STATE OF NEW JERSEY v. ANTHONY S. GENTILELLO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0671-04T20671-04T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANTHONY S. GENTILELLO,

Defendant-Appellant.

 

Argued October 6, 2005 - Decided

Before Judges Conley, Weissbard & Winkelstein.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, 03-01-0029-I.

Kevin G. Roe argued the cause for appellant (Mr. Roe, attorney; Nina C. Remson and Adamo Ferreira, on the brief).

Steven A. Yomtov, Deputy Attorney General, argued the cause for respondent (Peter C. Harvey, Attorney General, on the brief; Natalie A. Schmid Drummond, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant was indicted by an Ocean County Grand Jury on January 8, 2003, charged with the following: second-degree death by auto (vehicular homicide), N.J.S.A. 2C:11-5, (count one); three counts of third-degree assault by auto, N.J.S.A. 2C:12-1(c)(1)&(2), (counts two, three and four); and one count of third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a(1), (count five). Defendant was also issued summonses for driving while intoxicated, N.J.S.A. 39:4-50, and reckless driving, N.J.S.A. 39:4-96. The jury convicted defendant of second-degree vehicular homicide; and three counts of fourth-degree assault by auto, rather than third-degree assault by auto, having found the victims' injuries constituted "bodily injury" as opposed to "serious bodily injury."

At sentencing on September 17, 2004, defendant moved for a judgment of acquittal notwithstanding the verdict, and in the alternative, to set aside the verdict and for a new trial. After denying those motions, the trial judge, based on the trial proofs, found defendant guilty of driving while intoxicated; he also merged the reckless driving charge into the second-degree vehicular homicide count, and dismissed the reckless driving charge "by way of merger."

The judge imposed the following sentence: on the vehicular homicide conviction, a seven-year term of imprisonment with an eighty-five percent period of parole ineligibility; on each of the assault by auto convictions, a nine-month term of imprisonment, each concurrent with the other and with the sentence imposed on the vehicular homicide conviction. On the driving while intoxicated conviction, the court imposed a $500 fine, suspended defendant's driver's license for six months, and imposed other appropriate fines, conditions and surcharges.

On appeal, defendant raises the following legal arguments:

I. THE TRIAL COURT IMPROPERLY DENIED DEFENDANT'S MOTION TO DISMISS THE INDICTMENT ON THE GROUNDS THAT THE GRAND JURY WAS PRESENTED WITH INCOMPETENT EVIDENCE THROUGH (A) PREJUDICIAL OPENING REMARKS OF THE PROSECUTOR CONTAINING FACTUAL STATEMENTS USURPING THE FACT FINDING FUNCTION OF THE GRAND JURY, (B) INCOMPETENT POLICE TESTIMONY CONCERNING THE ACCIDENT'S OCCURRENCE AND DEFENDANT'S STATE OF INTOXICATION, AND (C) EVIDENCE OBTAINED THROUGH AN UNLAWFUL SEARCH OF DEFENDANT'S VEHICLE.

II. THE TRIAL COURT ERRED BY DENYING DEFENDANT'S MOTION TO DISCLOSE RELEVANT MEDICAL EVIDENCE MATERIAL TO THE ISSUE OF CAUSATION OF THE FATAL ACCIDENT.

III. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS STATEMENT OBTAINED FROM HIM FOLLOWING HIS ARREST ON THE GROUNDS THAT THERE HAD NOT BEEN A KNOWING, VOLUNTARY AND INTELLIGENT WAIVER OF HIS CONSTITUTIONAL RIGHTS.

IV. THE TRIAL COURT IMPROPERLY DENIED DEFENDANT'S MOTION TO SUPPRESS PHYSICAL EVIDENCE ON THE GROUNDS THAT THE BLOOD DRAWN FROM DEFENDANT OCCURRED FOLLOWING AN ARREST IN THE ABSENCE OF SUFFICIENT PROBABLE CAUSE.

V. DEFENDANT WAS DENIED HIS SIXTH AMENDMENT CONSTITUTIONAL RIGHT TO CONFRONTATION BY THE TRIAL COURT.

. . . .

VI. THE CONDUCT OF THE TRIAL COURT FAILED TO MEET BASIC REQUIREMENTS OF FAIRNESS AND IMPARTIALILTY AND LIMITED DEFENSE COUNSEL'S ABILITY TO PRESENT A PROPER DEFENSE.

. . . .

VII. THE TRIAL COURT ERRED IN REFUSING TO INSTRUCT THE JURY ON THE LAW OF NEGLIGENCE AS A DEFINITIONAL DISTINCTION FROM THE ESSENTIAL ELEMENT OF RECKLESSNESS AND IMPROPERLY DEFINED RECKLESSNESS AS NEGLIGENCE TO THE JURY FOR THEIR DELIBERATIONS.

VIII. THE TRIAL COURT ERRED IN REFUSING TO INSTRUCT THE JURY ON THE DEFINITION AND ELEMENTS OF DRIVING WHILE INTOXICATED FOLLOWING THEIR QUESTION REGARDING SAME DURING DELIBERATIONS.

IX. THE JURY VERDICT IS AGAINST THE REASONABLE WEIGHT OF THE EVIDENCE AND HAS RESULTED IN A MANIFEST DENIAL OF JUSTICE UNDER THE LAW.

