On appeal from Superior Court of New Jersey, Law Division, Monmouth County.
King, Ashbey and Skillman. The opinion of the court was delivered by Skillman, J.A.D.
The significant issue presented by this appeal is whether evidence that a defendant regularly became intoxicated every weekend at a particular bar is admissible as evidence of a habit to prove that defendant was intoxicated at the time of the automobile collision which resulted in his conviction for aggravated manslaughter and death by auto. We conclude that such evidence was properly admitted under the circumstances of this case. We also reject defendant's other arguments relating to the conduct of his trial. Therefore, we affirm the judgment of conviction. However, we vacate defendant's sentence and remand for resentencing.
Defendant was convicted by a jury of aggravated manslaughter, in violation of N.J.S.A. 2C:11-4a, and death by auto, in violation of N.J.S.A. 2C:11-5. The trial judge merged the conviction for death by auto into the conviction for aggravated manslaughter and sentenced defendant to a 20 year term of imprisonment with 10 years of parole ineligibility.
Defendant's conviction was based on an automobile collision which occurred at the intersection of Route 537 and Paint Island Spring Road in Freehold Township slightly past midnight on November 25, 1984. Waiting for two other cars traveling in the opposite direction to pass before he made a left turn, Daleston Cote stopped his car at the intersection. While he was waiting, Cote was struck from behind by another car
traveling at a high rate of speed. The impact from the collision propelled Cote's vehicle across the highway and caused a second collision with a car traveling in the opposite direction. Keith MacCormack, a passenger in Cote's car, was thrown from the car after the second collision and killed. The car which struck Cote's vehicle left the scene of the accident and no one observed its license plate number. However, the police determined from the debris at the scene that the hit-and-run vehicle was a maroon 1979 Oldsmobile.
A year and a half later, a police officer who had been involved in investigating this hit-and-run accident observed a maroon 1979 Oldsmobile with evident front end repairs. Further investigation revealed that defendant owned this car on the day of the accident and sold it four days later. Forensic analysis of the damaged front end confirmed that this was the car involved in the accident.
The police then interviewed defendant, who initially denied, but later admitted, his prior ownership of the car. Defendant denied being involved in an accident on November 25, 1984, but admitted that he was the only person who drove the car during the period of his ownership. Defendant also admitted being at Rova Farms, a Russian social club, on the evening of November 24, 1985. Rova Farms is located approximately six miles from the site of the accident.
The evidence that defendant was the driver of the hit-and-run vehicle which caused the accident resulting in Keith MacCormack's death was overwhelming. Indeed, this point was virtually conceded in defense counsel's summation. Therefore, the only real issues at trial were whether defendant operated his vehicle recklessly by consciously disregarding a substantial and unjustifiable risk that injury or death would result, N.J.S.A. 2C:2-2b(3), and thus was guilty of death by auto, N.J.S.A. 2C:11-5, or recklessly "under circumstances manifesting extreme
indifference to human life" and thus was guilty of aggravated manslaughter, N.J.S.A. 2C:11-4a.
Evidence of defendant's intoxication at the time of the accident was relevant to these issues. Our courts have concluded that a jury may infer that an individual who drives while intoxicated is consciously disregarding the risk of an accident and acting with extreme indifference to human life. State v. LaBrutto, 114 N.J. 187, 204 (1989); State v. Bogus, 223 N.J. Super. 409, 419 (App.Div.1988), certif. den. 111 N.J. 567 (1988). However, the prosecutor lacked direct evidence of defendant's intoxication, because he left the scene of the accident. Therefore, to prove that defendant was intoxicated at the time of the accident, the prosecutor offered testimony by Bernie D'Zurella, the bartender at Rova Farms from 1981 to the end of 1985, that defendant came to Rova Farms just about every weekend until the end of November 1984 and that he always got drunk shortly after arriving. D'Zurella also said that defendant would regularly become loud and obnoxious and that he would be forced to escort him outside the bar.
The trial judge concluded that D'Zurella's testimony that defendant almost always became intoxicated at Rova Farm on weekends was admissible under Evidence Rules 49 and 50 to show a habit. The judge stated:
[W]e're talking about [a] habit of going there on weekends, a habit of drinking on weekends while there and a habit of being drunk on weekends.
This is a particular set of circumstances to which the bartender testified to. It's not a general trait such as would classify it as character type of evidence. . . . It's a particular setting that he was put into, that is the Rova Farms establishment. It's a particular time. This was a weekend. . . . And certainly the witness was able to say that every time he was drunk. . . . I'm satisfied it does constitute habit.
The trial judge also found that the "probative value" of the evidence that defendant regularly became intoxicated at Rova Farms on weekends was not "substantially outweighed by the risk that it will create substantial danger of undue prejudice."
Defendant argues that D'Zurella's testimony as to defendant's regular weekend intoxication at Rova Farms was inadmissible
evidence of a character trait. He relies upon the rule which prohibits the prosecutor from introducing evidence of a character trait of the defendant unless the defendant offers evidence of good character. Evid.R. 47. However, "[e]vidence of habit or custom whether corroborated or not is admissible to prove conduct on a specified occasion in conformity with the habit or custom." Evid.R. 49. In addition, "[e]vidence of specific instances of conduct is admissible to prove habit or custom if the evidence is of a sufficient number of such instances to warrant a finding of such habit or custom, Evid.R. 50. Therefore, the admissibility of D'Zurella's testimony regarding defendant regularly becoming intoxicated at Rova Farms on weekends turns on whether that conduct constitutes a character trait or a habit.
Professor McCormick aptly explains the difficulty of distinguishing between character and habit evidence:
The two are easily confused. People sometimes speak of a habit for care, a habit for promptness, or a habit of forgetfulness. They may say that an individual has a bad habit of stealing or lying. Evidence of these "habits" would be identical to the kind of evidence that is the target of the general rule against character evidence. Character is a generalized description of a person's disposition, or of the disposition in respect to a general trait, such as honesty, temperance or peacefulness. Habit, in the present context, is more specific. It denotes one's regular response to a repeated situation. If we speak of a character for care, we think of the person's tendency to act prudently in all the varying situations of life -- in business, at home, in handling automobiles and in walking across the street. A habit, on the other hand, is the person's regular practice of responding to a particular kind of situation with a specific type of conduct. Thus, a person may be in the habit of bounding down a certain stairway two or three steps at a time, of patronizing a particular pub after each day's work, or of driving his automobile without using a seatbelt. The doing of the habitual act may become semi-automatic, as with a driver who invariably signals before changing lanes.
Evidence of habits that come within this definition has greater probative value than does evidence of general traits of character. Furthermore, the potential for prejudice is substantially less. By and large, the detailed patterns of situation-specific behavior that constitute habits are unlikely to provoke such sympathy or antipathy as would distort the process of evaluating the evidence. [ McCormick, Evidence, § 195 at 574-575 (3d ed. 1984) (footnotes omitted)].
See also 1A Wigmore, Evidence, § 92 at 1609 (Tillers rev. ...