STATE OF NEW JERSEY v. WILLIAM K. BREINER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WILLIAM K. BREINER,

Defendant-Appellant.

March 10, 2016

Argued December 2, 2015 Decided

Before Judges Alvarez, Haas, and Manahan.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 11-06-1213.

Joshua D. Sanders, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Samuel Feder, Assistant Deputy Public Defender, of counsel and on the brief).

Ian D. Brater, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney; Mr. Brater, of counsel and on the brief).

PER CURIAM

A Monmouth County jury convicted defendant William Breiner of second-degree aggravated assault, N.J.S.A. 2C:12-1(b), and third-degree assault by auto while driving while intoxicated, N.J.S.A. 39:4-50 and 2C:12-1(c)(2). After merging the two convictions, on September 27, 2013, the judge imposed a sevenyear term of imprisonment subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.1 We affirm.

At trial, the State's witnesses were Ioana Enescu, the driver behind defendant's vehicle when the accident that resulted in the charges occurred; David Brady, the driver of the vehicle which had the right of way; Dr. John Brick, Ph.D., who qualified as an expert in the field of alcohol pharmacology; and the patrolmen called to the scene of the traffic accident. We glean the following from the trial record.

On January 18, 2011, at approximately 11:00 p.m., defendant, in a Ford F-150 pickup truck, was on Route 79 south. There was little traffic on the road. Enescu noticed defendant's manner of operation because he repeatedly and abruptly changed speed for no obvious reason. As the two cars approached a red light, Enescu began to sound her horn because she feared that defendant "wasn't slowing down." She saw defendant drive through the red light, striking the driver's side of Brady's car in the middle of the intersection. Brady suffered life-threatening injuries that required months of treatment in a hospital and a rehabilitation facility. Because of significant trauma to the brain, Brady continues to suffer from a host of symptoms, ranging from chronic headaches to short-term memory loss and weakness in the left side of his body.

After arriving at the scene, Marlboro Police Department Patrolman William Pedone approached the driver's side of defendant's truck and asked him if he needed medical attention. Defendant declined and said he was "okay." He appeared "disheveled[,]" his speech was slurred, and he smelled strongly of alcohol. His face was flushed, his eyes bloodshot and watery, and he seemed oblivious to the fact that he had severely injured the other driver.

Eventually, Pedone walked over to the passenger's side of the truck and opened the door. Between the seat and the door was an opened twelve-ounce bottle of vodka with about four ounces missing.

When Sergeant Bryan O'Hare asked defendant to step out of the truck, defendant almost fell; O'Hare had to catch him. He too detected a strong odor of alcohol about defendant's person.

O'Hare and Pedone, while holding onto defendant's arms, walked him to their patrol car. Defendant denied drinking that night.

Pedone unsuccessfully attempted to administer field sobriety tests, which were stopped because defendant was unable to maintain his balance. Defendant was arrested, and at the station, he was administered an Alcotest at around 12:20 a.m. His reading was .24 blood alcohol content (BAC).

Dr. Brick, who had reviewed the discovery and the Alcotest documentation, opined that defendant had consumed between nine and eleven alcoholic drinks, fourteen to seventeen ounces of 80-proof liquor, prior to the accident. He estimated that defendant's BAC was between .14 and .23 percent at the time of the crash.

Dr. Brick also opined, given defendant's demeanor at the scene, that he was significantly impaired when the accident occurred. His calculations were based on the assumption that defendant began to drink at least an hour beforehand. On cross-examination, he testified that if defendant began to drink half an hour before the accident, his BAC would have been between .06 and .10. If he began to drink twenty minutes before driving, his BAC would have been below .08. Dr. Brick also agreed that in light of the presence of the vodka bottle in the truck, defendant may have been consuming alcohol until the moment of the collision.

