STATE OF NEW JERSEY v. BRIJESH H. SHAH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5630-07T45630-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

BRIJESH H. SHAH,

Defendant-Appellant.

__________________________________

 

Argued: June 3, 2009 - Decided:

Before Judges Cuff and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-09-00936.

Joseph J. Benedict argued the cause for appellant (Benedict and Altman, attorneys; Mr. Benedict and Philip Nettl, on the brief).

Meredith L. Balo, Assistant Prosecutor, argued the cause for respondent (Theodore J. Romankow, Union County Prosecutor, attorney; Ms. Balo, of counsel and on the brief).

PER CURIAM

A jury found defendant Brijesh Shah guilty of first degree vehicular homicide, N.J.S.A. 2C:11-5, and third degree leaving the scene of a fatal accident, N.J.S.A. 2C:11-5.1. The judge imposed a seven-year term of imprisonment with an 85% parole ineligibility term for vehicular homicide and a consecutive term of three years in prison for leaving the scene of a fatal accident. The judge also imposed all appropriate fines, assessments, and penalties. Defendant remains free on bail pending appeal.

I

The conviction arises from a collision of a motor vehicle driven by defendant and a bicycle ridden by the victim, James Lake. On May 9, 2006, defendant was driving south on St. Georges Avenue in Rahway at approximately 9:50 p.m. The roadway is a busy, four-lane road connecting several Union County towns. On his way home from work, defendant stopped at a liquor store where he purchased a small bottle of Irish whiskey. He then drove to a Hess Station in Linden, a neighboring town, where he drank the whiskey. Having purchased gasoline and consumed his drink, defendant proceeded driving south on St. Georges Avenue.

The victim was riding a bicycle and was attempting to cross St. Georges Avenue. The traffic was not heavy at the time, but the victim was carrying a pizza in a box on top of which he had placed a six-pack of beer. The victim was also very intoxicated; his blood alcohol registered 0.417. As the victim crossed traffic, defendant was driving in the lane closest to the double yellow line separating the north- and south-bound traffic. The victim had crossed the road halfway and was stopped on the double yellow line. Defendant moved from the left lane to the right to pass a car in front of him and immediately returned to the left lane. At this point, the bicycle was moving and defendant struck him.

Manuel Arismendi, one of the motorists who defendant passed, testified that he had seen the victim on his bicycle in the middle of the roadway and had applied his brakes to slow down. At the same time, he observed in his rearview window defendant quickly approach him from behind. He saw defendant move quickly to the right to pass him and then quickly to the left to resume travel in the left lane. In fact, Arismendi testified that defendant "cut [him] off," and estimated defendant's speed at 60 m.p.h. Arismendi also stated that he saw the victim and could have avoided hitting him.

Cesar Rebolledo, another motorist traveling south-bound in the right lane on St. Georges Avenue that evening, testified that he noticed defendant's car weaving in and out of traffic. As defendant approached Rebolledo, defendant moved from the left lane to the right lane, and "pretty much cut [Rebolledo] off." The posted speed limit was 35 m.p.h.; Rebolledo estimated that he was traveling at 30 m.p.h., and defendant was driving at approximately 40 m.p.h. Rebolledo observed defendant return to the left lane quite close to another car and then saw debris fly through the air. He described the time interval between the time he first saw the bicycle and the debris as "very fast."

Defendant testified at trial. He asserted that he drove cautiously and did not exceed the speed limit. He admitted the consumption of a slightly larger than airline-size bottle of Irish whiskey shortly before the accident but denied that he was intoxicated at the time. He also denied that he was conscious at the time that he struck a person. He thought he had struck a large dog. He also explained that the mint smell detected by the officer was attributable to an Indian tobacco he chewed; he denied that he tried to obscure the smell of alcohol.

After defendant struck the bicycle and its rider, Arismendi and Rebolledo saw defendant's brake lights and also observed him leave the scene of the accident. The victim was declared dead at the scene.

Police found defendant twenty minutes later about a block and one-half from the scene of the collision. The police officer described defendant as disoriented, covered in glass, and bleeding. He was arrested at the scene and transported to the police station.

