On appeal from the Superior Court, Law Division, Cumberland County.
Judges O'Brien, Scalera and Keefe. The opinion of the court was delivered by O'Brien, J.A.D.
Defendant appeals from his conviction of three counts of first degree aggravated manslaughter (N.J.S.A. 2C:11-4a) and two counts of fourth degree assault by auto (N.J.S.A. 2C:12-1c). Defendant was sentenced to three consecutive 20-year terms with a 10-year period of parole ineligibility on each aggravated manslaughter conviction, and two 18-month concurrent terms on the two assault by auto convictions.*fn1 On each aggravated manslaughter conviction the judge imposed a $2,500 penalty payable to the Violent Crimes Compensation Board, and $30 penalties on each assault conviction. Thus, defendant's aggregate sentence is 60 years with a 30-year period of parole ineligibility and $7,560 in VCCB penalties. We affirm in part and reverse in part.
On March 5, 1988, defendant, his wife and two friends, Al Stavoli and Maurice Davis, had dinner together and began
drinking at the Pindale house in Vineland. Eventually, they went out for a ride in a pick-up truck defendant had borrowed from the automobile dealership where he worked. When the truck malfunctioned they returned to the house and got into defendant's new Z-28 Camaro which he had purchased four days earlier. The four were drinking beer from a six pack as they were riding. The vehicle had a T-top, the panels of which defendant removed during the course of the ride. At one point, one of the passengers stood up through one of the openings. When a police officer observed this he began to pursue them. During the pursuit, defendant threw the remaining beer out the window and increased his speed in an effort to elude the police officer.
A high-speed chase ensued. Although the vehicle stopped at the first stop sign, it went through several subsequent stop signs and red lights in which speeds escalated to 95 or 100 miles per hour. At one point, the vehicle's headlights were turned off. A witness observed the Z-28 traveling at approximately 95 to 100 miles an hour on Chestnut Street with its lights off, go through a red light at the intersection of Delsea Drive, and collide with a pick-up truck headed south on Delsea Drive.
As a result of that collision, the driver of the pick-up truck and his passenger were both killed. Al Stavoli suffered injuries from which he died a few days later. Wanda Pindale suffered severe physical injuries, including a fractured pelvis, multiple skull fractures, broken nose, broken jaw, and loss of her right eye. Maurice Davis also suffered severe injuries requiring a rod in his femur and a metal plate in his head. He still suffers from memory loss and difficulty in speech. Defendant sustained severe chest injuries from which he has substantially recovered.
At trial, a factual issue was projected as to who was driving defendant's car at the time of the fatal collision. Wanda testified that defendant was driving, she was in the front passenger seat, Stavoli was seated behind defendant, and Davis
behind her. Wanda said it was she who had stood up through the open T-top, which apparently initiated the high-speed chase resulting in tragic consequences. Defendant did not testify at the trial, but through his witnesses attempted to show that Wanda was driving the vehicle at the time of the collision. The jury resolved that conflict by their verdict, concluding that defendant was the driver.
On this appeal, defendant makes the following legal arguments:
POINT I DEFENDANT'S FOURTEENTH AMENDMENT DUE PROCESS RIGHTS WERE SERIOUSLY ABRIDGED WHEN THE JUDGE ALLOWED THE STATE REPEATEDLY TO DEMONSTRATE AND ARGUE TO THE JURY DEFENDANT'S FAILURE EITHER TO VISIT HIS INJURED FRIENDS IN THE HOSPITAL OR INQUIRE ABOUT THEIR RESPECTIVE CONDITIONS -- AN ABSOLUTELY IRRELEVANT, BUT HIGHLY INFLAMMATORY TOPIC; UNDER EVID. R. 7(f) OR, ALTERNATIVELY EVID. R 4, THIS EVIDENCE SHOULD HAVE BEEN EXCLUDED.
POINT II THE PROSECUTOR'S SUMMATION FAR EXCEEDED THE BOUNDS OF PROPRIETY IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS AND EVID. R. 47. (Not Raised Below)
POINT III CRITICAL PORTIONS OF THE REBUTTAL TESTIMONY OF DETECTIVE MICHAEL NEWTON, PATRICIA POMPPER AND TIFFANY HINCKLEY WERE PURE HEARSAY, INADMISSIBLE UNDER EVID. R. 63, AND WERE SO DEVASTATING TO THE DEFENSE CASE THAT THEIR ERRONEOUS ADMISSION WARRANTS REVERSAL OF DEFENDANT'S CONVICTIONS. (Not Raised Below)
POINT IV THE SENTENCE IMPOSED ON DEFENDANT IS MANIFESTLY EXCESSIVE.
Evidence that the vehicle was operated recklessly as defined in N.J.S.A. 2C:2-2b(3) and that defendant was the driver was overwhelming. Thus, the evidence clearly supported the convictions of fourth degree assault by auto under N.J.S.A. 2C:12-1c and would support convictions of three counts of death by auto (N.J.S.A. 2C:11-5) as charged in the third, fourth and fifth counts of the indictment, which had been dismissed as lesser included offenses. Had defendant had been convicted of death by auto and not aggravated manslaughter, we would find the arguments advanced by him in Points I and II harmless error.
However, because defendant was convicted of aggravated manslaughter, we address those issues.
"Criminal homicide constitutes aggravated manslaughter when the actor recklessly causes death under circumstances manifesting extreme indifference to human life." N.J.S.A. 2C:11-4. Thus, the element which elevates third degree death by auto to first degree aggravated manslaughter is that the offense was committed "under circumstances manifesting extreme indifference to human life."*fn2 Therefore, the existence of evidence of that fact looms up as an extremely important element. It elevates the offense from third degree, with a presumption of nonimprisonment for a person without a criminal record, N.J.S.A. 2C:44-1e (unless he was operating the vehicle while under the influence of intoxicating liquor, N.J.S.A. 2C:11-5b),*fn3 to a first degree crime requiring not only a presumption of imprisonment under N.J.S.A. 2C:44-1d, but an increase in the ordinary maximum term of imprisonment from 20 years for a crime of the first degree, N.J.S.A. 2C:43-6a(1), to 30 years. N.J.S.A. 2C:11-4c. Yet, this significant elevating
phrase is not defined in the New Jersey Code of Criminal Justice (Code).
As initially enacted by the Laws of 1978, c. 95, criminal homicide was divided into murder, manslaughter or death by auto. The provision for manslaughter simply provided:
a. Criminal homicide constitutes manslaughter when:
(1) It is committed recklessly; or
(2) A homicide which would otherwise be murder under section 2C:11-3 is committed in the heat of passion resulting from a reasonable provocation.
b. Manslaughter is a crime of the second degree.*fn4
N.J.S.A. 2C:11-4a(1) was identical to the language of the Model Penal Code, § 210.3(1)(a).
In § 210.2 of the Model Penal Code, murder is defined as follows:
(1) Except as provided in Section 210.3(1)(b), criminal homicide constitutes murder when:
(a) it is committed purposely or knowingly; or
(b) it is committed recklessly under circumstances manifesting extreme indifference to the value of human life. Such recklessness and indifference are presumed if the actor is engaged or is an accomplice in the commission of, or an attempt to commit, or flight after committing or attempting to commit robbery, rape or deviate sexual intercourse by force or threat of force, arson, burglary, kidnapping or felonious escape.
(2) Murder is a felony of the first degree [but a person convicted of murder may be sentenced to death, as ...