The defense theory, supported by this testimony, was that although the State could readily prove the offense of assault by auto, it could not prove aggravated assault. During summation, counsel told the jury that in order to convict defendant of aggravated assault, the State was required to prove more than mere recklessness. Counsel argued to the jury that defendant did not act recklessly under "circumstances manifesting extreme indifference to the value of human life" as required by the aggravated assault statute. As he put it, the State needed to "prove beyond a reasonable doubt that it was probable as opposed to merely possible that someone would be seriously injured, and that's more than recklessness, more than serious bodily injury, more than intoxication."

The prosecutor's summation also focused on the difference between recklessness and recklessness under circumstances manifesting extreme indifference to the value of human life, between assault by auto and aggravated assault. The prosecutor contended that defendant "consciously disregarded a risk, that his conduct was a gross deviation from how reasonable people would act, and that his conduct led to the probability of serious bodily injury." In discussing the means by which the State had proved beyond a reasonable doubt that defendant's conduct led to the probability of serious bodily injury, the prosecutor said

Use your common sense to think about what's the more logical, probable, reasonable time period over which he was drinking, 20 minutes before the crash which gives him oh, so conveniently less than .08? 20 minutes where he pounded ten drinks or however many drinks that would be? Remember, he still has to go up to .24. That's not questioned. Come on, that's not logical. That's outrageous, actually.

. . . .

. . . [A] little too convenient to have a .06. . . . That's not reasonable.

The prosecutor mistakenly referred to circumstances manifesting an extreme indifference to human life as a state of mind or "inside someone's head." In addition, the prosecutor said that Pedone and O'Hare, who had made hundreds of DWI arrests and "ha[d] come in contact with thousands of drunks in their career," testified that defendant's behavior caused them to conclude he was "visibly highly intoxicated." He mentioned the officers said he "stunk like booze[,]" and "stunk like alcohol[.]" In conclusion, the prosecutor argued

[Y]ou've now heard all of the testimony. You've seen all of the evidence. You now have all of the information you need to convict him. So I ask you now to go in the jury room and find him guilty of those crimes not because I want you to and not because you feel bad for [Brady], do it because that's what the proofs and the evidence show that he is guilty of.

You now have the opportunity to force upon him a responsibility. You do have the opportunity to hold him accountable. You have the opportunity to hold him accountable and responsible for what he did that night, for his bad choices and for the serious brain injury he caused to [Brady]. I now ask you to return the verdict that the facts dictate and justice demands, guilty.

The judge added some language, without objection from counsel, to the aggravated assault charge. We later quote the specific language in the relevant section of this opinion.

In sentencing, the trial judge reviewed defendant's extensive prior history of alcoholism, acknowledging his treatment for the condition after the accident. Defendant had no prior criminal history, but did have one prior DWI conviction, and a second which had been overturned on appeal. The court found aggravating factor three, the risk of re-offense, N.J.S.A. 2C:44-1(a)(3), based on defendant's longstanding history of alcohol abuse and admission to drinking a liter of vodka daily. During his allocution, defendant admitted to having been arrested several times for DWI. The court also found aggravating factor nine, the need for deterrence, N.J.S.A. 2C:44-1(a)(9), stating that the need was specific to defendant as his prior DWI incidents had not deterred him from driving while intoxicated. In mitigation, the court found factor seven, defendant's lack of a prior criminal history, N.J.S.A. 2C:441(b)(7), as well as six, that defendant intended to compensate the victim, N.J.S.A. 2C:44-1(b)(6), although he placed scant weight on that factor. The court also found factor ten, that there was a likelihood that defendant would respond affirmatively to probationary treatment, N.J.S.A. 2C:441(b)(10), although the aggravated assault conviction mandated a term of imprisonment. He acknowledged that defendant had detoxed in 2003 and 2006, after the accident completed a year-long residential program from 2011 to 2012, and had at least one relapse after discharge from the facility but prior to sentence.

On appeal, defendant raises the following issues

POINT I

THE JURY CHARGE ON AGGRAVATED ASSAULT CONFLATED RECKLESSNESS AND CIRCUMSTANCES MANIFESTING EXTREME INDIFFERENCE TO THE VALUE OF HUMAN LIFE, AND IT WAS THEREFORE CLEARLY CAPABLE OF PRODUCING AN UNJUST RESULT. (Not Raised Below).

