another truck driver, Guy Carroll, pulled over his tractor-trailer vehicle to the south of the accident scene and walked back to offer assistance. Carroll then began placing reflective warning markers on the roadway, north of the accident scene. Patrick Lahnen, operating his truck southbound on Route 287, heard a report of the accident on his CB radio, approached the accident scene slowly, moved into the left-hand lane, and activated his emergency four-way flashers to notify motorists behind him of the accident scene.

At approximately 11:25 p.m., defendant was operating his vehicle, southbound on Route 287, behind Lahnen's truck, driving at approximately 71 miles per hour, and passed Lahnen's truck in the right lane. When he observed the accident scene to his front, defendant slammed on his brakes and his vehicle slid towards the accident scene. Carroll, who was in the process of placing the reflective warning markers on the roadway, saw defendant's vehicle rapidly approaching and jumped out of the way. Defendant's vehicle continued past Carroll and struck Koval, who had been standing next to his vehicle near the guardrail. Koval was thrown onto defendant's windshield and hurled sixty to seventy feet into the woods adjacent to the guardrail; he was apparently killed instantly by the impact. An autopsy of Koval's body disclosed that Koval was under the influence of alcohol at the time of his death and that his blood-alcohol content was 0.16%. The evidence at trial established that defendant's vehicle was traveling at approximately 41 miles per hour at the time of its impact with the decedent.

When State Trooper Ken Gyongyosi arrived at the scene, he found defendant sitting in the back of a Montville ambulance. Trooper Gyongyosi observed that defendant was unstable, his eyes were bloodshot, and his breath emanated an odor of an alcohol beverage. When asked, defendant replied that he had consumed one beer.

Trooper Gyongyosi then conferred with Trooper Brian LaLonde, who had arrived at the scene. Trooper LaLonde proceeded to speak with defendant. Trooper LaLonde noticed that defendant was confused, appeared tired, was slow to respond to questions, and there was a strong odor of an alcoholic beverage emanating from him. Defendant gave Trooper LaLonde a confusing explanation of what had occurred and denied having consumed any alcoholic beverages. Considering these observations, Trooper LaLonde decided to administer field sobriety tests to defendant. Defendant was unable to satisfactorily perform roadside sobriety tests administered by Trooper LaLonde. The Trooper arrested defendant, charging him with driving while under the influence of alcohol.

Defendant was transported to the Netcong State Police Barracks for breathalyzer testing, which was administered by Trooper Dave Kolesar. A breath sample taken at 1:21 a.m. on June 7th disclosed a blood-alcohol reading of 0.13%. Another sample taken at 1:30 a.m. yielded a reading of 0.14%. Upon further questioning, defendant stated he had consumed less than half a glass of beer six to eight hours earlier.

Because the Troopers were concerned as to whether defendant had provided a full sample of his breath, defendant was then transported to St. Clare's Hospital in Denville for blood testing. At 3:35 a.m., a blood sample was taken from defendant which, when tested, yielded a blood-alcohol content reading of 0.159%.

A State-employed motor vehicle mechanic examined both Koval's Corvette and defendant's Buick on June 7, 2002, concluding that both were in good working condition and had no preexisting defects that might have contributed to the cause of the accident.

Tried to a jury, defendant was convicted of the second-degree death-by-auto charge. The trial judge then convicted defendant of all motor vehicle summonses, except for the failure-to-maintain-lane charge. On sentencing, the trial judge imposed a four-year term of imprisonment, subject to an eight-five percent parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant's driver's license was suspended for a period of five years following his release from prison. Applicable minimum mandatory fines and penalties were also assessed. The minimum fines, penalties and driver's license suspension on the N.J.S.A. 39:4-50 conviction were imposed, and the careless and reckless driving convictions were merged.

On appeal, defendant presents the following arguments for our consideration:

POINT I

APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL (Not Raised Below).

POINT II

ELICITATION OF INADMISSIBLE EXPERT TESTIMONY DENIED APPELLANT A FAIR TRIAL (Not raised Below).

POINT III

THE TRIAL COURT ERRED IN PERMITTING DR. BRETTELL TO TESTIFY IN MATTERS OUTSIDE THE REPORT PROVIDED TO THE DEFENSE IN DISCOVERY.

I.

Defendant contends he was denied effective assistance of counsel at trial. The Sixth Amendment of the United States Constitution guarantees every criminal defendant the assistance of legal counsel in his or her defense. Strickland v. Washington, 466 U.S. 668, 685, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984). The right to counsel is expansively viewed as the right to the effective assistance of counsel. Ibid.

In order to establish a claim for ineffective assistance of counsel, a defendant must satisfy the two-prong test set out by the Strickland Court:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

[Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.]

The standards embodied in the Strickland test have been adopted by New Jersey courts. State v. Fritz, 105 N.J. 42, 58 (1987).

