STATE OF NEW JERSEY v. THOMAS VANDERWEIT
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2074-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
THOMAS VANDERWEIT,
Defendant-Appellant.
____________________________
Submitted January 17, 2018 – Decided March 8, 2018
Before Judges Hoffman, Gilson, and Mayer.
On appeal from Superior Court of New Jersey,
Law Division, Bergen County, Indictment No.
14-03-0379.
Faugno & Associates, LLC, attorneys for
appellant (Paul Faugno, of counsel and on the
brief).
Dennis Calo, Acting Bergen County Prosecutor,
attorney for respondent (Elizabeth R. Rebein,
Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
On a Sunday morning in July 2012, defendant Thomas Vanderweit
was driving on the Garden State Parkway. Another vehicle cut off
his vehicle and, thereafter, the two drivers began speeding down
the roadway, weaving in and out of lanes, and cutting in front of
each other's vehicles. While in front of the other vehicle,
defendant hit his brakes to exit the parkway. The driver behind
him lost control of the vehicle, hit a guardrail, spun into
defendant's vehicle, flipped over, and a passenger was ejected and
killed.
A jury convicted defendant of second-degree vehicular
homicide,
N.J.S.A. 2C:11-5, and he was sentenced to six years in
prison, subject to the No Early Release Act (NERA),
N.J.S.A. 2C:43-
7.2. Defendant appeals. We affirm.
I.
On the morning of July 1, 2012, defendant was driving his
black Chevy Trailblazer (Trailblazer) on the Garden State Parkway.
At the same time, John Emili was driving to church with his
girlfriend and A.B.,1 who was sitting in the back seat of Emili's
gray Honda Pilot (Honda). As Emili's Honda pulled onto the
parkway, it cut in front of defendant's Trailblazer.
Three witnesses, who also were traveling on the Garden State
Parkway, testified that they saw the Honda and Trailblazer speeding
along the parkway, weaving in and out of traffic, and cutting in
1
We use initials to protect the privacy interests of the victim.
R. 1:38-3(c).
2 A-2074-15T1
front of one another. One of the witnesses described that, at
times, the Trailblazer and Honda were very close to each other and
driving in an "erratic manner." That witness also testified that
the Trailblazer appeared to be chasing the Honda and following it
"at a very close distance."
Eventually, defendant's Trailblazer got in front of the
Honda, and defendant applied his brakes to exit the parkway on the
right-hand side. At that point, Emili lost control of his Honda.
The Honda hit a guardrail, spun back into the lane, hit defendant's
Trailblazer, and repeatedly flipped over. As the Honda was
flipping over, A.B. was ejected from the vehicle and killed. The
parties stipulated that A.B. died as a direct result of the
injuries sustained when she was ejected from the Honda.
Multiple police and emergency personnel responded to the
scene of the crash. Detective Sergeant Mark Smith of the New
Jersey State Police was one of the first State police officers to
arrive at the scene. After trying to "contain" the scene of the
accident, Smith began to investigate the accident. Accordingly,
Smith separately spoke with defendant and Emili. Smith's
conversations with both defendant and Emili were recorded by a
mobile audio and video recorder in Smith's police car.
Two other New Jersey State Police Officers, Trooper Russell
Peterson and Trooper Juan Pachon, also responded to the scene.
3 A-2074-15T1
Pachon and Peterson spoke with defendant on the roadside and that
conversation was also audio recorded. Defendant told the officers
that the driver of the Honda had cut him off and defendant then
passed the Honda. While in the left lane of the parkway, and
while the Honda was behind him, defendant applied his brakes "hard"
to move to the right to get off at an exit. Defendant then saw
the Honda swerve and hit a guardrail. The Honda thereafter swerved
back onto the road and hit defendant's Trailblazer, propelling the
Trailblazer to hit the guardrail.
Defendant and Emili were taken to the State Police barracks,
where they were interviewed separately. Initially, defendant and
Emili were given summonses for reckless driving, racing on the
highway, and making unsafe lane changes. Thereafter, a grand jury
indicted defendant and Emili for second-degree vehicular homicide.