A. Mr. Breiner's Defense and the Facts of the Case.

B. The Distinction Between Recklessness and Circumstances Manifesting Extreme Indifference to the Value of Human Life.

C. The Trial Court's Jury Charge.

D. The Law Regarding Jury Charges as Applied to this Case.

POINT II

THE DEFINITION OF THE PHRASE "UNDER CIRCUMSTANCES MANIFESTING EXTREME INDIFFERENCE TO HUMAN LIFE" SHOULD NOT BE INTERPRETED TO CHANGE FROM CRIMINAL STATUTE TO CRIMINAL STATUTE; RATHER, THE DEFINITION OF THAT PHRASE AS FIRST INTERPRETED IN STATE V. CURTIS,[2] AND APPROVED THEREAFTER BY THE NEW JERSEY SUPREME COURT, SHOULD APPLY WHENEVER IT IS USED IN THE CODE. CONSEQUENTLY, THE JURY INSTRUCTION ON SECOND-DEGREE AGGRAVATED ASSAULT WAS INCORRECT. (Not Raised Below).

POINT III

MULTIPLE INSTANCES OF PROSECUTORIAL MISCONDUCT IN SUMMATION DENIED DEFENDANT HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL. (Not Raised Below).

A. Denigration Of The Defense.

B. Name-Calling.

C. Call to Arms.

POINT IV

IN THE ALTERNATIVE, MR. BREINER'S CASE SHOULD BE REMANDED FOR RESENTENCING BECAUSE THE TRIAL COURT ERRED IN ASSIGNING SIGNIFICANT WEIGHT TO AGGRAVATING FACTOR 3.

I.

As to aggravated assault, the judge gave the following instruction

The second element the State must prove beyond a reasonable doubt is that [defendant] acted recklessly under circumstances manifesting extreme indifference to the value of human life.

A person acts recklessly with respect to the result of his conduct if he consciously disregards a substantial and unjustifiable risk that the result will occur 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 circumstance known to the actor its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor's situation.

One is said to act recklessly if one acts with recklessness, with scorn for the consequences, heedlessly, foolheartedly. The nature of the recklessness with which [defendant] acted toward the victim of the assault is a question of fact for you the jury to decide.

. . . .

Recklessness is a condition of the mind that cannot be seen and that can often be determined only from inference from conduct, words, or acts. It is not necessary for the State to produce a witness to testify that [defendant] stated that he had acted with a particular state of mind.

It is within your power to find that proof of recklessness has been furnished beyond a reasonable doubt by inferences that may arise from the nature of the acts and circumstances surrounding the conduct in question.

In determining whether the State has proven beyond a reasonable doubt that [defendant] acted recklessly, [defendant's] awareness of a risk due to self-induced intoxication is immaterial; in other words, you may find that the State has proven recklessness beyond a reasonable doubt even though [defendant] was unaware of a risk of which he would have been aware were he not intoxicated.

The phrase under circumstances manifesting extreme indifference to the value of human life does not focus on the state of mind of the actor but rather on the circumstances under which you find that he acted.

If in light of all the evidence you find that the conduct of [defendant] resulted in a probability as opposed to a mere possibility of serious bodily injury, then you may find that he acted under circumstances manifesting extreme indifference to the value of human life.

In determining whether [defendant] acted recklessly under the circumstances manifesting extreme indifference to the value of human life, you may consider the nature of the acts themselves and the circumstances under which they occurred.

When reviewing jury instructions claimed to be flawed, we consider the charge as a whole to weigh whether the "jury was misinformed as to the controlling law" or whether the instruction was overall "ambiguous or misleading." State v. R.B., 183 N.J. 308, 324 (2005) (quoting State v. Hipplewith, 33 N.J. 300, 317 (1960)). The failure to object raises the presumption that the instructions were adequate. State v. Morais, 359 N.J. Super 123, 134-35 (App. Div.) (citing State v. Macon, 57 N.J. 325, 333 (1971), certif. denied, 177 N.J. 572 (2003)).

