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State v. Labrutto

Decided: February 16, 1989.

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT AND CROSS-RESPONDENT,
v.
JACK LABRUTTO, DEFENDANT-RESPONDENT AND CROSS-APPELLANT



On certification to the Superior Court, Appellate Division.

For reversal and reinstatement -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. For affirmance -- None. The opinion of the Court was delivered by Garibaldi, J.

Garibaldi

Police officers are usually the first witnesses to arrive at the scene of an automobile accident. Before physical evidence at the scene is removed, distorted, or tampered with, they have the unique opportunity to observe it. The primary issue in this appeal is whether an investigating state trooper, not qualified as an expert, may testify about the vehicles' point of impact based on his own observations. We hold that the state trooper's testimony is admissible under Evid.R. 56(1).

Secondary issues in this appeal raised in defendant's cross-petition are whether the trial court adequately charged the jury, improperly permitted an expert to testify in rebuttal, and committed errors in denying defendant's motions for a mistrial, acquittal, and a new trial because of the above and other perceived errors.

I

In the early morning of December 1, 1984, New Jersey State Troopers Eric Mutter and Thomas Mikoljczyk were dispatched to the scene of a motor vehicle accident on the Garden State Parkway, arriving a few minutes after 4:00 o'clock. The Parkway near the accident scene consists of four straight clearly marked lanes in either direction, each with shoulders consisting of ten feet of paved macadam followed by a grassy dirt area or berm. There are no street lights in the area. On that morning the weather was clear and cold and the road was dry.

On arrival at the scene of the accident, Trooper Mutter observed two vehicles off the side of the road. The first of these, a Lincoln, was parked facing northward on the berm and dirt portion of the roadway shoulder. The second, a Chevrolet Camaro, was located further up on the embankment facing

southeast. Trooper Mutter first examined the Camaro, finding it abandoned and extensively damaged in the rear. He then approached the Lincoln, which was also extensively damaged in its right front. He observed a man, later identified as defendant, Jack LaBrutto, standing outside the rear of the car. Defendant had blood on his face. In the front seat of the Lincoln, Trooper Mutter observed a second man, later identified as James Calavano, who was apparently unconscious.

Trooper Mutter asked defendant what had happened. Defendant replied, "I looked up and the car was there." The trooper later testified that he detected an odor of alcohol on defendant's breath, that defendant's eyes were bloodshot and watery, and that he staggered when walking and swayed while standing. When told that the unconscious passenger would have to be taken to a hospital, defendant reportedly became extremely agitated and began yelling. The trooper then continued his investigation. Soon after, he found the driver of the Camaro, later identified as Michael R. Pignatelli, underneath the Lincoln, face down with his head near the left front wheels and his feet near the right front wheels. Mr. Pignatelli, an off-duty police officer for the Parsippany-Troy Hills Police Department, was dead.

After securing the area, Trooper Mutter placed defendant in a police car. Later, defendant was sent to an area hospital. After he had been treated for cuts on his head and other minor injuries, blood was taken from him at 5:26 a.m. Meanwhile, at the request of Trooper Mutter, a police photographer took eight photographs of the accident scene. Trooper Mutter took notes of what he observed at the accident scene and later filed a police report. He also prepared a diagram of the accident scene based on his own observations.

On December 3, 1984, defendant voluntarily gave a written statement to the State Police about the accident. According to his recounting of the events, after he and Mr. Calavano had consumed four vodka and tonics, they got into his car. He then

drove onto the Parkway. Later, while proceeding at approximately fifty miles per hour on the extreme right lane, he observed a car parked in the shoulder and sticking out into the right lane immediately after an underpass. Defendant stated that as he stuck his right arm out to protect Calavano, who was asleep, his car collided with the other vehicle. He denied having left the paved roadway prior to the accident.

Defendant was charged with violating the death-by-auto statute, N.J.S.A. 2C:11-5, by causing another's death due to his reckless driving. At trial the first witness to testify was Trooper Mutter, a seven-year veteran of the New Jersey State Police and a general-duty road trooper. His duties consisted primarily of investigating motor vehicle-related incidents on the Parkway. Prior to the time of the accident in question, he had investigated approximately 400 motor vehicle collisions. In addition, he had completed a two-week course in accident investigations at the State Police Academy.

