STATE OF NEW JERSEY v. MOHAMMAD A. KHAN
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APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2587-15T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MOHAMMAD A. KHAN,
Defendant-Appellant.
_________________________________
Argued November 14, 2017 – Decided February 12, 2018
Before Judges Fisher and Sumners.
On appeal from Superior Court of New Jersey,
Law Division, Gloucester County, Indictment
No. 14-04-0326.
John S. Furlong, argued the cause for
appellant (Furlong and Krasny, attorneys;
Andrew M. Ferencevych, on the brief).
Sarah Lichter, Deputy Attorney General, argued
the cause for respondent (Christopher S.
Porrino, Attorney General, attorney; Sarah
Lichter, of counsel and on the brief).
PER CURIAM
Defendant Mohammad A. Khan was driving southbound on I-295
in West Deptford at 11:22 p.m. when his vehicle rear-ended another
vehicle causing the tragic death of one of that vehicle's four
occupants. A jury found defendant guilty as a first-time offender
of driving while intoxicated (DWI),
N.J.S.A. 39:4-50(a), and
second-degree vehicular homicide,
N.J.S.A. 2C:11-5(a). He was
later sentenced to a six-year prison term subject to the No Early
Release Act,
N.J.S.A. 2C:43-7.2. Defendant appeals arguing:
POINT ONE
THE TRIAL COURT ERRED WHEN IT FAILED TO DEFINE
NEGLIGENCE AFTER THE JURY SPECIFICALLY
REQUESTED THAT DEFINITION DURING ITS
DELIBERATIONS.
POINT TWO
THE TRIAL COURT ERRED IN ADMITTING STATEMENTS
OF DEFENDANT MADE PRIOR TO BEING INFORMED OF
HIS MIRANDA1 RIGHTS.
POINT THREE
THE TRIAL COURT SENTENCED DEFENDANT WITHOUT
PROPERLY WEIGHING THE AGGRAVATING AND
MITIGATING FACTORS AND WHETHER IT WAS
APPROPRIATE TO SENTENCE APPELLANT UNDER
N.J.S.[A.] 2C:44-1[f](2).
We affirm regarding the admission of defendant's statement, but
reverse and remand for retrial on the basis that the trial court
should have responded to the jury's question seeking a definition
of negligence before the jury reached its verdict.
1
Miranda v. Arizona,
384 U.S. 436 (1966).
2 A-2587-15T4
In addressing defendant's contention in Point I, we focus on
the evidence related to defendant's trial strategy, the jury's
deliberations, and the court's response to the jury's question.
In opening and closing arguments, defendant contended that he was
not guilty of vehicular homicide because his conduct was negligent
not reckless. Our vehicular homicide statute requires the State
to prove that defendant drove recklessly and caused the death of
another person.
N.J.S.A. 2C:11-5(a). As defined by
N.J.S.A.
2C:2-2(b)(3), "[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." Where the State proves
a defendant was guilty of DWI, there is "an inference that the
defendant was driving recklessly."
N.J.S.A. 2C:11-5(a). A blood
alcohol content (BAC) of 0.08 percent or more is a per se DWI
violation.
N.J.S.A. 39:4-50(a).
Defendant did not dispute the State's proofs that his blood
drawn at the hospital four hours after the accident indicated his
BAC was 0.081 percent with an uncertainty factor of plus minus
0.003 percent. According to testimony of the investigating state
trooper, defendant stated the accident was caused when he fell
asleep at the wheel moments before the collision. Because the
trooper detected alcohol on defendant's breath, along with
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defendant's slow, slurred speech, and droopy eyes, he asked
defendant if he had been drinking. Defendant replied, that "he
did not drink" because "[i]t was against his religion". Unswayed
by the remarks, the trooper conducted three field sobriety tests
on defendant, which he failed.
Defendant also posited the theory that the victim's car had
just pulled onto the highway traffic from the shoulder lane through
the testimony of another trooper, who testified for the State
regarding an accident report he prepared based on his analysis of
the accident. The trooper concluded the victim's car was traveling
51 mph, where the speed limit was 65 mph, with a pre-impact average
speed of 48 mph prior to impact by defendant's vehicle. He stated
defendant's vehicle was traveling between 105 mph and 113 mph
prior to impact, with an average pre-impact speed of 96 mph.
Defendant asserted the trooper's assessment of his vehicle's speed
was exaggerated because a video depicts that seconds before the
accident, his vehicle was travelling at the same rate of speed as
other vehicles on the highway.
After deliberating for a few hours, the jury submitted a
question to the court asking for the definition of negligence.
Although defense counsel did not initially request such a charge,
he proposed the court provide the jury "either the definition of
civil negligence from the civil jury charge or, in the alternative,
4 A-2587-15T4
an abbreviated version of [
N.J.S.A.] 2C:2-3 causation charge. The
court declined both the jury's request and counsel's alternative,
with no objection from the State. The court explained that since
the charge defined recklessness, an element of the vehicular
homicide statute offense, it was not appropriate to define
negligence, which was not an element of the offense. After the
court advised the jury in a note stating, "no, I will not give you
the definition of negligence," the jury continued deliberating for
about eight minutes before retiring for the day. Before the jury
left, the court instructed the jury that once all the jurors
reported to the jury room the next morning, it could continue
deliberations. Prior to dismissing the attorneys, the court
informed them that, if they wanted to, they could submit briefs
regarding the propriety of giving the jury the definition of
negligence as it requested. Later that evening, the defense faxed
a letter brief to the court.