X. THE RECORD BELOW FAILS TO ESTABLISH GUILT OF THE DEFENDANT BEYOND A REASONABLE DOUBT . . . .

XI. THE SENTENCE IMPOSED UPON DEFENDANT WAS MANIFESTLY EXCESSIVE . . . .

We conclude that the jury instructions as they pertained to the reckless element of the vehicular homicide and assault by auto charges were likely to confuse and mislead the jury. Consequently, we reverse defendant's judgment of conviction and remand for a new trial on all charges.

I. THE FACTS

We take the facts from the trial testimony. On Sunday, October 21, 2001, at approximately 3:00 p.m., Arthur Paolucci (Paolucci or decedent), his wife, Nita Paolucci, Estelle Steinbach, and Bill Erdman were traveling westbound on Route 88 in Brick Township in Paolucci's Nissan Stanza. Paolucci was driving, Erdman was a front-seat passenger, and Nita Paolucci and Steinbach were seated in the rear. Defendant was driving eastbound on Route 88 in his 1999 Jeep Cherokee. His vehicle made an abrupt left turn and crossed the yellow dividing line into the westbound lane. When Nita Paolucci heard her husband say, "Oh my God," she looked out the front window and saw defendant's vehicle coming at them. At that point, defendant's vehicle struck the Paolucci vehicle.

Kevin Kennedy was traveling directly behind the Paolucci vehicle. He observed defendant's vehicle abruptly turn left at a ninety-degree angle, cross the yellow dividing line into the westbound lane, and strike the Paolucci vehicle. Kennedy pulled over. As he ran towards the Paolucci vehicle, he encountered defendant, who asked him if he saw the Paolucci car hit him. Kennedy replied, "Uh-uh, buddy, you hit him." During the exchange, Kennedy noticed that defendant smelled of alcohol, had bloodshot, watery eyes, and a red nose.

Another motorist, Thomas O'Malley, saw defendant make an abrupt left turn and strike the Paolucci vehicle. He testified that the Paolucci vehicle was traveling in its own lane and did nothing to cause the collision. Prior to the crash, O'Malley encountered defendant's car at a traffic light. While sitting at the red light, he observed defendant steadily honking his horn, "holding the horn down for a long time." As the light turned green, O'Malley proceeded through the intersection and defendant passed him on the right.

After the collision, Nita Paolucci asked her husband if he was alright; he replied, "My chest hurts." He was in pain. At some point, Erdman heard Paolucci state, "Oh, my arm."

At 3:05 p.m., Officer Robert Hine, of the Brick Township Police Department arrived at the scene. He observed that Paolucci was "fighting for his life" and the other passengers suffered injuries. He supplied Paolucci with oxygen and called for assistance to extricate Paolucci from the vehicle; Paolucci was trapped in the car with the steering wheel against his chest. Ultimately, emergency personnel extricated both Paolucci and Erdman by cutting through the vehicle's roof. Paolucci died at the hospital that same day. According to the autopsy, he died from a massive intra-abdominal hemorrhage due to a ruptured liver. While decedent suffered from severe heart disease, the pathologist found it to be unrelated to his death; and decedent did not suffer a heart attack on the day he died.

Defendant told Officer Hine that he was making a left turn when the Paolucci vehicle "came out of nowhere." After Hine smelled alcohol on defendant's breath, he asked him if he consumed any alcohol; defendant said no. Defendant also declined Hine's offer of first aid. Hine did not observe defendant to be injured.

By that time, Officer Reitemeyer arrived at the scene. He also smelled alcohol on defendant's breath; defendant admitted to Reitemeyer that he drank a twenty-four ounce beer. Given that admission, Reitemeyer administered field sobriety tests to defendant. After observing defendant's performance on those tests, Reitemeyer formed the opinion that defendant was impaired or under the influence of alcohol.

Hine arrested defendant and transported him to Brick Hospital to have blood drawn for analysis. After defendant signed a consent form, his blood was drawn at 3:50 p.m. Thereafter, defendant complained of back and hip pain and was taken for x-rays, which were negative. Defendant was then transported to police headquarters where he was processed. In response to questions on the processing form, he indicated that he drank a twenty-four ounce beer at 2:30 p.m. that day (Sunday) and used marijuana the previous Friday or Saturday. He did not admit to taking valium or diazepam.

At 6:00 p.m., Sergeant Donald Ling of the Traffic Safety Unit of the Brick Township Police Department escorted defendant from a holding cell to the traffic safety office so he could be interviewed by Officer Robert Appello. Before speaking with defendant, Appello read him his Miranda rights from the Miranda form. Defendant said he understood. Appello also read the waiver portion of the form. Again, defendant said he understood. He then read the form to himself and signed both the rights and waiver portions of the form.

Defendant did not testify at trial. In his taped statement to the police, he admitted to drinking one twenty-four ounce can of Budweiser thirty to forty minutes before the crash. After drinking the beer, he drank a Pepsi. Describing the accident, he told the officers he put his turn signal on, slowed down to about twenty miles per hour as he was making the turn, when the Paolucci vehicle "hit straight on into [him]."