Defendant and Emili moved to suppress the statements they had
given at the roadside and at the police barracks. The trial court
conducted two evidentiary hearings, and heard testimony from
Trooper Peterson, Detective Smith, and Detective Christopher Kelly
of the Bergen County Prosecutor's Office.2 The court denied the
2
Defendant and Emili initially moved to suppress the statements
they had given at the police barracks. Thereafter, they filed a
second motion to suppress the statements they had given at the
roadside.
4 A-2074-15T1
motion to suppress the roadside statements, but granted the motion
to suppress the statements given at the police barracks because
defendant and Emili had not been given their Miranda3 rights before
their formal interviews.
In written opinions, the motion judge found Trooper Peterson
and Detective Smith to be credible. The judge then found that
when Peterson and Smith spoke separately with defendant, defendant
was not in custody, nor subject to a custodial interrogation. The
judge based that finding on the facts that defendant was not under
arrest, was not in handcuffs, was detained for less than an hour,
and was not subject to coercive questioning. Instead, the judge
found that the State police were trying to find out what had caused
the accident and that defendant was questioned at the roadside,
which was a public area.
Defendant and Emili were tried separately. At defendant's
trial, the State presented testimony from six fact witnesses and
an expert. The fact witnesses included three of the drivers who
were traveling on the Garden State Parkway on July 1, 2012, and
saw the Trailblazer and Honda. The State also presented testimony
from Emili's girlfriend who was a passenger in the Honda. State
Police Officers Smith and Pachon also testified. Finally, New
3
Miranda v. Arizona,
384 U.S. 436 (1966).
5 A-2074-15T1
Jersey State Police Detective Sergeant Derek DiStaso testified as
an expert in accident reconstruction.
DiStaso recreated what he believed was the crash sequence.
Relying on witness statements, including statements made by
defendant, and his observation and measurements of tire marks at
the scene, DiStaso opined that defendant hit his brakes hard while
in front of the Honda. The Honda then took evasive action and
lost control. DiStaso acknowledged that Emili, who also gave
statements about the crash, did not mention taking evasive action
to avoid defendant's Trailblazer.
During the trial, an issue arose regarding the admission of
evidence concerning A.B.'s failure to wear a seat belt. The trial
judge ruled that such evidence was inadmissible and not relevant
to the issue of causation. In support of that ruling, the trial
court issued a written opinion, which was dated and filed on
November 4, 2015.
At the close of evidence, the trial court conducted a charge
conference. The court then charged the jury and gave them a
written copy of the instructions. With regard to the substantive
charge of vehicular homicide, the trial court instructed the jury
using the model jury charges. In that regard, the court explained,
in relevant part:
6 A-2074-15T1
[I]n order for you to find the defendant
guilty of this crime, the State must prove the
following elements beyond a reasonable doubt:
One, that the defendant was driving a vehicle;
two, that the defendant caused the death of
[A.B.]; and, three, that the defendant caused
such death by driving the vehicle recklessly.
In order to find the defendant caused
[A.B.'s] death, you must find that [A.B.]
would not have died but for the defendant's
conduct.
. . . .
Causation has a special meaning under the
law. To establish causation, the State must
prove two elements, each beyond a reasonable
doubt: First, but for the defendant's conduct,
the result in question would not have
happened. In other words, without defendant's
actions, the result would not have occurred.
Second, for reckless conduct, that the actual
result must have been within the risk of which
the defendant was aware. If not, it must
involve the same kind of injury or harm as the
probable result and must also not be too
remote, too accidental in its occurrence, or
too dependent on another's volitional act to
have a just bearing on the defendant's
liability or on the gravity of his [] offense.
Now, I want to also advise you of another
item. In this case, you heard evidence of the
police questioning John Emili about whether
or not [A.B.] was wearing a seatbelt. I
instruct you that whether or not [A.B.] was
wearing a seatbelt is not relevant to the
causation issue. The issue of causation
remains one that must be resolved by you, as
instructed by this [c]ourt earlier in my
charge to you. However, the status of the
seatbelt is not to be part of your
consideration.
