Decided: June 20, 1988; Approved for publication October 14, 1988.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
STEPHEN J. MUNIZ, DEFENDANT-APPELLANT
On appeal from Superior Court of New Jersey, Law Division, Monmouth County.
The opinion of the court was delivered by
The primary issue on this appeal is whether the motor vehicle offenses of reckless driving, N.J.S.A. 39:4-96, and careless driving, N.J.S.A. 39:4-97, must be submitted to the jury as lesser included offenses in a trial for death by auto under N.J.S.A 2C:11-5a. We conclude that these motor vehicle offenses are lesser included offenses of death by auto and therefore reverse defendant's conviction for death by auto based on the trial court's failure to so instruct the jury.
Defendant's conviction arose out of an accident at an intersection located in Middletown Township. Decedent had stopped his passenger car for a red light. When the light turned green, decedent drove his car into the intersection and was struck by a pick-up truck operated by defendant.
Defendant was charged in a one count indictment with death by auto. The prosecution contended that defendant had operated the pick-up truck recklessly by attempting to run a red light. The prosecution also contended that defendant had acted recklessly in driving the truck when he knew that the brakes were not operating properly.
The trial court did not submit any lesser included offenses to the jury. Thus, the jury was given the option of convicting defendant of death by auto or of acquitting him. The jury returned a verdict of guilty of death by auto, and the court sentenced defendant to an indeterminate term at the Youth Correctional Institution Complex.
On appeal defendant argues:
POINT I: THE TRIAL COURT'S FAILURE TO CHARGE THE LESSER INCLUDED OFFENSES OF RECKLESS DRIVING AND CARELESS DRIVING CONSTITUTES REVERSIBLE ERROR. (N.J. CONST. (1947) ART. I, PAR. 10; U.S. CAT AMEND. VI, XIV) (Not Raised Below).
POINT II: THE PROSECUTOR'S MISCONDUCT WHICH CULMINATED IN HIS REMARK TO THE JURY THAT THE VICTIM'S FAMILY WOULD ONLY GET PENNIES FROM THE CIVIL SUIT DENIED DEFENDANT A FAIR TRIAL. (N.J. CONST. (1947) ART. I, PAR. 10; U.S. CONST. AMEND. VI, XIV).
POINT III: DEFENDANT SHOULD BE RESENTENCED TO A PROBATIONARY TERM.
Our courts have recognized that the submission of lesser included offenses to the jury affords a defendant the opportunity to argue that he is guilty of a less serious offense than charged by the State. In State v. Saulnier, 63 N.J. 199 (1973) the Supreme Court stated:
The common law doctrine that a defendant may be found guilty of a lesser offense necessarily included in the greater offense charged in the indictment is well recognized in our State. It was originally designed to aid the prosecution so that it would not fail entirely where some element of the greater offense was not established. But it also redounded to the benefit of the defense since it enabled a finding of lesser consequence and precluded a later independent prosecution of the lesser offense as double jeopardy. [63 N.J. at 205 (emphasis added) (citations omitted)].
Similarly, this court observed in State v. Lopez, 160 N.J. Super. 30, 36 (App. Div. 1978) that a defendant is entitled to a charge of a lesser included offense in order to avoid "the coercive prejudice inherent in giving the jury the choice of all-or-nothing" See also Blair, "Constitutional Limitations on the Lesser Included Offenses Doctrine," 21 Am. Crim. L. Rev. 445, 462-475 (1984).
An offense will be considered a lesser included offense in several circumstances. One is where the proof required to establish a greater offense is also sufficient to establish every element of a lesser offense. State v. Zelichowski, 52 N.J. 377, 384 (1968); State v. Midgeley, 15 N.J. 574, 580-581 (1954); see also N.J.S.A. 2C:1-8d(1) Another is where two offenses are the same but a lesser degree of culpability is required to establish the lesser offense. See State v. Sloane, 217 N.J. Super. 417 (App. Div. 1987), certif. granted 108 N.J. 669 (1987); State v. Connell, 208 N.J. Super. 688, 694-695 (App. Div. 1986); see also N.J.S.A. 2C:1-8d(3)
We conclude that reckless driving is a lesser included offense of death by auto. Death by auto is proscribed by N.J.S.A. 2C:11-5a, which provides that:
Criminal homicide constitutes death by auto when it is caused by driving a vehicle recklessly.
N.J.S.A. 2C:2-2b(3) provides that a person acts "recklessly" when he
consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor's situation.
Reckless driving is proscribed by N.J.S.A. 39:4-96, which provides in pertinent part that:
A person who drives a vehicle on a highway heedlessly, in willful or wanton disregard of the rights or safety of others, in a manner so as to endanger, or be likely to endanger, a person or property, shall be guilty of reckless driving
Although the wording differs slightly, the definitions of reckless" contained in N.J.S.A. 2C:2-2b(3) and N.J.S.A. 39:4-96 are substantially the same. The only real difference between the two offenses is that a defendant's reckless driving must be shown to have caused the death of another to sustain a conviction for death by auto. Therefore, the proof required to establish death by auto is also sufficient to establish every element of reckless driving, which makes the latter offense a lesser included offense of the former. State v. Zelichowski, supra ; State v. Midgeley, supra ; see also Barritt v. State, 517 So. 2d 65 (Fla. App. 1987).