The blood sample taken from defendant while he was at the hospital revealed that defendant's blood-alcohol content was .085 percent. The presence of diazepam, the generic equivalent of valium, and the possible presence of marijuana, were also detected. The toxicologist who performed the analysis, concluded that the diazepam had to have been ingested within three and a half hours prior to the blood draw. According to defendant's prescription records, in March 2001 he was prescribed ten milligrams of diazepam. Another toxicologist detected the presence of a marijuana constituent metabolite in defendant's blood and urine, but he did not detect diazepam in defendant's urine.

Robert J. Pandina, M.D., specializing in the field of psychopharmacology and trained in the area of developmental neuropsychology, determined that defendant's blood alcohol content was .095 percent at the time of the accident; he testified that, "[defendant] was impaired" in his ability to operate a motor vehicle at the time of the accident. He also said diazepam, which may result in dizziness, impairment of psychomotor performance, and impairment of complex reactions, was present in defendant's blood, and the ingestion of the drug occurred relatively recently before the blood was drawn.

In January 2003, Officer Michael O'Connor of the Ocean County Prosecutor's Office Vehicular Homicide Unit reconstructed the accident. Using photographs of the scene, he concluded that the victims' vehicle was traveling in the appropriate westbound lane at the time of impact. Based on physical evidence, including the scrapes in the road, the positions of final rest of the vehicles, and the damage to both vehicles, O'Connor determined that the victims' vehicle could not have crossed the dividing line and struck defendant's vehicle. He estimated that defendant's vehicle was traveling between fifteen and twenty miles per hour at the time of impact and the victims' car was traveling between forty-three and forty-eight miles per hour. The posted speed limit was forty miles per hour.

Officer O'Connor expressed the following opinions: 1) the primary causal factor of the collision was defendant's failure to make proper observations of approaching traffic in the westbound lane before making a turn from the eastbound lane; 2) defendant's failure to make proper observations of approaching traffic resulted in his failure to yield to that traffic when he initiated the left turn; 3) while the estimated speed range of decedent's vehicle was in excess of the posted speed limit, it would not have affected defendant's ability to make proper observations of its approach; and 4) neither decedent's operation of his vehicle nor the configuration of the roadway contributed to the occurrence of the collision.

At trial, defendant offered Richard Saferstein, Ph.D., an expert in forensic science. Dr. Saferstein did not believe defendant was impaired by alcohol or drugs at the time of the accident.

II. MOTION TO DISMISS THE INDICTMENT

Defendant seeks to dismiss the indictment for two primary reasons. First, he claims the prosecutor's opening remarks to the grand jury contained prejudicial factual information that usurped the grand jury's fact-finding function. Second, he argues that because Officer Appello was not a drug recognition expert or similarly qualified expert, his grand jury testimony that defendant was "under the influence" of drugs and/or alcohol, was "wholly incompetent and unduly and irreparably prejudiced the Grand Jury."

An indictment should be dismissed only on the clearest and plainest ground, where it is manifestly deficient or palpably defective. State v. Hogan, 144 N.J. 216, 228-29 (1996). Whether to dismiss an indictment is left to the sound discretion of the trial judge and will be reversed only for an abuse of discretion. State v. Warmbrun, 277 N.J. Super. 51, 59-60 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995).

Only in exceptional cases will a prosecutor's decision on how to instruct a grand jury constitute grounds for challenging an indictment. An "indictment should not be dismissed [on this ground] unless the prosecutor's error was clearly capable of producing an unjust result. This standard can be satisfied by showing that the grand jury would have reached a different result but for the prosecutor's error." State v. Hogan, 336 N.J. Super. 319, 344 (App. Div.), certif. denied, 167 N.J. 635 (2001). A prosecutor "may not participate in [a grand jury's] deliberations, or express his views on questions of fact, or comment on the weight or sufficiency of the evidence, or in any way attempt to influence or direct the grand jury in its findings rather, the grand jury must act independently of any outside source." State v. Hart, 139 N.J. Super. 565, 567-68 (App. Div. 1976).

Here, after a review of the grand jury transcript, the Law Division found that the prosecutor's conduct did not constitute "egregious prosecutorial impingement upon the independent function of the grand jury to deliberate, weigh the evidence and determine whether or not to indict." The judge noted that the prosecutor informed the grand jury that "they were to listen to the evidence from the witnesses who were to appear before them and not from himself." The court found that the prosecutor's opening statement did not have "the clear capacity to improperly and irreparably prejudice the minds of the grand jurors and usurp their fact-finding function." The judge also found that Appello's testimony as to whether defendant was intoxicated was not improper.

We agree with those findings. The prosecutor advised the grand jury of the evidence that it would see and hear throughout the proceeding. He did not express his view on questions of fact or comment on the weight or sufficiency of the evidence. The prosecutor informed the grand jury, "just listen to the evidence that you hear from the witnesses, not from me."

Nor do we find that the presentation of Appello's testimony to the grand jury amounted to prosecutorial error clearly capable of producing an unjust result. While it was conceded at trial that Appello, who did not testify at trial, did a "bad job" with the investigation, his testimony about the accident's occurrence was essentially the same as that of O'Connor, the accident reconstruction officer who did testify at trial. The prosecutor's presentation of Appello's testimony to the grand jury does not rise to the level of conduct that impinged upon the independence of the grand jury or improperly influenced its determination.