At the police station, defendant spoke to two officers: Corporal Apice and Sergeant Desordi. Corporal Apice did not detect the odor of alcohol, bloodshot eyes, fumbling movements, flushed face, slurred speech, or any other outward signs of intoxication. Another policeman at the station, Officer Seiden, performed a horizontal gaze test on defendant and determined that he "might" be intoxicated. Corporal Apice encouraged defendant to provide the police with a blood sample, but never informed him that he could decline their request. Defendant agreed, signed a consent form, and was taken to the hospital by Officer McComb in order to draw blood. The sample recorded a blood alcohol concentration of 0.130.

Defendant returned to the Rahway Police Station, where he gave a DVD-recorded statement. He told the police about his activities prior to the accident. In response to a question about alcohol consumption, he denied drinking at the liquor store where he worked part-time or at the liquor store where he purchased the whiskey.

II

On appeal, defendant presents the following arguments:

I. The trial court erred in denying Defendant's Motion to Suppress his blood sample, which was taken without probable cause or valid consent. (raised below).

II. The State committed prosecutorial misconduct by repeatedly commenting on Defendant's silence to the police regarding consumption of alcohol on the night of the accident. (partially raised below).

III. The trial court committed prejudicial error in failing to tailor the jury charge to the facts of the case, despite promising to do so. (partially raised below).

We reverse and remand for a new trial because the trial judge omitted to tailor the charge on the issue of causation.

Defendant argues that the police did not have probable cause to require defendant to submit to a blood sample and that his consent to the blood sample was not voluntary because he was never informed he could refuse the test. The State responds that it had probable cause to obtain the blood sample.

Taking of blood from a suspect is "a search within the meaning of the Fourth Amendment." State v. Ravotto, 169 N.J. 227, 236 (2001). A suspect may consent to a search. Consent is not effective unless it is voluntary, and an essential element of a voluntary and knowing waiver is knowledge that a person has a right to refuse consent. State v. Johnson, 68 N.J. 349, 353-54 (1975). In the context of a request to search a motor vehicle, the Court has held that the motorist must be advised that he has the right to refuse to consent to a search of his car. State v. Carty, 170 N.J. 632, 647 (2002). In State v. Birkenmeier, 185 N.J. 552, 564 n.3 (2006), the Court suggested that the Carty rule is not confined to requests to search a motor vehicle. Justice Rivera-Soto wrote:

For purposes of this analysis, we assume, explicitly without deciding, that the requirements of State v. Carty apply to a request for consent to search something other than a motor vehicle addressed to a party in custody.

[Ibid.]

When the request to search involves a physical invasion of a person, we are prepared to hold that a person in defendant's position must be informed that he has the right to refuse the request.

The State argues that the officer implicitly informed defendant that he had the right to refuse consent. The State emphasizes that Corporal Apice asked defendant if he was "willing" to provide a blood sample, that "willing" involves a deliberate choice, and that defendant readily agreed to provide a blood sample. In support of its argument, the State relies on State v. Brown, 282 N.J. Super. 538 (App. Div.), certif. denied, 143 N.J. 322 (1995). In Brown, we held that asking someone "if he had a problem" allowing police to inspect a room clearly implies the right to refuse the inspection. Id. at 548. However, the person to whom the request was posed was not the defendant or in police custody. Ibid. While the language is essentially the same in this case, the circumstances are wholly different. Here, defendant was in custody and was being asked to submit to a physical invasion of his body.

While we have considerable doubt that defendant's consent to the blood sample can be considered knowing and voluntary because he was never informed that he had the right to refuse consent, the results of the blood sample need not be suppressed if police had probable cause to obtain a blood sample.

Defendant concedes that no warrant or consent is needed for the extraction of a blood sample, if police have probable cause to suspect a person was driving while intoxicated. Schmerber v. California, 384 U.S. 757, 771-72, 86 S. Ct. 1826, 1836, 16 L. Ed. 2d 908, 920 (1966); State v. Dyal, 97 N.J. 229, 238 (1984); State v. Woomer, 196 N.J. Super. 583, 586 (App. Div. 1984). Defendant argues that police did not have probable cause to believe he was intoxicated at the time of the accident.

Probable cause to search an individual generally is defined as a well-grounded suspicion or belief on the part of the searching officer that a crime has been or is being committed. Wong Sun v. United States, 371 U.S. 471, 479, 83 S. Ct. 407, 413, 9 L. Ed. 2d 441, 450 (1963); State v. Alston, 88 N.J. 211, 231 (1981); State v. Guerrero, 232 N.J. Super. 507, 511 (App. Div. 1989). It is incumbent on the State to establish probable cause by a fair preponderance of the evidence. State v. Patino, 83 N.J. 1, 22 (1980). In other words, the prosecutor is required to produce those facts which led the officer to conclude that his search was based on probable cause. Id. at 13.