The Supreme Court commented in R.B., when a claim of error is made on appeal as to an unobjected-to jury charge, it

will not be considered unless it qualifies as plain error, that is, legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and 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.

[R.B., supra, 183 N.J. at 321-22 (quoting 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)).]

In this case, as in R.B., the burden defendant must meet "is considerable and, ultimately, insurmountable." Id. at 322.

In support of his position, defendant cites to State v. Bileck, 308 N.J. Super. 1 (App. Div. 1998). In that case, we held the use of two self-defense-based model jury charges was confusing because both carried different thresholds for justified force, and only one included a proportionality requirement. Id. at 12.

In this case, however, the additional language clarified that although recklessness is a condition of the mind, it can be determined from surrounding circumstances. The modified charge also clarified that the question of whether circumstances manifesting extreme indifference to human life had been proven required the jury to consider not defendant's state of mind in a vacuum, but in the context of the surrounding circumstances that the State was able to prove.

In other words, by adding additional language the trial judge aided the jury in understanding that although recklessness is a state of mind or condition of mind, circumstances manifesting extreme indifference is not. And the language focused the jury on the State's burden to prove beyond a reasonable doubt the "probability as opposed to a mere possibility of serious bodily injury[.]"

It is not disputed that aggravated assault requires proof not only that defendant acted recklessly, but that he did so under circumstances manifesting extreme indifference to the value of human life. N.J.S.A. 2C:12-1(b)(1). That phrase has been interpreted to mean "entail[ing] a probability of serious bodily injury[.]" State v. Oriole, 243 N.J. Super. 688, 693 (Law Div. 1990). The very focus of counsel's argument, and the defense theory, was the distinction between the vehicular assault recklessness and aggravated assault recklessness. The judge's instruction did no more than highlight the distinction to defendant's benefit.

At times the prosecutor mistakenly referred to circumstances manifesting an extreme indifference to human life as being a state of mind or "inside someone's head." That misstatement, however, is no basis for reversal. The judge's instruction was thorough, detailed, and clear. Juries are presumed to follow instructions, and ignore legal argument made by attorneys.3 See State v. Smith, 212 N.J. 365, 409 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013); see also State v. Patterson, 435 N.J. Super. 498, 511 (2014).

II.

Defendant next challenges his conviction for aggravated assault. The statute provides that a person is guilty of aggravated assault when he "cause[s] serious bodily injury to another . . . under circumstances manifesting extreme indifference to the value of human life recklessly causes such injury[.]" N.J.S.A. 2C:12-1(b)(1). Defendant contends that the language in State v. Scher, 278 N.J. Super. 249, 272 (App. Div. 1994), certif. denied, 140 N.J. 276 (1995), defining such circumstances, incorrectly interprets the phrase as conduct resulting in a probability of "serious bodily injury." Instead he contends the trial court should have used the interpretation set forth in Curtis, supra, 195 N.J. Super. at 364-65, where the term was defined as conduct resulting in a probability of death. We do not agree with the premise that it is error to interpret the phrase as used in the statute as requiring the probability of serious bodily injury rather than of death. We decline defendant's invitation to abandon the twenty-two-year-old doctrine and reaffirm the holding. The argument lacks sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2).

III.

Defendant also contends that the prosecutor's comments in summation denigrated the defense, constituted namecalling, and sent an improper and prejudicial call to arms. In addition to arguing that the individual comments individually warrant reversal, he argues their prejudicial cumulative effect warrants a new trial.