Defendant also claims that Appello's testimony to the grand jury that defendant was under the influence of a controlled dangerous substance was inadmissible because Appello was not a drug recognition expert. The motion judge determined that the prosecutor's inquiry, and Appello's response, concerned whether defendant was intoxicated from alcohol, not from drugs. That determination is entitled to deference. See State v. Guerrido, 60 N.J. Super. 505, 511 (App. Div. 1960); State v. Pichadou, 34 N.J. Super. 177, 180-81 (App. Div. 1955).

III. MOTION TO DISCLOSE MEDICAL RECORDS

Defendant next claims the trial court erred by denying his motion to require the State to disclose certain medical records that defendant claims are material to the cause of Paolucci's death. We do not find error.

Discovery in a criminal proceeding is governed by Rule 3:13-3, which provides, in part:

The prosecutor shall permit defendant to inspect . . . the following relevant material if not given as part of the discovery package under subsection (b):

. . . .

(3) results or reports of physical or mental examinations . . . made in connection with the matter . . . which are within the possession, custody or control of the prosecutor;

. . . .

(5) books, papers, documents or copies thereof, or tangible objects . . . which are within the possession, custody or control of the prosecutor.

[R. 3:13-3(c)(3)&(5).]

Discovery rulings are within the discretion of a trial court. State v. Ford, 240 N.J. Super. 44, 50 (App. Div. 1990).

Although decedent's medical records may have been relevant to the cause of his death, the Law Division did not err by denying defendant's request because the requested medical records were not in the prosecutor's possession, custody or control. A prosecutor is only required to turn over items within his possession, custody or control, not all tangible items of evidence that may be relevant and material to the case. See State v. Gordon, 261 N.J. Super. 462, 465 (1993). The State did provide defendant with all medical records in its possession. If defendant wanted additional records, it was his obligation to subpoena the custodian of the records sought. If the custodian failed to comply with the subpoena, defendant could have availed himself of court remedies for enforcement. It was not the State's obligation to obtain additional records on defendant's behalf.

IV. MOTION TO SUPPRESS DEFENDANT'S STATEMENT

Defendant argues he did not make a knowing, voluntary and intelligent waiver of his Miranda rights. We disagree.

The State must prove beyond a reasonable doubt that a defendant's confession was voluntary and was not made because the defendant's will was overborne. State v. Galloway, 133 N.J. 631, 654-55 (1993). To determine whether a defendant voluntarily waived his rights, the court must examine the totality of the surrounding circumstances, including factors such as age, education and intelligence, advice as to constitutional rights, length of detention, manner and length of questioning, and whether coercion was involved. Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S. Ct. 2041, 2047, 36 L. Ed. 2d 854, 862 (1973); State v. Miller, 76 N.J. 392, 402 (1978), rev'd on other grounds, Miller v. Fenton, 474 U.S. 104, 106 S. Ct. 445, 88 L. Ed. 2d 405 (1985). In reviewing a trial court's denial of a motion to suppress, we give deference to "the judge's assessment of credibility." State v. Padilla, 321 N.J. Super. 96, 106-07 (App. Div. 1999), aff'd, 163 N.J. 3 (2000).

In this case, defendant argues that his statement was not knowing and voluntary because he was inexperienced in criminal procedure and subject to a police dominated environment; he was not given an opportunity to call his attorney; and he was too distraught to make a knowing, voluntary and intelligent waiver of his rights. Defendant's arguments are not persuasive.

Appello advised defendant of his Miranda rights by reading the rights to him from the Miranda form; he asked defendant if he understood those rights, to which defendant responded "yes"; he read defendant the waiver portion and asked defendant if he wished to waive his rights, to which defendant responded "yes"; he testified that defendant asked to read the waiver himself and then signed the form. Judge Daniels found Appello's factual account to be credible.

The court made three additional particularized findings regarding defendant's waiver. The judge first found that the police did not threaten, promise or coerce defendant during the interrogation. Second, the court noted that law enforcement authorities are not required to ask if a defendant has an attorney or can afford one, beyond the language which is required by the Miranda form. And third, considering the totality of the circumstances, including review of the tape recorded statement of the interrogation, the court found no evidence to substantiate defendant's claim that he suffered injuries that impaired his ability to knowingly, voluntarily and intelligently waive his rights.

We find no fault with the judge's reasoning or his conclusions. Not only did defendant indicate that he understood and wished to waive his Miranda rights, he also requested to read the waiver form himself before he signed it. When asked again whether he wished to give a statement to the officers, defendant replied, "I'll talk to you unless it's something I feel I shouldn't answer."

We also conclude that the atmosphere in which defendant was questioned was not inherently coercive. When defendant was questioned at police headquarters, both officers present in the room remained seated. Neither was in uniform. The questions they directed to defendant related to events that occurred prior to the accident, how the accident occurred, and whether defendant consumed alcohol prior to the accident. These factors, in addition to those specifically noted by the Law Division, demonstrate that under the totality of circumstances, defendant made a voluntary, knowing and intelligent waiver of his rights.