The conclusion that reckless driving is a lesser included offense of death by auto is supported by State v. Dively, 92 N.J. 573 (1982), which was decided under the law which predated enactment of the Code of Criminal Justice. The Court in Dively held that the disposition of motor vehicle charges, including reckless driving, in municipal court barred a subsequent prosecution in Superior Court for death by auto. The Court's holding rested on its view that reckless driving is a lesser included offense of death by auto:
N.J.S.A. 39:4-96 provides that a person who drives a vehicle on a highway heedlessly, in wilful or wanton disregard of the safety of others so as to endanger a person shall be guilty of reckless driving. N.J.S.A. 2A:113-9 [the pre-Code death by auto statute] states that any person who causes the death of another by driving a vehicle carelessly and heedlessly, in wilful or wanton disregard of the safety of others is guilty of a misdemeanor. The latter statute requires that death ensue, a requisite that is lacking in order to convict for reckless driving. Thus the lesser-included offense requires no proof beyond that which is required for conviction of the greater -- death by auto. . . . Every death by auto under N.J.S.A. 2A:113-9 necessarily includes a finding of reckless driving, and any prosecutor who has established reckless driving need prove only the resulting death in order to establish death by auto. [92 N.J. at 582-583].
Although the Court in Dively concluded that reckless driving is a lesser included offense of death by auto within the context of a double jeopardy claim, there is no basis for reaching a different conclusion in connection with a defendant's entitlement to a lesser included offense charge. See State v. Saulnier, supra.
We also conclude that careless driving is a lesser included offense of reckless driving. Careless driving is proscribed by N.J.S.A. 39:4-97, which provides that:
A person who drives a vehicle on a highway carelessly, or without due caution and circumspection, in a manner so as to endanger, or be likely to endanger, a person or property, shall be guilty of careless driving.
In our view, driving a vehicle carelessly, that is, "without due caution and circumspection," differs from driving recklessly, that is, "heedlessly, in wilful disregard of the rights or safety of others," only in that it involves a lesser degree of culpability. Consequently, careless driving is a lesser included offense of reckless driving, State v. Sloane, supra ; State v. Connell, supra, and both of these motor vehicle offenses are lesser included offenses of death by auto. See United States v. Pino, 606 F. 2d 908, 914-917 (10th Cir. 1979).
The State argues that reckless driving and careless driving are not lesser included offenses of death by auto because N.J.S.A. 2C:1-8d, which prescribes which offenses are lesser included offenses under the Code of Criminal Justice, does not apply to motor vehicle offenses. We agree that N.J.S.A. 2C:1-8d is not controlling, because the Code does not apply to Title 39 motor vehicle offenses. N.J.S.A. 2C:1-14k; see State v. Newman, 223 N.J. Super. 284, 288, n.2 (App. Div. 1988). However, N.J.S.A. 2C:1-8d is not the exclusive source of authority for submitting a lesser included offense to a jury. The lesser included offense doctrine is not legislative in origin but rather was well recognized at common law. State v. Saulnier, supra, 63 N.J. at 205. N.J.S.A 2C:1-8d was intended to codify, and in certain respects to expand, this common law doctrine as applied to offenses covered by the Code. See 1971 New Jersey Penal Code Commentary, Vol. II at 24-26. But the Code does not preclude treating offenses which fall outside the Code as lesser included offenses under the common law doctrine. Moreover, the Supreme Court has indicated in both State v. Dively, supra, and State v. DeLuca, 108 N.J. 98 108-111 (1987), cert. den. U.S. , 108 S. Ct. 331, 98 L. Ed. 2d 358 (1987) that fairness to the State and to those accused of death by auto as well as the efficient administration of justice require the coordinated processing of Code offenses and Title 39 motor vehicle offenses, even though the Code does not mandate joinder. Since there is no legislative prohibition against treating Title 39 offenses as lesser included offenses of death by auto, we conclude that such treatment is appropriate under the common law lesser included offenses doctrine.
We also conclude that the trial court's failure to submit the lesser included motor vehicle offenses to the jury requires reversal despite defense counsel's failure to object. Even if not requested, a trial court is obligated to charge a jury with respect to a lesser included offense if the appropriateness of that charge is "clearly indicated" by the evidence. State v. Grunow, 102 N.J., 133, 148 (1986); State v. Choice, 98 N.J. 295 (1985). The submission to the jury of the lesser included motor vehicle offenses was clearly indicated in this case. Indeed, the trial court seemed to recognize that the jury could properly find that the degree of defendant's culpability was only careless driving since it instructed the jury with respect to the elements of that offense. Nevertheless, the trial court failed to instruct the jury that it could find defendant guilty of only careless driving. Moreover, the jury was told that defendant had been charged in municipal court with reckless driving, but it was not given the opportunity to consider reckless driving as a lesser included offense of death by auto. This deprived defendant of the opportunity to have the jury consider whether he should be convicted of the lesser offenses of reckless or careless driving rather than death by auto.
We also find it necessary to comment upon following part of the prosecutor's summation:
I'm not asking you for sympathy for the Farrington family.
Look at this case clearly and fairly.
You didn't hear the story of his life and all the loss and whatever.
That is not here in this case.
That is not what we are here about.
We are here to decide what should be done about Mr. Muniz and the way he drove that vehicle, that truck, on November 7th of 1985.
Sure, the truck is registered to his brother-in-law's auto body place.
Maybe there is a civil suit filed.
What do you think they are going to get, a million dollars out of some auto body place in Long Branch?
Pennies--do you think it's worth anything or that's what the family wants? [Emphasis added].
The thrust of this comment was that decedent's family should be vindicated through a guilty verdict in the criminal trial because they would not receive a substantial recovery in their civil suit. Thus, the comment represented a manifestly inappropriate appeal to the jury to convict defendant out of sympathy for decedent's family. We admonish the prosecutor not to make any similar appeal to the jury at defendant's retrial.
Since the case must be retried and the outcome cannot be anticipated, we find it unnecessary to pass upon defendant's argument that he should have deceived a probationary rather than a custodial sentence.
Reversed and remanded for a new trial.
Before Judges Pressler, Muir, Jr. and Skillman