While the jury resumed its deliberations at 9:00 the next
morning, the court was conducting a conference in chambers with
the attorneys to discuss defendant's legal submission concerning
the jury's request for a definition of negligence. At some time
between 9:10 a.m. and 9:15 a.m., the jury advised the court that
it reached a verdict. Before the jury returned to the courtroom
to announce its verdict, defendant made a motion for a mistrial
5 A-2587-15T4
because the jury reached a verdict without receiving the requested
guidance on negligence. The court denied the motion, determining
it was unpersuaded by defendant's arguments to reverse its decision
not to instruct the jury on negligence. The jury was then brought
into the courtroom and rendered its guilty verdict.
A defendant's right to a fair criminal trial requires that
the jury be given understandable jury instructions. State v.
Galicia,
210 N.J. 364, 386 (2012). Consistent with that principle,
erroneous instructions on material issues are presumed to be
reversible error. State v. Marshall,
173 N.J. 343, 359 (2002).
In some cases, the trial court must do more than read the elements
of the offense being charged to enable the jury to fulfill its
obligations. State v. Concepcion,
111 N.J. 373, 379 (1988). Thus,
"[a]n instruction that is appropriate in one case may not be
sufficient for another case." Ibid.
One such case is State v. Atwater,
400 N.J. Super. 319 (App.
Div. 2008). There, the defendant was charged with vehicular
homicide and was not allowed to argue negligence in summation,
"nor did [the court] respond to the jury's questions by comparing
recklessness with other mental states." Id. at 332. Evidence was
presented by the two medical examiners that the victims' deaths
were accidental. Ibid. And since the jury's questions "made it
clear that they were confused on the mental state required for a
6 A-2587-15T4
finding of guilt on vehicular homicide[,]" we concluded the trial
court should have "clarif[ied] the jury's confusion on the
requisite mental state" by distinguishing between recklessness and
negligence. Ibid.
The situation before us calls for a similar result. In fact,
even more so here, because the jury specifically requested the
definition of negligence. While the court was correct in its
reflection that negligence was not an element of vehicular
homicide, it should have honored the jury's request given that it
was not contrary to our court rules and evidentiary standards, and
would have helped the jury determine if defendant's conduct was
reckless, an element of the offense.
We disagree with the State's position that the court was
correct in refusing to define negligence because it was irrelevant
whether defendant's conduct amounted to negligence and the
definition would have distracted the jury from considering
defendant's proper state of mind. We view the jury's request as
an effort to clarify the meaning of reckless, a required element
of vehicular homicide. The fact that the jury deliberated for
approximately twenty minutes after its request was declined,
suggests that it may not have had an understanding of the
recklessness element of vehicular homicide to properly consider
whether the State had met its burden of proof and defaulted by
7 A-2587-15T4
finding defendant guilty. Accordingly, we reverse and remand for
a new trial. On remand, the definition of negligence should only
be provided if requested by the jury.
Although our reversal on the jury charge disposes of the
appeal, we will address the Miranda issue raised by defendant to
provide guidance at the retrial.
As noted, when the investigating trooper arrived at the
accident scene and asked defendant whether he had been drinking,
defendant replied he does not drink because it is against his
religion. Defendant filed a pre-trial motion sought to exclude
the entire statement. After hearing the testimony of the trooper
and defendant, as well as the arguments, the court only agreed to
exclude defendant's reference to his religion.
Defendant argues the court erred because the trooper was
conducting a custodial interrogation of an accident investigation,
which under Berkemer v. McCarty,
468 U.S. 420 (1984), required
that he be advised of his Miranda rights before he was questioned.
We disagree. Miranda protects a defendant's right against
self-incrimination based upon "the Fifth Amendment to the United
States Constitution and this state's common law, now embodied in
statute,
N.J.S.A. 2A:84A-19, and evidence rule, N.J.R.E. 503."
State v. S.S.,
229 N.J. 360, 381 (2017) (citation omitted). Here,
defendant's statement that he was not drinking was not
8 A-2587-15T4
incriminating but exculpatory. Consequently, Miranda did not
protect the statement.
Moreover, even if we somehow consider the statement was
incriminating, the court properly allowed its admission. The
court found that the trooper was investigating a serious motor
vehicle accident, and upon observing that defendant appeared to
be inebriated, the trooper had the right to ask defendant if he
had been drinking. The court properly reasoned the trooper was
not required to advise defendant of his Miranda rights to remain
silent and not to incriminate himself until the trooper determined
there was probable cause to arrest defendant after defendant failed
the field sobriety tests.
Because we are remanding this matter for retrial, we need not
address defendant's argument in Point III regarding the court's
weighing of the aggravating and mitigating factors and decision
not to sentence defendant in the third-degree range rather than
the second-degree range.
Affirmed in part, reversed in part and remanded for retrial.
9 A-2587-15T4
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