To justify a reversal, "the prosecutor's conduct must have been 'clearly and unmistakably improper,' and must have substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense." State v. Timmendequas, 161 N.J. 515, 575 (1999) (quoting State v. Roach, 146 N.J. 208, 219, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996)). In criminal cases, prosecutors "are expected to make vigorous and forceful closing arguments to juries." Id. at 587. As long as a prosecutor's summation "stays within the evidence and the legitimate inferences therefrom[,] the [p]rosecutor is entitled to wide latitude in his summation." R.B., supra, 183 N.J. at 330 (quoting State v. Mayberry, 52 N.J. 413, 437 (1968), cert denied, 393 U.S. 1043, 89 S. Ct. 673, 21 L. Ed. 2d 593 (1969)).

In determining whether the prosecutor's conduct was egregious, courts must consider the "tenor of the trial and the responsiveness of counsel and the court to the [alleged] improprieties when they occurred." State v. Echols, 199 N.J. 344, 360 (2009). If no objection is made, the remarks are not deemed prejudicial, and such failure "suggests that defense counsel did not believe the remarks were prejudicial at the time they were made." R.B., supra, 183 N.J.at 333 (quoting State v. Frost, 158 N.J.76, 82-84 (1999)). Improper remarks directed at the central issue of the case may be considered sufficiently egregious. State v. Rodriguez, 365 N.J. Super.38, 51 (App. Div. 2003), certif. denied, 180 N.J. 150 (2004); Frost, supra, 158 N.J.at 87.

In closing, the prosecutor responded to the defense theory that defendant's alcohol consumption could have taken place shortly before the crash. He argued that it was "a little too convenient," "not logical," and "outrageous."

"'A prosecutor is not permitted to cast unjustified aspersions' on defense counsel or the defense. . . . [and] [d]efense counsel should not be subjected to disparaging remarks for simply doing his or her job." Frost, supra, 158 N.J. at 86.

We have held that the prosecutor's characterization of the defense "as outrageous, remarkable, absolutely preposterous and absolutely outrageous" was prejudicial because it attacked counsel "for simply trying to discredit the State's case." State v. Acker, 265 N.J. Super. 351, 356 (App. Div.), certif. denied, 134 N.J. 485 (1993). In State v. Ates, 426 N.J. Super. 521, 535-36 (App. Div. 2012), aff'd, 217 N.J. 253 (2014), a comment that defense witness's testimony was "absolutely preposterous" was found to be improper. However, despite the improper comment, because the evidence was overwhelming and "appropriate arguments [were] otherwise made by the prosecutor during his summation," there was insufficient basis for reversal. Id. at 536. In Rodriguez, supra, 365 N.J. Super. at 50-51, the court held that the prosecutor's remarks calling the insanity defense an excuse denigrated the defense, and because the "insanity defense was a central issue in the case[,]" the remarks deprived defendant of a fair trial.

In this case, however, describing the defense theory as "outrageous" did not make the fleeting reference prejudicial. Similarly, although the phrase "a little too convenient" hinted that the theory had an inherent element of falsehood, the description was not enough to make it prejudicial. To describe the defense as not logical is not error at all.

In this case, the defense theory was that defendant's intoxication and the circumstances surrounding the crash did not demonstrate that defendant's driving made it probable some other person would suffer serious bodily injury. This included the lateness of the hour and the relatively quiet traffic stream at that intersection. By questioning Dr. Brick about BAC numbers at the time of impact had defendant begun to drink closer to the time of the crash, defendant was also attempting to weaken the State's case. Thus we find that the comments to which no objection was made at the time, in context, if error, was harmless.

The prosecutor's description of the drivers the police witnesses had encountered as "drunks," and that defendant "stunk like booze," and "stunk like alcohol," were not prejudicial either. Certainly, a prosecutor's expression of a personal opinion regarding the defendant may be prejudicial. See State v. Gregg, 278 N.J. Super. 182, 188-189 (App. Div. 1994) (improper for characterizing defendant's post-crash conduct as "wasted, trashed, rip-roaring drunk" and using "personally demeaning and degrading epithets"), certif. denied, 140 N.J. 277 (1995); State v. Williams, 113 N.J. 393, 455-456 (1988).