V. MOTION TO SUPPRESS PHYSICAL EVIDENCE

Defendant complains that "the police did not have the requisite probable cause to establish the validity of the warrantless arrest," and the trial court improperly denied his motion to suppress the results of the blood alcohol tests. Again, we disagree.

Probable cause "is a suspicion or belief that is well-grounded in facts." Schneider v. Simonini, 163 N.J. 336, 362 (2000); State v. Wanczyk, 201 N.J. Super. 258, 266 (App. Div. 1985). To determine whether probable cause exists in a specific case, the court must analyze objectively "'what an informed, trained and reasonably experienced police officer under all of the circumstances would have understood in terms of whether there is probable cause.'" State v. Goodwin, 173 N.J. 583, 598 (2002) (quoting State v. Novembrino, 105 N.J. 95, 162 (1987) (Handler, J., concurring)). "[T]he yardstick for making [an] arrest for driving while under the influence of intoxicating liquor . . . is whether the arresting officer 'had reasonable grounds to believe' that the driver was operating a motor vehicle in violation [of N.J.S.A. 39:4-50]." Strelecki v. Coan, 97 N.J. Super. 279, 284 (App. Div. 1967). In reviewing a trial court's denial of a motion to suppress, an appellate court must give deference to "the judge's assessment of credibility." Padilla, supra, 321 N.J. Super. at 106-07.

Judge Daniels concluded that Officer Hine's testimony was credible. The court stated:

[W]hen Officer Hine arrived at the accident scene, he acted diligently in conducting his investigation to determine whether the defendant was intoxicated . . . . Officer Hine had a reasonable basis to believe the defendant was intoxicated . . . primarily predicated on: (1) the officer detecting alcohol on the defendant; (2) the defendant's statement to the officer that the defendant had consumed a 24-ounce can of beer; and (3) the defendant's failure of two physical tests.

Given those facts, the motion judge found that reasonable grounds existed to take specimens of bodily substance, and that probable cause existed to arrest defendant without a warrant.

We agree. Upon asking defendant to provide his version of the accident, Hine detected the odor of alcohol on defendant's breath. He observed that defendant was in a very excited state, would not stand still, and had bloodshot eyes. Defendant admitted that he consumed a twenty-four ounce can of beer; he failed two field sobriety tests. Given the totality of the circumstances, Hine had reasonable grounds to believe that defendant operated his vehicle while under the influence of alcohol.

VI. DEFENDANT'S SIXTH AMENDMENT RIGHT TO CONFRONTATION

1.

Defendant claims he should have been permitted to cross-examine Bill Erdman, a passenger in the car, about his financial interest in a civil suit he had filed as a result of the accident. He argues that Erdman's expected receipt of damages from a civil suit is probative of his credibility. When defendant asked Erdman whether he expected to receive money from the lawsuit for injuries he sustained in the accident, the court sustained the prosecutor's objection to the question on the grounds that it was irrelevant and immaterial.

"'Relevant evidence' means evidence having a tendency . . . to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. Whether evidence is relevant "is tested by the probative value the evidence has with respect to the points at issue." State v. Hutchins, 241 N.J. Super. 353, 358 (App. Div. 1990). N.J.R.E. 607 provides, in relevant part, that "any party . . . may examine the witness and introduce extrinsic evidence relevant to the issue of credibility." On appellate review, a trial court's discretionary evidentiary rulings are accorded substantial deference. State v. Morton, 155 N.J. 383, 453 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001).

The specific evidentiary issue with regard to Erdman concerned a statement decedent made about pain in his arm. At issue was whether decedent had the pain before or after the collision with defendant's vehicle. In his first statement to police, Erdman said he heard decedent complain of arm pain stating "Oh, my arm" prior to the collision. In a second statement, Erdman said decedent made the remark after the collision. At trial, he confirmed his second statement, and explained that he did not remember anything prior to the crash.

Erdman had filed a civil suit for injuries he sustained in the accident. The substance of defendant's argument goes to whether decedent suffered a heart attack; and if he did, whether it occurred before or after the accident. If decedent did have a heart attack, that not only bears upon the cause of decedent's death, but also affects Erdman's civil complaint; if decedent caused the accident, in part, because of a heart attack, that would affect whether he was negligent. See Timothy E. Travers, Annotation, Liability for Automobile Accident Allegedly Caused by Driver's Blackout, Sudden Unconsciousness, or the Like, 93 A.L.R.3d 326 (1979). Nevertheless, under the facts here, we do not find the trial judge abused his discretion by precluding inquiry into the civil suit. Defendant offered no medical evidence from which a jury could infer that decedent suffered a heart attack on the day of the accident. Just the opposite. The only medical evidence was the autopsy, which found that he did not suffer a heart attack on that day. On this record, for the jury to conclude that decedent had a heart attack that contributed to the accident would be mere speculation.

2.

Next, defendant claims he should have been permitted to challenge the State's expert witness about his fees. That issue arose on cross-examination of Dr. Pandina, when defendant questioned the doctor as to how much he charged for his reports, and how much he was being paid to testify. The court sustained the prosecutor's objections. We find that the failure to permit the witness to answer those questions was an abuse of discretion.