7 A-2074-15T1
At the end of the first day of jury deliberations, juror
thirteen advised the court that his boss had contacted him and
asked him to return to work as soon as possible. In response, the
trial judge offered to write a letter to the juror's boss
explaining that it was necessary that he remain on the jury until
deliberations concluded. Juror thirteen accepted that offer, and
both defense counsel and the State agreed that was the appropriate
response. No one requested to voir dire the juror. Thus, the
trial judge promptly wrote the letter, and juror thirteen returned
for the second day of deliberations without any further issues.
During jury deliberations, the jurors sent out several notes
to the court. One of the notes requested a clarification on a
footnote relating to the issue of proximate cause. After
conferring with counsel, the trial judge informed the jury that
it was charged with the language of the statute referenced in the
footnote and, then, reinstructed the jury on the relevant portion
of the proximate cause charge.
On the second day of deliberations, the jury sent out a note
indicating that they were not able to reach a unanimous decision
and requested instructions on what to do. In response, the trial
court gave the model jury charge on the jury's duty to continue
to deliberate in good faith to see if they could reach a unanimous
8 A-2074-15T1
verdict. Shortly thereafter, the jury unanimously found defendant
guilty.
Following the verdict, defendant filed a motion for a judgment
of acquittal or for a new trial. The trial court denied both
motions. The trial court explained the reasons for its rulings
in a written opinion issued on January 8, 2016.
II.
On appeal, defendant makes five arguments.
POINT I – The Trial Court's denial of
defendant's motion for a new trial was
erroneous as the jury verdict was against the
weight of the evidence and defendant should
be granted a new trial
POINT II – The Trial Court's jury instruction
on proximate cause was erroneous and led to
confusion amongst the jury
POINT III – The questioning of the defendant
at the roadside given the totality of
circumstances constituted an interrogation
and triggered the Miranda Rule
POINT IV – The testimony provided by the
State's reconstruction expert constituted a
net opinion and should have been barred
POINT V – The Trial Court's failure to voir
dire Juror 13 constitutes reversible error
We are not persuaded by any of these arguments and we
therefore affirm defendant's conviction and sentence. We will
address defendant's five arguments in turn.
9 A-2074-15T1
1. The Weight of the Evidence
We review a trial court's decision to deny a motion for a new
trial for abuse of discretion. State v. Russo,
333 N.J. Super.
119, 137 (App. Div. 2000). An appellate court will not reverse
the trial court's ruling on whether a jury verdict was against the
weight of the evidence "unless it clearly appears that there was
a miscarriage of justice under the law." R. 2:10-1; State v.
Afanador,
134 N.J. 162, 178 (1993). We will not disturb a jury
verdict "[u]nless no reasonable jury could have reached [that]
verdict . . . ." Afanador,
134 N.J. at 178; see also State v.
Jackson,
211 N.J. 394, 413-14 (2012) (If "any trier of fact could
rationally have found beyond a reasonable doubt that the essential
elements of the crime were present[,]" there was no "miscarriage
of justice." (quoting Afanador,
134 N.J. at 178)).
Here, the State's theory was that defendant's braking caused
Emili to swerve and lose control of his vehicle, which resulted
in A.B. being ejected from Emili's car. Defendant contends that
there was no evidence that defendant applied his brakes and, thus,
the State's theory was unsupported. This argument lacks merit.
Notably, defendant's argument ignores that in his roadside
statement, which was played for the jury, he admits that he "broke
hard" when he was exiting the Garden State Parkway. In addition
to defendant's admission, the State presented evidence that
10 A-2074-15T1
defendant was speeding, and that he and Emili were weaving in and
out of traffic down the parkway. An accident reconstruction expert
also recreated the crash sequence, in which defendant's braking
caused Emili to swerve. Thus, there was sufficient evidence for
a reasonable jury to determine that the State had proven its case
beyond a reasonable doubt. Accordingly, we will not disturb the
jury's verdict.
2. The Jury Instructions on Causation
Causation is one of three elements that the State must prove
beyond a reasonable doubt for the jury to find a defendant guilty
of second-degree vehicular homicide.