A warrantless extraction of blood is reasonable if certain criteria are met. There must be exigent circumstances making it too difficult to obtain a warrant, State v. O'Loughlin, 270 N.J. Super. 472, 490 (App. Div. 1994), and the sample must be taken in a medically acceptable manner, Ravotto, supra, 169 N.J. at 240. A blood sample to measure alcohol concentration is particularly well-suited to the warrant exception given the rate at which the body metabolizes alcohol. Schmerber, supra, 384 U.S. at 770-71, 86 S. Ct. at 1836, 16 L. Ed. 2d at 920.

In O'Loughlin, supra, we held in dicta that probable cause existed to obtain a blood sample without the consent of the driver. The driver had been involved in a rear-end hit on the George Washington Bridge and one of two cups found in the car was moist and smelled of alcohol. Id. at 481. Defendant admitted consumption of alcohol several hours before the accident but exhibited no signs of intoxication. Id. at 489-90. See State v. Reynolds, 319 N.J. Super. 426, 434 (App. Div. 1989) (probable cause found that the defendant was intoxicated when driver at a DWI roadblock, who emitted a faint smell of alcohol, evaded a police officer's direction to exhale in his direction).

Here, defendant was found a block and one-half away from the accident scene. He was disoriented, covered in blood and stated he believed he had hit a big dog. On the other hand, it was dark and the officer did not detect the smell of alcohol but did detect a strong smell of mint. The officer noted that mint is often used to disguise the smell of alcohol. The officer did not observe bloodshot eyes, fumbling movements or any other outward signs of intoxication. At the police station, another officer administered field sobriety tests and reported to Corporal Apice that defendant might be intoxicated.

Admittedly, the facts conflict and do not unequivocally support a finding of intoxication. However, certainty is not the test. Police simply had to establish a well-grounded suspicion or belief that the driver was intoxicated. Alston, supra, 88 N.J. at 231; O'Loughlin, supra, 270 N.J. Super. at 489-90. The State satisfied that test. Therefore, we hold that the court properly denied the motion to suppress the results of the blood test.

Defendant also urges that the prosecutor committed misconduct by commenting on defendant's silence to the police regarding his alcohol consumption on the night of the accident. During the summation, the prosecutor commented on a question posed to defendant during his videotaped interview at the police station and his response. He said:

The question that appears on the DVD, you saw it, the question from Corporal Apice, "Were you drinking anything, at all, anything at the liquor store? No. Anything, at all? Anything at the liquor store"? It's up for you to decide. The bottom line is, he knew they were asking [him] about alcohol, he didn't tell them. That is a pretty fine hair to split, "I didn't have anything at the liquor store."

In addition, defendant objects to a question posed during cross-examination of defendant's expert. The prosecutor asked whether he "took [defendant's] word for it." Defense counsel objected, and a side bar discussion ensued at which a dispute arose about the question posed to defendant by the police about alcohol consumption. During this side bar, the prosecutor stated that he wished to ask the expert whether "he knows or the evidence is that the defendant denied having anything to drink." Defendant objected, the trial judge sustained the objection and the question was never posed to the expert. Therefore, defendant's contention that this inquiry compromised his right to remain silent is without merit. As to the summation, defendant also argues that the State asked the jury to judge him on his silence. We disagree.

The Fifth Amendment to the United States Constitution provides: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury . . . nor shall be compelled in any criminal case to be a witness against himself . . . ." U.S. Const. amend. V. An individual's right to be free from "compulsory self-incrimination is . . . protected by the Fourteenth Amendment against abridgment by the States." Malloy v. Hogan, 378 U.S. 1, 6, 84 S. Ct. 1489, 1492, 12 L. Ed. 2d 653, 658 (1964). Accordingly, the privilege against self-incrimination prohibits "either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt." Griffin v. California, 380 U.S. 609, 615, 85 S. Ct. 1229, 1233, 14 L. Ed. 2d 106, 110 (1965). In addition, a prosecutor may not elicit testimony from a witness at trial that makes reference to a defendant's silence at or near the time of his or her arrest. State v. Muhammad, 182 N.J. 551, 565-69 (2005).