Defendant contends that he was denied effective assistance of trial counsel because his attorney failed to present testimony from individuals who would have rebutted the State's assertion that defendant had consumed the equivalent of two "Soju" beers, and erroneously convinced defendant not to testify.

After analyzing the record in the light of the written and oral arguments advanced by the parties, we conclude that these claims of ineffective assistance of counsel involve allegations and evidence that lie outside the trial record and should, therefore, be considered in the context of an application for post-conviction relief pursuant to R. 3:22-2. See State v. Preciose, 129 N.J. 451, 460 (1992) (noting that "[i]neffective- assistance-of-counsel claims are particularly suited for post-conviction review because they often cannot reasonably be raised in prior proceedings"). See also State v. Howard, 383 N.J. Super. 538, 546 (App. Div.) ("claims of ineffective assistance of counsel are particularly well-suited to post-conviction relief proceedings because in most instances the claims require development of a record beyond the trial record"), certif. denied, ___ N.J. ___ (2006).

Here, the trial record does not contain facts sufficient to establish the claims he has made. Whether defendant is able to demonstrate a sufficient nexus between these ineffective-assistance claims and the Strickland standards must be determined in a properly-supported petition for post-conviction relief.

II.

Defendant further argues that the elicitation of inadmissible expert testimony denied him the right to a fair trial. Specifically, defendant contends that the trial judge erred in permitting the State's expert, Trooper Gyongyosi, to testify that the victim could not have avoided being struck by defendant's vehicle even if he had not consumed an alcoholic beverage.

Trooper Gyongyosi was qualified as an accident reconstruction expert. During his cross-examination, Trooper Gyongyosi stated that with respect to Koval's accident with Esoff's UPS truck, Koval had been driving too fast for the road conditions and he had been under the influence of an alcoholic beverage. On re-direct, the following colloquy ensued between the prosecutor and Trooper Gyongyosi:

Q. In regards to the information that you have about the victim in this case, Mr. Koval, you indicated that you're aware of a blood-alcohol level that he had.

A. Yes.

Q. And you indicated that -- did you take that into consideration in your determination that he could not have done anything to move out of the way?

A. Yes.

Q. And what did you conclude?

A. I, just from the location where he's standing, and the time that this event is taking place, his actions prior to the crash and by the time he would have realized the vehicle was coming towards him, to observe it, react, and move, he would have never been able to get out of the way.

Q. Even a sober person, completely sober, no alcohol, wouldn't have been able to. Is that your conclusion?

A. If they're not looking down the roadway, and they're just standing there, yes. That's my conclusion.

First, we note that there was no objection to this testimony. Accordingly, we apply our plain-error standard of review and will not reverse unless the defendant demonstrates an error that is "clearly capable of producing an unjust result." R. 2:10-2. Second, in his cross-examination of Gyongyosi, defense counsel did not suggest that Koval could have gotten out of the way had he not been intoxicated. Rather, through his questioning of Gyongyosi, defense counsel suggested that Koval's intoxication had clouded his judgment and that is why he had not been facing the oncoming traffic.

The trial judge explicitly instructed the jurors with respect to Trooper Gyongyosi's qualification as an accident reconstruction expert, stating:

[T]he Trooper will be qualified as an expert, but I want to caution you that certainly, take into account his knowledge, his skill, experience, training, his opinion, but you're not bound in any way by that opinion. It's meant to be of assistance ultimately to you because you and only you will be determining the facts of the case and the value of the weight of this opinion.

We find no plain error in the admission of this testimony into evidence. Although his testimony was not unassailable or perfectly reliable, Gyongyosi was present at the accident scene, and had surveyed the locations of the vehicles, was aware of the speed of defendant's vehicle, knew that Koval had not been facing oncoming traffic at the time he was struck, and had significant experience as a state trooper and expertise as an accident reconstruction expert. Thus, there was a sufficient basis to support his estimations about the physical dynamics of the accident scene and the reaction times of vehicles and pedestrians. Moreover, because these jurors did not have any opportunity to visualize the circumstances themselves, this testimony aided the jury in determining the causation element of these offenses.

The defense also had a full and fair opportunity both to cross-examine Gyongyosi and to present the testimony of its own accident reconstruction expert, Dr. Ira Robert Ehrlich. Dr. Ehrlich testified that defendant's failure to avoid striking the victim

was a result of partially poor visibility to the rain; the wet roadway that causes Buick tires to not -- if you want to call them hydroplane, not get full braking, and to reduce their braking effectiveness, and the tractor trailer blocking both lanes which gave him -- limited his ability to get out of the way. And Lanhan's tractor trailer blocking his escape to the left.

Dr. Ehrlich did not address the issue of Koval's intoxication as a causation factor in the accident.