Whether experts in a criminal trial may be questioned as to the amount of fees they charge has been subject to some debate. Both this court and the New Jersey Supreme Court have expressed concerns about the extent to which the expert's fees bear upon the expert's credibility, and, more particularly, how the State may comment upon those fees in summation. See State v. Smith, 167 N.J. 158, 190-91 (2001) (Long, J., concurring) (court questions "entire notion of allowing jurors to consider the amount paid to an expert as bearing on credibility"; and finding that the amount of the expert's fees are not relevant in every case); State v. Negron, 355 N.J. Super. 556, 575, 577 (App. Div. 2002) (prosecutor's summation exceeded bounds of propriety by commenting that State's expert witness had no "ax to grind," nor was the witness "paid to testify").

Nonetheless, New Jersey has not adopted a blanket rule that an expert's fees are not relevant in a criminal trial. In fact, following the Court's decision in Smith, supra, an optional jury charge concerning compensation of experts was approved on October 1, 2001, which specifically provides that the charge may be given "where appropriate." Model Jury Charge (Criminal), "Optional Charge Concerning Compensation of Experts," (2001). Given Dr. Pandina's testimony in this case about defendant's impairment at the time of the accident, his fees may have had a bearing on how the jury measured his credibility. Therefore, the question was not irrelevant and immaterial as the trial judge ruled. Thus, if the issue arises on remand, the trial judge should balance that relevance with the limitations on the admission of that evidence expressed in both Smith and Negron.

3.

Defendant claims the trial judge erred by limiting the cross-examination of Officer O'Connor, the State's reconstruction expert, about information contained in a report prepared by Officer Appello, who did not testify at trial. We find no error. Officer Appello's report was hearsay, and while an expert may testify to hearsay evidence, that testimony is only admissible if the expert relied on the facts or data in the hearsay document upon which to base an opinion. State v. Pennington, 119 N.J. 547, 583 (1990), overruled on other grounds, State v. Brunson, 132 N.J. 377 (1993); State v. Spencer, 319 N.J. Super. 284, 299-300 (App. Div. 1999); N.J.R.E. 703.

The document with which defense counsel sought to cross-examine O'Connor was hearsay. As a result, the judge did not permit the jury to hear those portions of the report upon which O'Connor did not rely. Nevertheless, defense counsel was, in fact, given an opportunity to cross-examine O'Connor as to the portions of Appello's report upon which O'Connor did rely. Defendant's arguments that the trial court erred as to this issue are consequently without merit.

4.

Defendant claims the trial judge erred by allowing officers Reitemeyer and Hine to testify that defendant was under the influence of drugs. Neither was qualified as a drug recognition expert. Reitemeyer testified that in his opinion defendant was impaired by, or under the influence of, drugs or alcohol; but, he clarified on cross-examination that he was not offering an opinion that defendant was impaired by drugs. Hine testified that he believed defendant was driving under the influence of "alcohol and/or drugs"; again, on cross-examination he indicated that there was no evidence that defendant was under the influence of drugs.

While an officer not qualified as an expert is prohibited from testifying that an individual is under the influence of drugs, State v. Tamburro, 68 N.J. 414, 421 (1975), Reitemeyer and Hine clarified on cross-examination that they were not offering opinions that defendant was impaired by drugs. Thus, we find no abuse of discretion by the trial court in permitting the testimony. Nevertheless, on remand, should the officers testify at the new trial, each should be instructed before they testify not to render an opinion that defendant was under the influence of drugs.

5.

Defendant claims the trial court erred by precluding his cross-examination of Hine concerning the officer's training in the administration of field sobriety tests. While Reitemeyer directly administered the test, Hine was present and rendered an opinion, in part based on those test results, that defendant was under the influence of alcohol. Hine's training in the administration of those tests was therefore relevant. Hence, on retrial, should Hine testify that defendant was under the influence of alcohol, cross-examination about his qualifications as to the administration of field sobriety tests is permissible.

VII. DEFENDANT CLAIMS THE TRIAL COURT WAS NOT FAIR AND IMPARTIAL

Defendant raises several claims regarding the fairness of the trial based upon the actions of the trial judge. While, because we are reversing the verdict and remanding the case for a new trial we need not address each individual allegation, we are convinced by our review of the record that a number of the judge's statements to defense counsel, and his questions of the State's witnesses, could have been perceived by defendant as a bias towards him. Accordingly, while we do not find that any of the actions taken by the trial judge warranted, in themselves, reversal of defendant's conviction, on retrial, another judge should be assigned to try the case.

VIII. JURY INSTRUCTION

Defendant argues that the trial court erred in refusing to instruct the jury on the law of negligence and in improperly defining recklessness. Based upon our review of the judge's charge in its entirety, we find the charge was confusing and misleading to the jury and, consequently, requires a new trial.

The trial judge charged the jury with language from the vehicular homicide and assault by auto model jury charges. Both charges contain the element of "recklessness." See Model Jury Charge (Criminal), "Vehicular Homicide," (2004); Model Jury Charge (Criminal), "Assault by Auto," (2004). In his discussion of the required element of recklessness, the judge supplemented the language contained in the model jury charges. During its deliberations, the jury requested a definition of reckless. In response, the judge repeated his earlier instructions.

