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State v. Kately

Decided: February 10, 1994.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DANIEL EDWARD KATELY, DEFENDANT-APPELLANT. STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, V. GEORGE KATELY, SR., DEFENDANT-APPELLANT



On appeal from the Superior Court of New Jersey, Law Division, Sussex County.

Michels, Kestin and Wefing. The opinion of the court was delivered by Michels, P.J.A.D. Wefing, J.s.c., (temporarily assigned) Concurring.

Michels

Following a joint jury trial, defendant Daniel Edward Kately was convicted of (1) death by auto, a crime of the third degree, in violation of N.J.S.A. 2C:11-5; (2) two counts of witness tampering, a crime of the third degree, in violation of N.J.S.A. 2C:28-5a, and (3) driving while under the influence of intoxicating liquor in violation of N.J.S.A. 39:4-50. Defendant George Kately, Sr. was convicted of one count of witness tampering, a crime of the third degree, in violation of N.J.S.A. 2C:28-5a.

The trial court sentenced Daniel Kately to thirty days in the Keogh Dwyer Correctional Facility (Correctional Facility), fined him $300, assessed a $30 Violent Crimes Compensation Board (VCCB) penalty and revoked his driving privileges for twelve months for his conviction for driving while under the influence of intoxicating liquor. In addition, for the conviction for death by

auto, the trial court sentenced Daniel Kately to three years probation conditioned upon his serving 270 days in the Correctional Facility without parole, which sentence was to be served consecutively to the thirty day sentence imposed for driving while under the influence of intoxicating liquor, assessed a $500 VCCB penalty and revoked his New Jersey driving privileges for twenty four months, which revocation was to run consecutively to his release from the Correctional Facility and consecutively to the twelve month revocation imposed for driving while under the influence of intoxicating liquor. Finally, the trial court merged Daniel Kately's witness tampering convictions and sentenced him to two years probation, which was to run consecutively to the probationary term imposed for his conviction for death by auto, ordered him to perform fifty days of community service, fined him $2500 and assessed a $50 VCCB penalty. The trial court sentenced George Kately to three years probation on the condition that he perform ninety days of community service, fined him $5000 and assessed a $50 VCCB penalty for his conviction for witness tampering. Both Daniel Kately and George Kately appealed and their motions to consolidate the appeals were granted.

Defendant Daniel Kately seeks a reversal of his convictions on the following grounds set forth in his letter brief:

I. THE ADMISSION OF TESTIMONY ABOUT DRINKING PARTIES IN A FIELD ACROSS THE STREET FROM THE KATELY HOME WAS ERROR.

II. THE COURT BELOW ERRED IN ADMITTING INTO EVIDENCE THE BLOOD TEST RESULTS.

Defendant George Kately seeks a reversal of his conviction on the following grounds set forth in his letter brief:

I. THE ADMISSION OF TESTIMONY ABOUT DRINKING PARTIES IN A FIELD ACROSS THE STREET FROM THE KATELY HOME WAS ERROR.

II. THE EVIDENCE SUBMITTED IN THIS CASE AS TO HABIT WAS PREJUDICIAL TO THE DEFENDANT, GEORGE KATELY, OVER AND ABOVE A RULE 4 ANALYSIS.

We have carefully considered these contentions and all of the supporting arguments advanced by each defendant and find that they are clearly without merit. R. 2:11-3(e)(2).

Although we are satisfied that there is no basis upon which to overturn these convictions, we deem it appropriate to comment further on defendant Daniel Kately's claim that the trial court erred in admitting testimony describing his history of drinking in the field across the street from his home. Daniel Kately essentially argues that the challenged evidence did not qualify as "habit evidence" and, even if it did, it should have been excluded under Evid.R. 4 (now N.J.R.E. 403)*fn1 because its probative value was minimal in light of the ample evidence of his intoxication on the evening of the fatal accident. We disagree for the following reasons.

At an Evid.R. 8 (now N.J.R.E. 104(a)) hearing to determine the admissibility of testimony concerning Daniel Kately's drinking habits, the State's proofs demonstrated that Daniel Kately, Andrew Sickel, Marcy Simmons Burke and Donna Demerest often met in the evening to drink. Sickel testified that he went to Daniel's home every night after work and that after dinner they would go to the field on the Kately farm, which was located near Daniel's home. According to Sickel, they had been drinking beer there on a regular basis every night for about one year prior to the accident. Sickel further testified that he and Daniel each would consume anywhere from one to two six-packs of beer at these gatherings. These parties took place even in cold weather. Sickel estimated that Daniel got drunk there three or four times per week. Demerest testified that starting in September 1986 she also frequented the field almost every night to drink. She testified that she saw both Sickel and Daniel get drunk, but could not recall how often. Burke testified that the group would get together either at Daniel's house or in the field. She began frequenting the parties every night in the Spring of 1987. Burke

also testified that they usually drank beer and that she saw Daniel drunk approximately five nights per week.

At the Conclusion of the hearing, the trial court held that the testimony regarding Daniel Kately's habit of intemperance prior to the accident was admissible. The trial court reasoned that the habit testimony was "probative of the issue of intoxication insofar as it relate[d] to the issue of reckless behavior as being an element of the offense of death by auto." The trial court further found that the probative value of the evidence substantially outweighed any prejudice. The court explained that this evidence was admissible as a response to defendant's attempt to rebut an inference of recklessness by his asserting that the accident may have been caused by swerving to avoid a deer in the road.

A. Testimony Regarding Daniel Kately's Nightly Drinking Constituted Habit Evidence.

A prosecutor may not introduce evidence of a character trait of the defendant unless the defendant first offers evidence of good character. Evid.R. 47 (now N.J.R.E. 404(a)(1) and N.J.R.E. 405(a)). Evid.R. 49 (now N.J.R.E. 406(a)) provided, however, that "[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." The comment to Evid.R. 49 (now N.J.R.E. 406(a)) explained the difference between habit evidence and evidence of general character traits and the reasons for their admissibility:

The relevance of habitual behavior to an understanding of a man's conduct on a specified occasion is substantially greater than the relevance of his general character traits for care or skill. Thus, evidence of habitual careful behavior is admissible to prove that a person acted carefully on a particular instance, while evidence of a general character trait for carefulness is not. See Falknor, "Extrinsic Policies Affecting Admissibility," 10 Rutgers L.Rev. 574, 589-590 (1956). McCormick, Evidence (1972), sec. 195, at 462-463. [Biunno, Current N.J. Rules of Evidence, comment 1 on Evid.R. 49 (1992)].

Professor McCormick further explained this difference:

Although the courts frown on evidence of a person's traits of character when introduced to prove how he acted on a given occasion, they are more receptive to

evidence of his habits or of the customary behavior of organizations. To understand this difference, one must appreciate the distinction between habit and character. 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 handing 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 ...


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