State of new jersey v. KEVIN MCGRATH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4276-06T44276-06T4

State of new jersey,

Plaintiff-Respondent,

v.

KEVIN MCGRATH,

Defendant-Appellant.

 
 

Argued September 15, 2009 - Decided

Before Judges Carchman, Parrillo and Lihotz.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-11-2637.

Brian Plunkett, Assistant Deputy Public Defender, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Mr. Plunkett, of counsel and on the brief).

LeeAnn Cunningham, Assistant Prosecutor, argued the cause for respondent (Paula T. Dow, Essex County Prosecutor, attorney; Ms. Cunningham, of counsel and on the brief).

PER CURIAM

Defendant Kevin McGrath was charged under a four-count Essex County indictment. Following a jury trial, defendant was convicted on two counts of second-degree vehicular homicide, N.J.S.A. 2C:11-5, and acquitted on two counts of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a). The trial judge sentenced defendant to two consecutive seven and one-half year terms of imprisonment, subject to the eighty-five percent period of parole ineligibility mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

On appeal, defendant seeks reversal of his conviction, based upon the following challenges:

POINT I

the trial court's failure to charge the difference between recklessness and negligence deprived defendant of a fair trial. (Not raised below).

POINT II

the trial court's failure to charge the lesser-included offenses of reckless and careless driving deprived defendant of a fair trial. (Not raised below).

POINT III

The admission of even a single crime scene or autopsy photograph was improper since neither the cause nor the manner of death was in dispute. The introduction of eight horrific crime scene and five autopsy photographs together with repeated injury-by-injury descriptions deprived defendant of a fair trial. (Partially raised below).

POINT IV

The entrance into evidence of the victims' wedding and school pictures denied defendant a fair trial.

POINT V

the erroneous admission into evidence of a cut green straw and a "little vial" with testimony concerning the dna testing of the straw together with the testimony regarding the alleged untruthfulness of defendant's account of his activities in Newark on the morning of the collision inappropriately raised the inference of drug use by the defendant creating extreme prejudice depriving him of a fair trial. (Not raised below).

POINT VI

the prosecutor's persistent reliance upon inflammatory photos and other irrelevant but highly prejudicial testimony and evidence designed to cast a shadow of drug use over defendant together with the use of victim impact evidence constituted misconduct, requiring a new trial. (Not raised below).

We have considered these arguments in light of the record and applicable legal standards. We affirm.

We summarize the evidence introduced by the State at trial relevant to the issues raised on appeal. Late in the morning on a clear, sunny Halloween day, defendant was driving a pick-up truck at fifty miles per hour on Elizabeth Avenue, as he neared its intersection with Clifton Street, Newark. The speed limit on Elizabeth Avenue is twenty-five miles per hour. Defendant fell asleep at the wheel, and his vehicle "swerved off to the right." The truck struck and killed two pedestrians, then the truck collided into the rear of a minivan, pushing it forward one car-length into another parked car. The mangled, disfigured bodies of the victims, sisters, Vanessa Farias Pereira and Marissa Farias, were found pinned between the pick-up and the minivan. Witnesses described the numerous injuries inflicted to each victim, as "[h]orrific." Vanessa died instantly. Marissa was taken to the hospital but died shortly thereafter.

At the scene, defendant told police he did not know what happened. Later, in a custodial statement, given following recitation of his Miranda rights, defendant disclosed he had not slept in a day and a half and was taking albuterol, an asthma medication that can cause drowsiness. Defendant also admitted he had fallen asleep "a couple of times," as he drove to Newark from Old Bridge. He stated he "hit the divider" on Routes 1 and 9, but did not stop to rest. He also confessed, "[w]hen I was coherent, I had glanced at the speed monitor" while driving on Elizabeth Street and noted the vehicle speed was "about fifty miles per hour." Defendant did not decelerate because he thought the speed limit was fifty miles per hour. Finally, he stated, the impact "woke him up."