The comment in the summation is markedly different than in Muhammad, where the prosecutor made repeated and purposeful references to the defendant's silence at or near the time of his arrest through questions to several witnesses and during summation. Here, defendant did not by words or actions invoke his right to remain silent. He agreed to speak to police. He testified at trial at which time he reiterated his earlier statement to police about his alcohol purchase and consumption, and he was subject to cross-examination on this subject.

When a defendant has been informed of his right to remain silent but has freely and voluntarily waived his right to remain silent and given a statement to police and has testified at trial, he can be expected to be questioned about any inconsistencies in his statements. State v. Elkwisni, 190 N.J. 169, 179 (2007). That is this case. We discern no error in comments by the prosecutor on whether the information provided by defendant about his alcohol consumption is consistent with the evidence presented by the State and his trial testimony on that subject, particularly when defendant had professed repeatedly that he wished to cooperate fully and had nothing to hide.

Finally, defendant argues that the trial judge failed to tailor the charge to the facts of the case. Interestingly, defense counsel provided a request to charge, the issue was addressed at the charge conference immediately prior to summations, and the judge agreed to provide the charge requested by defendant. When the judge delivered the charge, he omitted the requested and approved language and defendant uttered no objection. We need not decide whether we must apply the plain error standard of review because we are satisfied that the charge did not provide adequate guidance to the jury that it was required to consider the conduct of the victim and defendant in its assessment of causation.

Several issues were hotly disputed at trial including whether defendant was intoxicated at the time he struck the victim, the speed at which he was traveling at the time of and before the accident, whether defendant was weaving in and out of traffic, and whether he had "cut off" any other vehicles. Whether the conduct of defendant or the victim caused that accident was also vigorously disputed.

The prosecutor and defense counsel submitted requests to charge on the causation issue and after an extended discussion, the trial judge stated:

What I'm really just trying to do is stay within this proposed charge. Normally, what I do is at the end of the charge I will give a factual allegation as to what happened. All right? It might be wiser to say this within the body of the charge, to say the first paragraph, all right, and then at the end of the case say that, in this case the State alleges that [the victim]'s conduct, that alleges that regardless of [the victim]'s conduct it was the defendant's conduct, including his alleged impairment due to alcohol, speeding and weaving in and out of the traffic lanes that caused Mr. Lake's death, and then to say, on the other hand, the defense theory of the case is that they deny he did those things, or the alternative, if you find he did those things then it was [the victim]'s conduct that caused the accident.

So I would say that at the end of the charge and not within the body of the charge.

We, therefore, discern from the transcript of the charge conference that the judge intended to provide a summary of defendant's contentions regarding causation and the State's counterargument, and the judge proposed to use the following language or a variation of this language:

[T]he defense denies that the defendant was impaired by alcohol, was not speeding or weaving between lanes, and alleges that it was [the victim's] own conduct, in trying to cross the street through traffic while intoxicated, that caused his own death.

Both counsel agreed that this language was acceptable and further agreed that it should be inserted at the close of the entire instruction on the substantive law governing the charges against defendant. The judge omitted the summary of defendant's and the State's position on causation at the close of the jury instructions.

Appropriate and proper jury charges are essential to a fair trial. State v. Savage, 172 N.J. 374, 387 (2002). It is a well-settled principle that, when an appellant raises error in the jury charge, those "portions . . . alleged to be erroneous cannot be dealt with in isolation but the charge should be examined as a whole to determine its overall effect." State v. Wilbely, 63 N.J. 420, 422 (1973). In addition, "a party is not entitled to have the jury charged in words of his own choosing." Kaplan v. Haines, 96 N.J. Super. 242, 251 (App. Div. 1967), aff'd o.b., 51 N.J. 404 (1968), overruled on other grounds by Largey v. Rothman, 110 N.J. 204, 213 (1988). All that is necessary in order to withstand appellate review is that the charge, as a whole, be accurate. Wilbely, supra, 63 N.J. at 422.

Erroneous jury instructions are "poor candidates for rehabilitation under the harmless error philosophy." State v. Simon, 79 N.J. 191, 206 (1979). Indeed, the harmful effect of errors of this character "cannot be readily measured by the empirical or objective assessment of the evidence bearing upon the defendant's guilt." Ibid. Accordingly, when "dealing with the breach of fundamental procedural safeguards" that are designed to assure a fair trial, a reviewing court should not invoke the harmless error rule without some measure of caution. Ibid.