Defendant's reliance on State v. Baskerville, 324 N.J. Super. 245 (App. Div. 1999), certif. denied, 163 N.J. 10 (2000), is inapposite. In that case, the defendant was convicted of distributing a controlled substance. On appeal, the defendant argued that the State had presented an improper expert opinion at trial. Id. at 246-47. On appeal we reversed, noting that the drugs had actually been found on another person and the evidence, other than the expert opinion that defendant had distributed drugs, did not provide the jury with a substantial basis for a conviction. Id. at 263-64. The expert had expressed an opinion as to the ultimate issue in the case whether defendant was guilty of drug distribution which we concluded was unduly prejudicial. Id. at 263.

Here, Gyongyosi did not express an opinion as to the ultimate issue in this case whether defendant was guilty of death by auto. Gyongyosi merely testified as to his opinion as to the physical capability of the victim to avoid being struck by defendant's vehicle, regardless of his sobriety.

Accordingly, we conclude that this portion of Gyongyosi's testimony, even if error, was not clearly capable of producing an unjust result.

III.

Defendant also argues that the trial judge erred in permitting Dr. Thomas Brettell, the Director of the Forensic Laboratory Bureau for the New Jersey State Police, to testify to matters outside the report provided to the defense in discovery. Specifically, defendant contends that the court erred by allowing Dr. Brettell to testify as to the alcohol content and effects of Soju. We disagree.

Rule 3:13-3(c)(9) states that an expert witness must submit a report regarding the subject of his or her testimony. If no report is provided, then a statement of the facts and opinions the expert will testify to, and their bases, must be provided. Ibid. Procedures for discovery are designed to eliminate the element of surprise at trial by requiring a litigant to disclose the facts upon which a cause of action is based, ensuring that the litigation is decided on the merits rather than on the craftiness of the parties or the guile of their counsel. McKenney v. Jersey City Med. Ctr., 167 N.J. 359, 370 (2001).

Accordingly, "[a] party has a continuing duty to disclose the opinions of his experts, and a failure to do so may, in the trial judge's discretion, result in the exclusion of that expert's opinion evidence." Fanfarillo v. E. End Motor Co., 172 N.J. Super. 309, 312 (App. Div. 1980). However, "[t]he necessity for, or propriety of, the admission of expert testimony, and the competence of such testimony, are judgments within the discretion of the trial court." State v. Zola, 112 N.J. 384, 414 (1988). Thus, the trial court's decision to admit such testimony will not be reversed absent an abuse of discretion. See Serenity Contracting Group v. Fort Lee, 306 N.J. Super. 151, 159 (App. Div. 1997).

Here, the State submitted a report from Dr. Brettell. The subject matter of that report involved blood-alcohol levels and the number of drinks required to reach certain levels. At the grand jury, Dr. Brettell testified as to blood-alcohol levels of defendant based on both the breathalyzer tests and the blood test. Dr. Brettell also testified regarding his estimation of the amount of alcohol consumed in particular periods of time and the effect that would have on the blood-alcohol levels in defendant's body.

Thus, we conclude that when Dr. Brettell testified at trial regarding Soju and its effects, he was merely providing more detail to an area of testimony within the same subject matter as conveyed in his report, and to what he had testified to during the grand jury proceedings. The trial judge properly exercised her discretion in ruling that Dr. Brettell's testimony at trial regarding the Soju beer fell within the subject matter range of his report and grand jury testimony.

We also note that this testimony should not have caused any surprise or prejudice to the defendant because the defense should have already been on notice of the Soju beer and its specific alcohol content from separate testimony at grand jury. Agent Gary Gouck testified to the following during the grand jury proceedings:

Q: And what did they do at the restaurant?

A: They ate. And they ate and drank and talked.

Q: And did you -- were you able to obtain their bill?

A: Yes, I did.

Q: And did it show if there had been any alcoholic beverages purchased on the bill?

A: Yes. On the bill it did show that there was two bottles of Soju that were purchased by the party.

Q: And this was three people together at this restaurant. All those people are on one bill?

A: Correct.

Q: And so, to that table of three people two Sojurns are --

A: Two Soju. Yeah. S-o-j-u. That's a Korean beer. Actually kind of like a malt beverage.

Q: Do you know what its alcohol content is?

A: I have that written down here.

Q: A little higher than a regular beer?

A: Yes. I think the exact content -- I thought I had it written in the report. Oh. I'm sorry. It is. I don't know how to pronounce the first name, but the owner of the restaurant said that it is a malt beverage. It's a Korean beer. It's 22 percent alcohol by volume and the bottle was three -- each bottle was 375 milliliters.

Accordingly, we find no misapplication of discretion by the trial judge in permitting Dr. Brettell's testimony on that issue.

Affirmed.

 

Footnote continued on next page.

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A-6585-03T2

July 28, 2006