At trial, the State offered into evidence four pictures of the victims prior to the accident, along with several crime scene and autopsy photographs. Defendant objected to the admission of the victims' pre-accident photographs, arguing they were not probative of any disputed fact. Without explanation, the trial judge admitted a 2003 picture of Vanessa on her wedding day and a school photograph of Marissa at age twelve. Defendant also objected to the admission of the autopsy and crime scene photographs. Counsel argued the cause of death was not disputed, and the photographs were "very inflammatory" and "more prejudicial than probative." The trial judge admitted five autopsy photographs and eight pictures of the crime scene, concluding they were "probative [of] the injuries and the extent of the impact [that] caused the death[s,]" which would be corroborated by the medical examiner.

Samuel Robinson testified he saw defendant exit his pick-up and start walking away. Bystanders then prevented him from leaving the scene, so defendant sat on the curb. As the police arrived, Robinson watched defendant discard "something down a sewer grate." In his custodial statement, defendant admitted he discarded a plastic green straw. The straw was retrieved and subjected to forensic DNA testing. In that regard, Detective Howard Johnson offered this testimony:

Q: Detective, that green straw that you took a picture of, what was done with it after it was placed into evidence by Detective Muhammad?

A: Eventually, I had it removed from evidence. It was packaged. It was brought down to the New Jersey State Police . . . Laboratory . . . . And they did an analysis of the straw at my request for two things.

First thing we wanted . . . to find out whether or not the straw actually came from the defendant. Second thing was, I wanted to find out, since it looked like a straw that was --

The Court: Sustained -- no -- next question please.

. . . .

Q: Detective, I'm gonna [sic] show you what has been marked as S-13. Can you tell the members of the jury what is contained in that bag?

A: Yes. There is the green straw and it's encased in some sort of glassine package. There's also a little vial.

Q: When you recovered the straw, was that glassine package recovered also?

A: No, it wasn't.

Q: So it was just the straw that was recovered?

A: That's correct.

Elliot Clark, the State's forensic science expert, established defendant's DNA was found on the straw. No objection was made when the State moved the straw, including the "vial" and "glassine package," remnants from the forensic testing kit, into evidence. Earlier, defendant had secured a ruling limiting the evidence to prove defendant's DNA was on the straw, and otherwise, barring the State from suggesting the straw was tested for possible narcotics or was "in [defendant's] nose or in his mouth."

The medical examiner, Dr. Junaid R. Shaikh, explained both sisters died from multiple blunt traumatic injuries, which included leg fractures, brain injuries, spinal cord fractures, internal hemorrhaging, and severe lacerations and contusions, both exteriorly and to internal organs. Dr. Shaikh opined the victims' injuries were consistent with a pedestrian being hit by a pick-up truck that was traveling fifty miles per hour, then pinned against another vehicle.

The State also presented an accident reconstruction expert, who testified defendant's vehicle was in perfect running condition at the time of the accident. Defendant elected not to testify or present witnesses on his behalf.

With counsel's consent, the court charged the jury on aggravated manslaughter and vehicular homicide, following the Model Jury Charges. No instruction was given or requested on lesser-included offenses. During summation, defendant argued his conduct was negligent, not reckless.

During deliberations, the jury submitted several inquiries to the court. The first was as follows: "One, to review the definition of recklessly; and two, in his statement, when did [defendant] say that he hit the guardrail on Route 1 & 9?" In response, with counsel's consent, the judge explained defendant's statement did not state when he had hit the median. The judge then repeated the definition of "recklessly" set forth in N.J.S.A. 2C:2-2(b)(3), and provided the context of the term, as used in the charges of aggravated manslaughter and vehicular homicide, noting that in the latter offense, the statute provides: "[p]roof that the defendant fell asleep while driving or was driving after having been without sleep for a period in excess of 24 consecutive hours may give rise to an inference that the defendant was driving recklessly." N.J.S.A. 2C:11-5(a).