N.J.S.A. 2C:11-5; State v.
Buckley,
216 N.J. 249, 262 (2013). "Causation is a factual
determination for the jury to consider, but the jury may consider
only that which the law permits it to consider." State v. Pelham,
176 N.J. 448, 466 (2003).
To find causation, the jury must engage in a multi-step
analysis. Buckley,
216 N.J. at 263; see
N.J.S.A. 2C:2-3.
Initially, the jury must determine whether the State has
established "but for" causation, by demonstrating that the event
would not have occurred absent the defendant's conduct.
N.J.S.A.
2C:2-3(a); Buckley,
216 N.J. at 263. Next, because the State also
has to prove the mens rea of recklessness to establish vehicular
11 A-2074-15T1
homicide, the jury must conduct a "culpability assessment."
N.J.S.A. 2C:2-3(c); Buckley,
216 N.J. at 263.
To find culpability in a vehicular homicide case, the jury
must determine that "the actual result [either (1) was] within the
risk of which the actor [was] aware or, . . . [(2)] involved the
same kind of injury or harm as the probable result . . . ."
N.J.S.A. 2C:2-3(c). Thus,
the first prong of
N.J.S.A. 2C:2-3(c) requires
the jury to assess whether defendant was aware
that his allegedly reckless driving gave rise
to a risk of a fatal motor vehicle accident.
. . . The second prong of
N.J.S.A. 2C:2-3(c)
. . . requires proof that the actual result
-- in this case the victim's death --
"involves the same kind of injury or harm as
the probable result" of the defendant's
conduct.
[Buckley,
216 N.J. at 264-65 (quoting Pelham,
176 N.J. at 461).]
"If the jury determines that the State has proven beyond a
reasonable doubt that the defendant understood that the manner in
which he or she drove created a risk of a traffic fatality, the
element of causation is established under the first prong of
N.J.S.A. 2C:2-3(c)." Ibid. (citing State v. Martin,
119 N.J. 2,
12 (1990)).
The second prong requires "the jury to determine whether
intervening causes or unforeseen conditions lead to the conclusion
that it is unjust to find that the defendant's conduct is the
12 A-2074-15T1
cause of the actual result." State v. Pelham,
176 N.J. 448, 461
(2003) (quoting Martin,
119 N.J. at 13). "'Intervening cause' is
defined as '[a]n event that comes between the initial event in a
sequence and the end result, thereby altering the natural course
of events that might have connected a wrongful act to an injury.'"
Ibid. (quoting Black's Law Dictionary (7th ed. 1999)); see also
Buckley,
216 N.J. at 265 ("[An] 'intervening cause' denotes an
event or condition which renders a result 'too remote, accidental
in its occurrence, or dependent on another's volitional act' to
fairly affect criminal liability or the gravity of the offense.").
In Buckley, our Supreme Court held that evidence that the
deceased victim was not wearing a seat belt at the time of the
motor vehicle accident "is irrelevant to both 'but for' causation
under
N.J.S.A. 2C:2-3(a)(1) and the jury's causation determination
under the first prong of N.J.S.A. 2C:2-3(c)'s statutory test ––
whether defendant was aware that the manner in which he [or she]
drove posed a risk of a fatal accident." Buckley,
216 N.J. at
255. Additionally, this court has held that "[even] [i]f the
careless driving of another or the victim's failure to wear a seat
belt also were contributing causes of the accident and resulting
fatality, this would not absolve defendant of responsibility."
State v. Radziwil,
235 N.J. Super. 557, 570 (App. Div. 1989),
(citing
N.J.S.A. 2C:2-3(c)), aff’d o.b.,
121 N.J. 527 (1990).
13 A-2074-15T1
In Pelham, the Court held that the victim's removal from life
support, five months after a motor vehicle accident, was not "an
independent intervening cause capable of breaking the chain of
causation triggered by defendant's wrongful actions." Pelham,
176 N.J. at 468. Accordingly, the Court held that the jury could not
consider a victim's removal from life support to negate a
defendant's criminal liability. Id. at 467.