The trial judge instructed the jury as follows on the issue of causation:

Thus, the charge on causation provided to the jury is as follows:

Vehicular homicide. Criminal homicide constitutes vehicular homicide when it is caused by driving a vehicle recklessly.

In order [for] you to find the defendant guilty of this crime the State must prove beyond a reasonable doubt each of the following elements:

One, that the defendant was driving a vehicle.

Two, that the defendant caused the death of Mr. Lake.

Three, that the defendant caused such death by driving the vehicle recklessly.

In order for you to find the defendant caused Lake's death you must find that Lake would not have died but for the defendant's conduct.

Now, there is an issue as to causation. In order to find the defendant caused Mr. Lake's death you must find the following:

One, that Mr. Lake would not have died but for the defendant's conduct, and,

Two, that Mr. Lake's death was not too remote, accidental in its occurrence or dependent on another's volitional act to have a just bearing on the defendant's liability or on the gravity of his offense.

It is for you to decide based upon all the evidence whether the State has proven beyond a reasonable doubt that the defendant caused Mr. Lake's death.

Although the Court has stated that a small error in the identification charge may be overlooked when the arguments of counsel focus the jury's attention on the facts that may undermine an identification, State v. Robinson, 165 N.J. 32, 47 (2000), the Court has also held that the trial judge bears the responsibility to mold the instruction to the facts when causation is an issue, State v. Martin, 119 N.J. 2, 16 (1990). In Martin, a woman died in a building fire. A jury found the defendant guilty of knowing and purposeful murder, felony murder, arson, and aggravated arson. Id. at 5. A central issue in the case was causation. The Court found that the instruction delivered to the jury on the issue of causation was consistent with the State's version but never mentioned the defendant's contention that causing death or serious bodily injury was neither designed nor contemplated by him. Id. at 16-17. The Court held that the defendant was entitled to a charge that was consistent with his version of the facts. Ibid.

Here, defendant admitted that he had consumed a small bottle of whiskey shortly before the accident but vehemently denied that he was intoxicated or drove recklessly. Moreover, he argued that any driver confronted with a highly intoxicated man on a bicycle carrying food and beverages while trying to cross a busy four-lane street in the dark would not have been able to avoid hitting the victim. Stated differently, defendant argued that drunk or sober, reckless or cautious, the accident was unavoidable and the jury should have had this proposition placed sharply in front of it in the jury charge.

We readily admit that the evidence was sufficient for the jury to conclude that the death of the victim was casually connected to defendant's conduct. On the other hand, it was entirely possible that this jury could have found that the victim's conduct created a situation where defendant's conduct had no bearing on the ultimate result. It is this circumstance that causes us to find that the omission of the language that would have starkly summarized the contentions of the State and defendant on the issue of causation warrants a new trial. Our concern is underscored by the jury's request for reinstruction on the issue of recklessness, and the judge's decision, with the concurrence of counsel, simply to reread the portion of the charge on recklessness, to provide the jury with the written portion of the jury instruction on recklessness, and to remind the jury that there are three elements of vehicular homicide, one of which is that defendant caused a death while driving recklessly. Repetition of abstract definitions and concepts without illustration informed by the facts and contentions of the parties does little to illuminate the issue of concern.

Accordingly, we hold that the failure to tailor the facts to the charge, specifically the causation charge, requires a new trial.

Reversed.

 

The judge sentenced defendant to a term one degree lower as permitted by N.J.S.A. 2C:44-1f(2), when the court is clearly convinced that the mitigating factors substantially outweigh the aggravating factors and where the interest of justice demands this disposition.

We note that this question comes perilously close to asking the witness to comment on the credibility of another witness. State v. Bunch, 180 N.J. 534, 549 (2004).

There is some suggestion that the questions posed by Corporal Apice are subject to at least two interpretations which may have rendered defendant's trial testimony inconsistent with his earlier statement. The questions could be viewed by some as an inquiry into whether defendant had consumed any alcohol at any time at any place on the evening of the accident. If someone interpreted those questions in that fashion, we see no difficulty in asking a jury to evaluate defendant's credibility following his stated intention to fully cooperate with police. On the other hand, some could view the questions as a very focused inquiry about alcohol consumption at a specific place. In that event, the jury would likely not draw any negative inference about defendant's credibility.

(continued)

(continued)

20

A-5630-07T4

August 3, 2009