The jury returned a verdict of not guilty on the two counts of aggravated manslaughter but guilty on the two counts of vehicular homicide. Following sentencing, defendant appealed.

On appeal, defendant asserts for the first time that the judge erred in charging the jury because he omitted an explanation of the difference between reckless and negligent conduct. Defendant claims the court's instruction "fail[ed] to charge the alternate legal conclusion - the defense theory of the case - negligence, [and] deprived [defendant] of a fair trial." Moreover, relying on State v. Concepcion, 111 N.J. 373 (1988), defendant suggests the jury's inquiry revealed a lack of understanding of the charge, therefore, the court was obligated to explain the term "recklessly" by comparing it to other mental states, such as "negligently," rather than merely repeating the definition. Id. at 381. In a related argument, defendant maintains the lesser-included offenses of reckless and careless driving, which were not charged, should have been submitted to the jury.

In considering defendant's challenges, we must read and review the jury charge in its entirety. State v. Torres, 183 N.J. 554, 564 (2005); State v. Wilbely, 63 N.J. 420, 422 (1973). Additionally, since there was no objection to the jury instructions as given, we review defendant's challenges under the plain error standard. R. 2:10-2. To find plain error in regard to the court's jury instructions, we must discern a "legal impropriety . . . prejudicially affecting the substantial rights of the defendant," which is "sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970).

Overall, the instructions given to the jury made clear the State had the burden to prove all the elements of each offense beyond a reasonable doubt, and defendant was not obligated to prove his innocence or offer any proof relating to his innocence. An element of each charged offense was recklessness. The unrefuted evidence, from which the jury could conclude beyond a reasonable doubt that defendant consciously disregarded "a substantial and unjustified risk," which amounted to a "gross deviation from the standard of conduct that a reasonable person would observe," N.J.S.A. 2C:2-2(b)(3), necessary for a guilty verdict included defendant's admissions he: fell asleep at the wheel while traveling at an excessive speed - which was twice the lawfully posted limit; had not slept in thirty-six hours; was aware of his drowsiness as he had already fallen asleep "a couple of times" and scraped the highway median; and ingested medication known to make him drowsy. Based on the charge given, if the jury concluded defendant was not reckless, it would simply acquit him.

We disagree with defendant's notion the evidence portrayed divergent theories of culpability warranting additional jury instructions. Our review discerns no evidence supporting defendant acted negligently, as defined in N.J.S.A. 2C:2-2(b)(4). Tellingly, defendant's arguments do not demonstrate how the evidence could possibly be viewed to show he was unaware of the risk that under the known circumstances, he would fall asleep while driving and cause injury to persons or property; he merely concludes that it does. The contention that this was only "a horrible car accident" was rejected by the jury, based upon the evidence.

We also disagree that the jury's request to "review the definition of recklessly" necessitated a charge explaining alternative mental states. Defendant's reliance on Concepcion is misplaced.

In Concepcion, supra, the defendant was convicted of reckless manslaughter. 111 N.J. at 374. The defendant left a loaded handgun on his living room bookshelf. Id. at 375. That evening, the defendant and a group of people were in his apartment. Ibid. The victim picked up the loaded weapon, was shot and killed. Ibid. The defendant testified the gun accidentally discharged when he tried to take it from the victim. Ibid. During deliberations, "the jury asked the court for clarification of the definition of recklessness," and the "court limited its recharge to a repetition of the statutory definition of manslaughter." Id. at 378.

In reversing the reckless manslaughter conviction, the Supreme Court determined the trial judge inadequately guided the jury because his instruction "was too selective in mentioning only defendant's conduct in leaving the loaded gun on the bookshelf[,]" which ignored evidence presented by defendant that the shooting was accidental. Id. at 380. Moreover, the question suggested "some members of the jury did not understand sufficiently the concept of recklessness." Id. at 381. Therefore, the trial court should not have merely repeated "the abstract definition that left the jury uncertain in the first place." Ibid.