In reviewing allegations of error in the jury charge, an appellate court must determine whether the charge, considered as a whole, adequately conveyed the law and was unlikely to confuse or mislead the jury, even if part of the charge, standing alone, might be incorrect. Fischer v. Canario, 143 N.J. 235, 254 (1996); State v. Wilbely, 63 N.J. 420, 422 (1973). "The charge must provide a 'comprehensible explanation of the questions that the jury must determine, including the law of the case applicable to the facts that the jury may find.'" State v. Concepcion, 111 N.J. 373, 379 (1988) (quoting State v. Green, 86 N.J. 281, 287-88 (1981)). The question is whether the charge as a whole adequately "guided the jury in performing the critical task of determining defendant's guilt or innocence." Id. at 381.

The most serious charge against defendant was vehicular homicide. That offense is defined: "criminal homicide constitutes vehicular homicide when it is caused by driving a vehicle or vessel recklessly." N.J.S.A. 2C:11-5. A finding that a defendant was driving while intoxicated in violation of N.J.S.A. 39:4-50 "shall give rise to an inference that the defendant was driving recklessly." Ibid. Recklessness involves the conscious disregard of a known risk.

A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor's situation.

[N.J.S.A. 2C:2-2b(3).]

That definition of reckless contrasts with the definition of negligence in the criminal code. A person acts negligently,

with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that the actor's failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor's situation.

[N.J.S.A. 2C:2-2b(4).]

In a vehicular homicide case, it is recklessness, not negligence, that is the prescribed culpability requirement. State v. Stanton, 176 N.J. 75, 84 (2003), cert. denied, 540 U.S. 903, 124 S. Ct. 259, 157 L. Ed. 2d 187 (2003). The Stanton court noted:

Intoxication in combination with other evidence or standing alone may satisfy the recklessness element. In other words, a defendant's sobriety or insobriety is only one of several circumstances a jury is permitted to consider when deciding whether the element of recklessness, as defined in N.J.S.A. 2C:2-2b(3), has been established beyond a reasonable doubt. Some of the other circumstances, other than intoxication, that are considered in relation to recklessness regardless of whether or not the operator was intoxicated are excessive speed, weather and lighting conditions, and known substantial safety defects in the motor vehicle or vessel.

[Id. at 84-85 (internal quotations and citations omitted).]

Unless the jury is properly charged on the definition of "recklessly," the charge will be insufficient to sustain a conviction. See Concepcion, supra, 111 N.J. at 379-81. Against this legal foundation, we examine the trial judge's instruction here.

First, the court instructed on recklessness as prescribed by the Model Jury Charge (Criminal), "Vehicular Homicide," (2004). The judge said:

[A] person acts recklessly when he consciously disregards a substantial and unjustifiable risk that death will result from his conduct.

The risk must be of such a nature and degree that, considering the nature and purpose of the defendant's conduct and the circumstances known to him, disregard of the risk involves a gross deviation from the standard of conduct that a reasonable person would observe in the defendant's situation.

In other words, in order for you to find that the defendant drove a vehicle recklessly, the State must prove beyond a reasonable doubt that the defendant was aware that he was operating a vehicle in such a manner or under such circumstances as to create a substantial and unjustifiable risk of death to another.

The State must also prove beyond a reasonable doubt that the defendant consciously disregarded this risk and that the disregard of the risk was a gross deviation from the way a reasonable person would have conducted himself in the situation.

. . . .

The mere fact that someone operates his vehicle while under the influence of alcohol and/or drugs does not in itself prove that he operated his vehicle recklessly. However you may consider the evidence that he allegedly committed motor vehicle offenses in deciding whether he was reckless.

But, that did not end the court's charge. The court, in explaining to the jurors that they were not required to be unanimous in their determination as to the means of recklessness, see Stanton, supra, 176 N.J. at 86, attempted to give the jury examples of what could constitute recklessness. The judge said:

In other words, if you all agree that the defendant was reckless as I've defined it for you, you do not have to agree as to how the defendant was reckless. For example, you may all agree that he was reckless, but some of you may find . . . the defendant was reckless because he was not paying attention, while others may find he made a turn improperly, while still others may find he was under the influence of drugs or alcohol or a combination of all of the above, or for whatever other reasons you determine. As long as you all agree that the defendant was reckless, that element of the charge has been satisfied.

As to the jury instruction for assault by auto, the judge told the jury: "I have previously define[d] recklessly for you. Remember, we just went over what the definition of recklessly was in the death by auto? Well that recklessly is the same recklessly in here."

During its deliberations, the jury requested a definition of reckless. The trial judge repeated his prior instruction on the element of recklessness, including both the language from the Model Jury Charge and the following examples:

For example, you may all agree he was reckless, but some of you may find the defendant was reckless because he was not paying attention, while others may find that he was reckless because he made a turn improperly, while others still may find that he was under the influence of drugs and/or alcohol, or a combination of all of the above, or for other reasons that he was reckless. So long as you all agree that the defendant was reckless, that element of the charge has been satisfied.

That's the definition of reckless.