"Adequate and understandable jury instructions in criminal
cases are essential to a defendant's right to a fair trial." State
v. McKinney,
223 N.J. 475, 495 (2015) (quoting State v. Green,
86 N.J. 281, 287 (1981)). Jury instructions serve as "a road map to
guide the jury, and without an appropriate charge a jury can take
a wrong turn in its deliberations." State v. Galicia,
210 N.J.
364, 386 (2012) (quoting Martin,
119 N.J. at 15).
Here, defendant raises two arguments regarding the jury
instructions on causation. First, he contends that the trial
court should not have instructed the jury on the second prong of
the culpability assessment. Second, defendant argues that the
trial court erred in providing the jury with the limiting
instruction that whether A.B. was wearing a seat belt was not
relevant to and should not be considered regarding causation.
Initially, we note that defendant did not object to the
causation charge and limiting instruction given at trial.
14 A-2074-15T1
Therefore, we review the charge for plain error. See McKinney,
223 N.J. at 494 (reviewing jury instructions for plain error
"clearly capable of producing an unjust result" where the parties
did not object to the instruction at trial (quoting R. 2:10-2)).
Applying these standards, we find that even if the trial
court erred in instructing the jury on the second prong of the
culpability assessment, that error was harmless. Buckley holds
that seat belt evidence is irrelevant with respect to "but for"
causation and the first prong of the culpability assessment.
216 N.J. at 255. The trial court correctly found and instructed the
jury that whether A.B. was wearing a seat belt could not be
considered for "but for" causation or the first prong. Buckley
does not hold, however, that seat belt evidence is irrelevant with
respect to the second prong. The trial court should have either
allowed defendant to introduce seat belt evidence for the second
prong, or not have instructed the jury on the second prong.
Limiting the jury's consideration of the seat belt evidence and
still instructing on the second prong was improper. That error
was harmless, however, because there was sufficient credible
evidence for the jury to find defendant culpable under the first
prong.
15 A-2074-15T1
3. Defendant's Roadside Statements
The Fifth Amendment of the United States Constitution
guarantees all persons the privilege against self-incrimination.
U.S. Const. amend. V. This privilege applies to the states through
the Fourteenth Amendment. U.S. Const. amend. XIV; Griffin v.
California,
380 U.S. 609, 615 (1965). Moreover, in New Jersey,
there is a common law privilege against self-incrimination, which
has been codified in statutes and rules of evidence.
N.J.S.A.
2A:84A-19; N.J.R.E. 503; State v. Reed,
133 N.J. 237, 250 (1993).
Accordingly, it has long been established that when a person is
taken into custody or otherwise deprived of his or her freedom,
that person is entitled to certain warnings before he or she can
be questioned. Miranda,
384 U.S. 436.
The Miranda requirement is triggered by a "'custodial
interrogation,' which is 'questioning initiated by law enforcement
officers after a person has been taken into custody or otherwise
deprived of . . . freedom of action in a significant way.'" State
v. Smith,
374 N.J. Super. 425, 430 (App. Div. 2005) (quoting
Miranda,
384 U.S. at 444). "[C]ustody exists if the action of the
interrogating officers and the surrounding circumstances, fairly
construed, would reasonably lead a detainee to believe he [or she]
could not leave freely." State v. Coburn,
221 N.J. Super. 586,
596 (App. Div. 1987) (citing State v. Godfrey, 131 N.J. Super.
16 A-2074-15T1
168, 176 n.1 (App. Div. 1974)). Under this objective test, courts
consider the time, location, and duration of the detention, the
nature of the questioning, and the conduct of the officers in
evaluating the degree of restraint. See, e.g., Smith,
374 N.J.
Super. at 431; State v. Pierson,
223 N.J. Super. 62, 67 (App. Div.
1988).