Trooper Mutter drew a diagram of the scene of the accident in front of the jury based on his earlier diagram. He testified that he observed approximately ninety feet of tire tracks on the grassy berm area alongside the roadway leading to a point at which there were scuff marks on the grass and widespread debris. He also noticed two sets of tire marks leading away from this point, one set leading eighty-four feet to the Camaro, the other leading fifty-four feet to the Lincoln. Over the objection of defendant, Trooper Mutter stated his view that the point of impact of the two cars was at the end of the ninety-foot tire track. His opinion was based on personal observations of the tire tracks, scuff marks, debris, the position of the two vehicles, and the nature of the vehicles' damage. The trial court permitted this testimony, stating that it would allow "any opinions which are supported by lay perceptions of physical evidence at the scene."

The State also presented witnesses who demonstrated that on the night of the accident, defendant had a blood-alcohol level

of .120, well above the .100 level required for finding that defendant was driving while intoxicated. See N.J.S.A. 39:4-50(a). Dr. Charles Tindall, Jr., qualified as a forensic expert in chemistry, testified that this was a high enough blood-alcohol level to affect one's driving ability. He also testified that defendant's blood-alcohol level indicated that defendant had imbibed substantially more on the night of the fatal accident than he claimed. In addition, Dr. Kong L. Tan, a Middlesex County Medical Examiner, qualified as an expert in the field of pathology, testified that decedent's injuries, the grass stains on his clothing, and the grass found in his mouth were consistent with someone who died after being hit by a car while standing on grass. Under cross-examination Dr. Tan stated that his findings did not preclude the possibility that decedent had been struck while standing at the end of the grass.

In his defense, defendant produced Dr. Mark Marpet, who qualified as an expert in the field of forensic-engineering science. Dr. Marpet provided a reconstruction of the accident based on a site inspection six months after the crash, photographs, police reports, and defendant's version of the facts. He disputed Trooper Mutter's claim that the grass shoulders contained debris, tire tracks, and scuff marks following the collision, noting that none of this could be observed in photographs taken at the scene. Dr. Marpet also testified based on his own observations that when driving down the Parkway the accident scene appears shortly after an underpass, supporting defendant's version of the sudden appearance of decedent's car. In addition, he testified that a reflector post located off the side of the road near the accident scene, which the State claimed had been driven over by defendant, was not damaged enough for that to have occurred. Hence, Dr. Marpet concluded that the physical evidence supported defendant's version of the facts, i.e., that defendant hit decedent's car only because it stuck out into the roadway, and that defendant's car did not go onto the road shoulder prior to the collision.

In response to Marpet's testimony, the State provided its own expert rebuttal witness, Investigator Rocco Mazza of the Middlesex Prosecutor's Office, who was trained in automobile-collision reconstruction. Defendant objected to permitting this testimony because although he had been advised that Mazza would be used to rebut Marpet's testimony, the State had not provided a report for Mazza or a statement of the facts and opinions on which Mazza was expected to testify, as required by Rule 3:13-3(a). The trial court, however, noting the limited rebuttal nature of Mazza's testimony, permitted him to testify so long as he limited his testimony to the parameters of Marpet's testimony, finding that this could not surprise defendant and would have no prejudicial effect.

Investigator Mazza criticized Dr. Marpet's testimony. He noted that it would be "impossible" to reconstruct an accident based solely on photographs and a visit to the scene six months after the accident as Marpet claimed to have done. He disputed Marpet's analysis of the damaged reflector post, stating that damage of the kind done could indeed result from being driven over rather than just being hit. He also indicated that it was not unusual for photographs not to show signs of debris and tire marks in grass. Investigator Mazza stressed that tire marks and ground scuff marks were crucial to a reconstruction, and that he never would conduct a reconstruction based solely on photographs and debris. In addition, he noted that the grass stains and tears on decedent's clothes, as well as the grass found in decedent's mouth, were consistent with the view that decedent had been dragged through the grass and cast doubt on defendant's position that decedent was hit on the road or not dragged on the grass for some distance.

Investigator Mazza said Trooper Mutter's analysis of the accident scene was fully supported by the physical evidence. In response to cross-examination he admitted that he relied on Trooper Mutter not to have lied about the tire tracks, but stated that the condition of decedent's clothing and the nature of

damage to the cars supported Mutter's accident ...


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