In this case, however, the prosecutor's comment regarding drunks was not a direct reference to defendant but to the officers' experience. It was a poor choice of words, however, defendant could not refute the fact he was inebriated at the time and was only challenging the extent of his intoxication. Accordingly, we do not consider these arguments to have been prejudicial either.

Defendant also claims the prosecutor's statements were a prejudicial call to arms. Certainly, a prosecutor "may not tell a jury that it has not 'met the responsibility' thrust upon them, if it finds defendant not guilty." State v. Scherzer, 301 N.J. Super. 363, 446 (App. Div.) (quoting State v. Knight, 63 N.J. 187, 193 (1973)), certif. denied, 151 N.J. 466 (1997); State v. Sims, 140 N.J. Super. 164, 175 (App. Div. 1976) (improper for implying jury are guilty of cowardice if they vote for acquittal).

Nor may the prosecutor urge the jury to send a message or "make a difference in society, the community, or neighborhood by convicting defendant." Scherzer, supra, 301 N.J. Super. at 446 (citing State v. Goode, 278 N.J. Super. 85, 89 (App. Div. 1994)); State v. Skinner, 218 N.J. 496, 505-506, 525-526 (2014).

Here, the prosecutor argued to the jury that defendant should be held accountable and responsible. That is not a call to arms. In fact, when the prosecutor began his summation, he said defendant should be found guilty "because that's what the proofs and the evidence show." These unobjected-to comments were not prejudicial either.

IV.

Lastly, defendant contends that the court erred in its assessment of the aggravating and mitigating factors, specifically, that the court did not give sufficient weight to aggravating factor three because of defendant's rehabilitative efforts. Our review of a sentence is limited. State v. Miller, 205 N.J. 109, 127 (2011).

Our responsibility is to ensure that the aggravating and mitigating factors found by the court were supported by "competent, credible evidence in the record." Ibid. (quoting State v. Bieneck, 200 N.J. 601, 608 (2010). We must: (1) "require that an exercise of discretion be based upon findings of fact that are grounded in competent, reasonably credible evidence[;]" (2) "require that the factfinder apply correct legal principles in exercising its discretion[;]" and (3) "modify sentences [only] when the application of the facts to the law is such a clear error of judgment that it shocks the judicial conscience." State v. Roth, 95 N.J. 334, 363-64 (1984).

Thus this challenge does not fall within our limited scope of review. The judge acknowledged defendant's efforts at treatment, but in light of his age and other circumstances, accorded this factor slight weight. That conclusion had support in the record. Indeed, the record supports the aggravating and mitigating factors the court found, the sentence imposed was within the statutory guidelines, and it does not "shock [our] judicial conscience." Id. at 364.

Affirmed.

1 Additionally, defendant was convicted by the trial judge of the following Title 39 offenses: driving while intoxicated, N.J.S.A. 39:4-50; possession of an open and unsealed alcoholic beverage container in a motor vehicle, N.J.S.A. 39:4-51(b); failure to observe a traffic signal, N.J.S.A. 39:4-81; and reckless driving, N.J.S.A. 39:4-96. A charge of careless driving, N.J.S.A. 39:4-97, was dismissed by the State prior to trial. The traffic convictions are not appealed.

2 195 N.J. Super. 354 (App. Div.), certif. denied, 99 N.J. 212 (1984).

3 We also note that the verdict sheet with regard to aggravated assault defined the offense as "aggravated assault by causing serious bodily injury to [Brady] recklessly under circumstances manifesting extreme indifference to the value of human life[.]" Naturally, the assault by auto section of the verdict also asked the jury to render a decision on the topic of intoxication. Although verdict sheets are not legal instructions, in this case it further made the point of highlighting the distinction. See State v. Fortin, 178 N.J. 540, 625 (2004) (quoting State v. Nelson, 173 N.J. 417, 449 (2002) ("'The need for clear verdict sheet directions is no less important' because 'if verbal instructions are unclear, or if jurors do not fully comprehend verbal instructions, the typewritten verdict sheet is likely the primary road map they will use to direct their deliberative path.'").