"Miranda is not implicated when the detention and questioning
is part of an investigatory procedure rather than a custodial
interrogation." Pierson,
223 N.J. Super. at 66. An investigatory
procedure includes detention and questioning during a traffic stop
or a field investigation. See Berkemer v. McCarty,
468 U.S. 420,
437-38 (1984) (holding that a traffic stop is "presumptively
temporary and brief" and "public, at least to some degree" and,
thus, does not automatically trigger the Miranda requirement);
Terry v. Ohio,
392 U.S. 1 (1968) (holding that officers may briefly
detain a person to investigate circumstances that provoke
reasonable suspicion). While a person in either context is clearly
detained, Miranda warnings are only required if, under the totality
of the circumstances, the detention becomes "the functional
equivalent of an arrest." Smith,
374 N.J. Super. at 431 (quoting
Berkemer,
468 U.S. at 442); see also State v. Nemesh,
228 N.J.
Super. 597, 606-07 (App. Div. 1988) (holding that under Berkemer,
"[i]t is obvious that an inquiry by an officer upon his [or her]
17 A-2074-15T1
arrival at the scene of an accident as to who was operating the
involved vehicles is not custodial interrogation."). Thus, in the
context of a field investigation or traffic stop, "[t]he question
is whether a reasonable person, considering the objective
circumstances, would understand the situation as a de facto arrest
or would recognize that after brief questioning he or she would
be free to leave." Smith,
374 N.J. Super. at 432.
When reviewing a motion to suppress statements, we generally
defer to the factual findings of the trial court if they are
supported by sufficient credible evidence in the record. See
State v. Hathaway,
222 N.J. 453, 467 (2015) (citing State v.
Elders,
192 N.J. 224, 243-44 (2007)). Moreover, deference to a
trial court's factual findings is appropriate because the trial
court has the "opportunity to hear and see the witnesses and to
have the 'feel' of the case, which a reviewing court cannot
enjoy[.]" State v. S.S.,
229 N.J. 360, 374 (2017) (quoting Elders,
192 N.J. at 244). We review de novo the trial court's legal
conclusions that flow from established facts. See State v.
Hamlett,
449 N.J. Super. 159, 169 (App. Div. 2017).
Based on testimony and evidence presented at pretrial
evidentiary hearings, the motion judge found that the roadside
questioning of defendant was not custodial in nature and, thus,
Miranda warnings were not required. That finding was premised on
18 A-2074-15T1
additional findings of fact, which included that defendant was not
under arrest, was not placed in handcuffs, and was not subject to
coercive questioning. Instead, defendant simply was asked to
explain what happened.
The motion judge also recognized that defendant was not free
to leave the scene because the police were investigating a motor
vehicle accident. The judge found, however, that under the
totality of the circumstances, defendant's detention did not
become the functional equivalent of an arrest. All of the motion
judge's findings of fact are supported by credible evidence.
Moreover, the judge's application of those facts to the law was
correct. Accordingly, we find no error in the decision to deny
the motion to suppress defendant's roadside statements. Moreover,
the statements used at trial were properly admitted.
4. The Testimony of the State's Accident Reconstruction
Expert
A determination on the admissibility of expert testimony is
committed to the sound discretion of the trial court. Townsend
v. Pierre,
221 N.J. 36, 52 (2015) (citing State v. Berry,
140 N.J.
280, 293 (1995)). Appellate review of the trial court's grant or
denial of a motion to preclude expert testimony is limited to
abuse of discretion. Id. at 53.
19 A-2074-15T1
Two rules of evidence frame the analysis for determining the
admissibility of expert testimony. See N.J.R.E. 702; N.J.R.E.
703. N.J.R.E. 702 identifies when expert testimony is permissible
and requires the experts to be qualified in their respective
fields. "An expert witness's qualifications are assessed based
on 'knowledge, skill, experience, training, or education.'"
Nicholas v. Mynster,
213 N.J. 463, 478-79 (2013) (quoting N.J.R.E.
702).
N.J.R.E. 703 addresses the foundation for expert testimony.