Here, the jury instructions did not selectively recite the facts, omitting those supporting an alternative version of events advocated by defendant. The facts presented by the State were unchallenged. The jury's request asked the court to "review the definition of recklessly," suggesting it desired to hear the instruction again. Once the charge was repeated, the jury submitted no follow-up inquiries. However, the jury did ask other questions, including a request for the court to re-read defendant's custodial statement and provide a clarification of conduct "under circumstances manifesting extreme indifference to the value of human life." See N.J.S.A. 2C:11-4(a).

It is obvious the jury understood and followed the court's instructions, because it differentiated between aggravated manslaughter and death by auto, acquitting defendant of the first-degree offense. Compare State v. Pigueiras, 344 N.J. Super. 297, 309-10 (App. Div. 2001)(noting the jury charge properly differentiated assault by auto and aggravated assault), certif. denied, 171 N.J. 337 (2002); with State v. Jiminez, 257 N.J. Super. 567, 577-78, 583 (App. Div. 1992)(concluding the jury charge inadequately differentiated elements of reckless manslaughter and death by auto). We discern no error warranting our intervention.

Turning to a related argument, although "[u]nder . . . N.J.S.A. 2C:1-8d, the motor vehicle offenses of reckless and careless driving [N.J.S.A. 39:4-96 and -97, respectively] would qualify as lesser offenses . . . included within the Code crime of death by auto," State v. Muniz, 118 N.J. 319, 325 (1990); see also State v. Dively, 92 N.J. 573, 583 (1983)(holding that for purposes of double jeopardy, reckless driving was a lesser-included offense of death by auto), a trial court is obligated to instruct the jury as to any lesser-included offenses, only "where the facts 'clearly indicate' a rational basis on which to support a conviction of a lesser-included offense." State v. Nutter, 258 N.J. Super. 41, 58 (App. Div. 1992) (quoting State v. Choice, 98 N.J. 295, 299 (1985) (quoting State v. Powell, 84 N.J. 305, 318 (1980))). This does not mean the court is obligated to instruct on any lesser-included offenses.

Carefully examining the facts, the jury concluded defendant was driving his truck recklessly, causing the death of two people. We perceive no rational basis necessitating the jury's consideration of lesser-included motor vehicle offenses. Even if there were such a basis, the court is not required to elaborate on the lesser-included motor vehicle offenses in its jury charge. It must only bring them "to the attention of the jury." Muniz, supra, 118 N.J. at 332.

Here, the trial judge did just that instructing the jury, as follows:

The State alleges that the defendant's conduct involved a violation of the motor vehicle laws of this [S]tate. Specifically, it is alleged that defendant was driving 50 miles an hour on a street where the speed limit was 25 miles per hour. Whether he's guilty or not of those offenses, or that offense, will be determined by an appropriate court. In other words, it is not your job to decide whether he is guilty or not guilty of any motor vehicle offenses.

Thus, "where the evidence supports a lesser-included motor vehicle violation, the jury will know with such an instruction that its disposition of the offenses submitted to it will not necessarily be the ultimate determination of the defendant's guilt or innocence relating to the conduct that has given rise to the prosecution." Muniz, supra, 118 N.J. at 333.

Defendant received "an adequate instruction of the law." State v. Pleasant, 313 N.J. Super. 325, 333 (App. Div. 1998), aff'd, 158 N.J. 149 (1999). There was no error.

The remaining challenges are directed to the trial court's evidentiary rulings. Specifically, defendant challenges the admission of the photographs and the green plastic straw. We agree the trial court erred in a portion of these rulings. However, even if some evidence was erroneously admitted, based upon the overwhelming, uncontroverted evidence of defendant's guilt presented to the jury, the harm was inconsequential.

At trial, defendant objected to the admission of the victims' pre-accident photographs, the five autopsy photographs of Marissa, and S-5B, a crime scene photograph that included Vanessa's contorted body trapped among the rubble of the vehicles. On appeal, defendant argues the admission of the autopsy, crime scene, and victim photographs was prejudicial and denied him a fair trial. The State contends the photographs were introduced to show "circumstances manifesting extreme indifference to human life," necessary for a conviction of aggravated manslaughter.