Though we find no fault with the court's providing the Model Jury Charge as to the definition of recklessness, the examples the judge gave, specifically telling the jury that defendant may have been reckless "because he was not paying attention, . . . because he made a turn improperly," were examples of negligent, not reckless, conduct. These examples may very well have led the jury to conclude that if defendant caused the accident simply as a result of being inattentive, or making an improper turn, he could be found to be reckless. That would be an incorrect conclusion for the jury to draw. When N.J.S.A. 2C:11-5 was enacted, L. 1981, c. 312, effective December 3, 1981, the culpability standard was established to be "recklessly," and a negligent homicide provision was rejected by the New Jersey Criminal Law Revision Commission. Cannel, New Jersey Criminal Code Annotated, comment 1 on N.J.S.A. 2C:11-5 (Gann, 2005). Thus, a defendant may not be convicted of death by auto or assault, or for that matter, assault by auto, simply by acting negligently. Consequently here, the examples the judge provided to the jury as to what constituted recklessness not once, but twice had the clear potential to adversely affect the jury's deliberative function and the clear capacity to mislead the jury. Thus, a new trial is necessary.

Because this case needs to be tried again, we suggest that the better procedure to explain the culpability element of vehicular homicide may be found in the New Jersey Supreme Court's Concepcion decision. 111 N.J. 373. There, the Court observed:

Model jury charges are often helpful to trial courts performing this important function. However, it is not always enough simply to read the applicable provision of the Criminal Code, define the terminology, and set forth the elements of the crime. An instruction that is appropriate in one case may not be sufficient for another case. Ordinarily, the better practice is to mold the instruction in a manner that explains the law to the jury in the context of the material facts of the case. (citation omitted).

. . . .

Moreover, the jury's request for reinstruction suggests that some members of the jury did not understand sufficiently the concept of recklessness. Rather than repeating the abstract definition that left the jury uncertain in the first place, the trial court might have explained "recklessly" by comparing it with other mental states, such as purposely (N.J.S.A. 2C:2-2(b)(1)), knowingly (N.J.S.A. 2C:2-2(b)(2)), and negligently (N.J.S.A. 2C:2-2(b)(4)). The jury's understanding of these distinctions could have been enhanced if these mental states had been clarified by illustrative examples. On balance, we are persuaded that the charge in the context of the evidence in this case was not sufficient.

[Concepcion, supra, 111 N.J. at 379, 381.]

Should a new trial come to pass, the jury should be instructed accordingly.

IX. DRIVING WHILE INTOXICATED

Following the jury verdict, the trial judge found defendant guilty of driving under the influence. See State v. Stanton, supra, 176 N.J. at 85-86 (when defendant charged with vehicular homicide and driving while under the influence, jury hears indictable vehicular homicide evidence as well as evidence of lesser-included offenses; jury then determines indictable offense and judge presiding over jury trial decides driving while under the influence offense on proofs adduced during trial). The trial judge did not, however, make any factual findings. He said: "I've listened to the evidence, and I find that the State has met its burden of proof with regard to [N.J.S.A.] 39:4-50, driving while under the influence, beyond a reasonable doubt; and I find the defendant guilty of [N.J.S.A.] 39:4-50." The court failed to make the requisite findings to support a conviction. See R. 1:7-4(a). For that reason, and because of the evidential errors made during the trial, we vacate defendant's conviction for driving under the influence and remand for a new trial.

X. WEIGHT OF THE EVIDENCE

Although we have reversed defendant's convictions, we will address his argument that the trial proofs did not support a conviction for death by auto or assault by auto. His arguments are not persuasive. The testimony at trial, particularly that of the eyewitnesses to the accident and Officer O'Connor, presented a sufficient factual basis upon which the jury could have found defendant guilty of each charge beyond a reasonable doubt. Defendant's arguments to the contrary are without merit and require no further discussion. R. 2:11-3(e)(2).

XI. CONCLUSION

Defendant's sentencing arguments are moot in light of our decision to reverse his convictions.

 
Reversed and remanded for further proceedings consistent with this opinion.

Count five was dismissed pre-trial and is not subject to this appeal.

We remand to correct the judgment of conviction to reflect that the assault by auto convictions were for fourth-degree, not third-degree, offenses.

While defendant was convicted by the court, following the jury verdict, of driving while under the influence of alcohol, because of the evidentiary errors committed by the court, see sections III and VI, infra, and the judge's failure to make factual findings to support the conviction, see section IX, infra, we also reverse that conviction and remand for a new trial.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

The Miranda warnings form is not in the appendix. Officer Appello testified at the Miranda hearing that he read the form to defendant verbatim. The officer read the form into the record. He said, in part,

"You have a right to talk to a lawyer and advise him advise before we ask you any questions and to have him with you during questioning. You have this right to the advice and the presence of a lawyer even if you cannot afford one for hire. If you wish a lawyer and cannot pay for one, you may apply to the court and one will be appointed to you.

If you wish to answer questions now without a lawyer present, you have the right to stop answering questions at any time. You also have a right to stop answering questions at any time if you talk to a lawyer."

While we need not discuss the assault by auto convictions in detail, because those charges also require a finding of reckless conduct, see N.J.S.A. 2C:12-1c(1), those convictions are similarly set aside and require a new trial.

(continued)

(continued)

37

A-0671-04T2

October 21, 2005