Expert opinions must be grounded in "facts or data derived from
(1) the expert's personal observations, or (2) evidence admitted
at the trial, or (3) data relied upon by the expert which is not
necessarily admissible in evidence but which is the type of data
normally relied upon by experts." Townsend,
221 N.J. at 53
(quoting Polzo v. Cty. of Essex,
196 N.J. 569, 583 (2008)). The
net opinion rule is a "corollary of [N.J.R.E. 703] . . . which
forbids the admission into evidence of an expert's conclusions
that are not supported by factual evidence or other data." Id.
at 53-54 (quoting Polzo,
196 N.J. at 583).
Therefore, an expert is required to "'give the why and
wherefore' that supports the opinion, 'rather than a mere
conclusion.'" Id. at 54 (quoting Borough of Saddle River v. 66
E. Allendale, LLC,
216 N.J. 115, 144 (2013)). The net opinion
20 A-2074-15T1
rule directs that experts "be able to identify the factual bases
for their conclusions, explain their methodology, and demonstrate
that both the factual bases and the methodology are reliable." Id.
at 55 (quoting Landrigan v. Celotex Corp.,
127 N.J. 404, 417
(1992)). "Given the weight that a jury may accord to expert
testimony, a trial court must ensure than an expert is not
permitted to express speculative opinions or personal views that
are unfounded in the record." Ibid. In short, the net opinion
rule is a "prohibition against speculative testimony." Ehrlich
v. Sorokin,
451 N.J. Super. 119, 134 (App. Div. 2017) (quoting
Harte v. Hand,
433 N.J. Super. 457, 465 (App. Div. 2013)).
Initially, we note that for the first time on appeal,
defendant argues that the testimony of the State's accident
reconstruction expert should have been barred as an impermissible
net opinion. Therefore, we review the testimony for plain error.
R. 2:10-2.
DiStaso reconstructed the crash sequence between defendant's
and Emili's vehicles, and testified that defendant's braking while
exiting the Garden State Parkway caused Emili to swerve and lose
control of his vehicle, which resulted in A.B. being ejected from
the car. Defendant argues that DiStaso's expert testimony lacked
a factual basis because there was no evidence that defendant braked
when exiting the parkway and that the tire marks from Emili's
21 A-2074-15T1
vehicle were from Emili swerving. We already have determined that
there was sufficient evidence that defendant applied his brakes
when exiting the parkway. Further, DiStaso's opinion regarding
the tire marks, and the crash sequence in its entirety, was based
on his investigation and observations of the scene, witness
statements, mathematical calculations, and his training and
experience as an accident reconstructionist. The trial court
admitted DiStaso's proffered testimony after conducting a Rule 104
hearing. N.J.R.E. 104. We discern no abuse of discretion in that
ruling, and certainly no plain error, in the admission of the
expert's testimony.
5. Juror Thirteen
During deliberations by the jury, juror thirteen expressed
concerns about the length of the trial and having to return to
work. In response to that concern, the trial judge offered to
write a letter to juror thirteen's boss explaining how important
it was that the juror remained on the jury until deliberations
concluded. Counsel for defendant and the State agreed that a
letter to the juror's employer was the appropriate response. The
juror accepted the letter. No one requested that juror thirteen
be voir dired. Juror thirteen returned the next day for
deliberations and expressed no further concerns regarding any
employment obligations.
22 A-2074-15T1
On appeal, defendant argues, for the first time, that the
trial court erred in failing to voir dire juror thirteen during
deliberations. We review this alleged omission for plain error.
R. 2:10-2.
The Sixth Amendment of the United States Constitution and
Article I, paragraph 10 of the New Jersey Constitution guarantee
criminal defendants the right to trial by an impartial jury. U.S.
Const. amend. VI; N.J. Const. art. I, para. 10. "That
constitutional privilege includes the right to have the jury decide
the case based solely on the evidence presented at trial, free
from the taint of outside influences and extraneous matters."
State v. R.D.,
169 N.J. 551, 557 (2001).
There is no evidence that juror thirteen was unable to
deliberate fairly or free from outside influence. The juror was
not exposed to extrajudicial information that might have tainted
the juror's impartiality. Instead, the juror raised a concern
about work, the trial judge addressed that concern, and the juror
accepted the judge's suggested resolution; that was, a letter to
the juror's employer. Thus, we discern no error, or plain error,
in the trial judge not questioning juror thirteen further after
the juror returned and expressed no further concern.
Affirmed.
23 A-2074-15T1
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