On appeal from the Superior Court of New Jersey, Law Division, Essex County.
Judges Deighan, Baime and A. M. Stein.
Defendant was attempting to elude a fleeing police car when his speeding automobile struck a pedestrian who died shortly thereafter in the hospital. Defendant and his passenger fled the scene on foot. The police found cocaine and a switchblade knife in the abandoned car. Defendant was arrested several hours later.
The jury found defendant guilty of first degree aggravated manslaughter, N.J.S.A. 2C:11-4a, and unlawful possession of cocaine, N.J.S.A. 2C:35-10a(1). The trial judge sentenced defendant to a twenty-year prison term for the aggravated manslaughter and a concurrent four-year term for cocaine possession. He also imposed a $50 lab fee, $1,000 DEDR penalty, $60 VCCB penalty and suspended defendant's driving privileges for six months.
We reverse the count for aggravated manslaughter because the trial judge improperly admitted inflammatory photographs of the victim's body into evidence and because of the prosecutor's improper questions on cross-examination of defendant and his comments on summation. We affirm the cocaine conviction because there was overwhelming evidence of defendant's guilt of that offense untainted by these trial errors, and because defendant admitted his guilt of this offense when he testified.
There was abundant evidence that defendant recklessly operated his vehicle. He struck the pedestrian crossing the street from right to left, when he drove to the left of an automobile waiting at a red light. His speed on this twenty-five mile per hour street was variously estimated at forty miles per hour (by defendant at time of impact), between fifty and fifty-five miles per hour (by defendant before impact and by the officers in the pursuing police car) and ninety to one hundred miles per hour (by the occupant of the vehicle which defendant passed on the left immediately before he struck the pedestrian).
Upon collision, the victim's body flew into the air with considerable force.
When defendant testified, he admitted he was drinking earlier and was driving recklessly at the time of impact.
The essential question for the jury to determine was whether defendant's driving recklessly caused the death of the pedestrian (third degree death by auto, N.J.S.A. 2C:11-5) or whether his driving recklessly caused the pedestrian's death under circumstances manifesting extreme indifference to human life (first degree manslaughter, N.J.S.A. 2C:11-4a). The jury's opportunity to objectively and dispassionately evaluate whether defendant was guilty of the lesser or the greater offense was tainted by the admission of prejudicial photographs and the highly improper conduct of the prosecutor.
Five of the eight offered pre-autopsy photographs were admitted into evidence. They are in color. They are gruesome. Three are particularly grisly. One depicts the shaved crown on the victim's skull, laying bare an ugly laceration on the top of his head. Another depicts the decedent's bloody right leg. The third photo is a full-front view of decedent's swollen, black and blue face, showing his mouth pried open with medical instruments. The prosecutor argued that the photographs should be admitted:
To demonstrate the nature of the injuries sustained by the victim and also corroborate, in part, the high rate of speed when the impact occurred and the legs of the victim were virtually severed due to the impact from the automobile. And the medical examiner, in order to adequately explain to the jury the nature of injuries, must be able to express these quite candidly. [emphasis added].
In other words, the photographs were offered to inflame the jury. We see no other purpose for their admission. They were of little, if any, relevance to show one of the purposes proposed by the prosecutor, the speed of defendant's vehicle at the time of impact. In the absence of any foundation testimony, it is difficult to perceive how pictures of a mutilated corpse can be proof that defendant's vehicle was traveling at twenty, thirty, fifty or ...