Generally, trial courts faced with the question of the admissibility of crime scene and other photographs must balance the relevance of the photographic evidence against the likelihood of jury prejudice. See N.J.R.E. 403. The admissibility of such evidence rests within the sound discretion of the trial court, State v. McDougald, 120 N.J. 523, 582 (1990) (citing State v. Thompson, 59 N.J. 396, 420 (1971)), and we reverse only when we discern a palpable abuse of that discretion. Ibid. (citing State v. Conklin, 54 N.J. 540, 545 (1969)). "Such abuse exists only where the 'logical relevance will unquestionably be overwhelmed by the inherently prejudicial nature of the particular picture,'" id. at 420-21 (quoting State v. Smith, 32 N.J. 501, 525 (1960), cert. denied, 364 U.S. 936, 81 S. Ct. 383, 5 L. Ed. 2d 367 (1961)), and "have a probable capacity to divert the minds of the jurors from a reasonable and fair evaluation of the basic issue of guilt or innocence." State v. Johnson, 120 N.J. 263, 297 (1990) (quoting Thompson, supra, 59 N.J. at 421).

The trial judge offered no explanation of the probative value of the wedding and school pictures. This was error. In reviewing the autopsy and crime scene photographs of objects other than the collided vehicles, we cannot determine their relevance given the fact the medical examiner and police investigators gave detailed testimony of the victims' injuries -- facts defendant never contested. To argue the pictures were corroborative of the medical examiner's testimony was insufficient to outweigh their prejudicial potentiality. Thus, the failure of the trial court to fully balance the relevance of proffered evidence against the likelihood of jury prejudice was also error.

Nevertheless, in the context of the totality of the evidence before the jury, we are satisfied that the photographs' admission did not have the capacity to cause an unjust result. The State's reason for using the photographs was to support the conviction of aggravated manslaughter. Even with the photographs, the jury found the evidence lacking and acquitted defendant on these charges. Also, in light of defendant's admissions and the witnesses' testimony, the jury verdicts were overwhelmingly supported by the record.

As to the claimed error in admitting the green straw, accompanied by a vial and glassine packaging, we reject defendant's argument that the evidence gave rise to an inference of drug paraphernalia. R. 2:11-3(e)(2). The record supports no such inference.

Finally, despite the irregularities cited, we do not determine "clearly and unmistakably improper" prosecutorial conduct warranting reversal. State v. Timmendequas, 161 N.J. 515, 575 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). Any remaining arguments, not specifically addressed above, are deemed to be without sufficient merit

to warrant discussion in this opinion. R. 2:11-3(e)(2).

Timmendequas, supra, 161 N.J. at 575. Our review of the record satisfies us that defendant's trial was a fair one.

 
Affirmed.

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

The crime scene photographs contained in the record were identified as S-5A to S-5D, S-5F, S-5J to S-5L. Two of these photographs include Vanessa's body. The autopsy photographs, marked as S-10A to S-10E, are of Marissa.

Clark's testimony regarding the vial and glassine package was: "This is a vial of something and it looks like the straw that was tested in this case for DNA analysis."

N.J.S.A. 2C:11-4(a) states in pertinent part: "Criminal homicide constitutes aggravated manslaughter when the actor recklessly causes death under circumstances manifesting extreme indifference to human life."

N.J.S.A. 2C:11-5 defines death by auto as: "Criminal homicide constitutes vehicular homicide when it is caused by driving a vehicle or vessel recklessly." Additionally, "recklessness may be inferred" by proof "the defendant fell asleep while driving or was driving after having been without sleep for a period in excess of 24 consecutive hours."

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

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.

The record does not state defendant was charged with motor vehicle offenses.

(continued)

(continued)

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A-4276-06T4

October 9, 2009