Before Judges Petrella, D'Annunzio and
The opinion of the court was delivered by: Collester, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 4, 1999 - Decided July 2, 1999
On appeal from Superior Court of New Jersey, Law Division, Atlantic County.
On April 26, 1995, an Atlantic County Grand Jury returned Indictment No. 95-04-0951-B, charging defendant Bobbie Choinacki with first degree aggravated manslaughter, contrary to N.J.S.A. 2C:11-4(1) (count one), and second degree reckless manslaughter, in violation of N.J.S.A. 2C:11-4(b) (count two). The indictment also charged co- defendant, Darrin Cobb, with the same counts as well as charges of witness tampering, tampering with physical evidence and two counts of hindering apprehension.
Tried separately to a jury, defendant was found not guilty of aggravated manslaughter but convicted of reckless manslaughter. The trial judge also adjudicated her guilty of driving under the influence of alcohol pursuant to N.J.S.A. 29:4-50 and reckless driving under N.J.S.A. 39:4-96. The sentencing judge merged the reckless driving offense into the reckless manslaughter conviction and imposed a seven year prison term in addition to the various mandatory fines and penalties under both the indictable and motor vehicle convictions. Defendant's motion for a new trial was denied.
The testimony at trial adduced the following factual setting. During the evening hours on Sunday, September 25, 1994, Howard Solomon, Kevin Standing and twenty-seven year old Betsy Madera were among the many who attended a networking reception, the opening event of the annual two-day ASA Legal Systems Users Conference, at the Seaview Marriott in Atlantic City. At approximately 9:30 p.m., the three decided to return to their own hotel, a nearby Days Inn. Due to her unfamiliarity with the area, Madera decided to follow Solomon and Standing, who were traveling together in Solomon's car.
As the two cars made their way south on Route 9, a two-lane road, Solomon was careful to keep his speed down to 40 m.p.h. so that he would not lose sight of Madera in her red Toyota. The road began to curve and, as Solomon rounded the bend, both he and Standing exclaimed, "Holy shit!" as they watched in sudden fear as two cars came barreling towards them in the opposite lane at a high rate of speed. Standing estimated that the cars were no more than one or two car lengths apart and that they were traveling in excess of seventy miles per hour. He believed that they might have been racing. As the two went by, both Solomon and Standing saw the lead car begin to fishtail and it appeared to them that the driver was losing control and swerving towards their lane. Notably, neither of the two men saw any contact between the two vehicles. Moments later, just after the two cars passed out of sight, Solomon and Standing heard a crash and they immediately pulled over.
Standing ran to the first car at the accident site, which he recognized as Madera's red Toyota, while Solomon dialed 911 on his car phone. Standing approached Madera, shook her and checked for a pulse. Finding none, and noting that Madera's eyes were fixed, Standing concluded that she was dead.
Patrolman Troy Midgette of the Galloway Township Police Department responded to the scene after receiving a call at 9:59 p.m. regarding a motor vehicle accident. He observed two cars, one a red Toyota and the other a blue Mustang GT, off to the side of southbound Route 9. He proceeded first to the red Toyota and determined that the driver was dead. He then headed over to the Mustang which he noted had sustained a great deal of front-end damage.
Emergency workers had already begun treating the driver of the Mustang, later identified as twenty-one year old Bobbie Choinacki. Midgette approached and asked defendant what had happened. According to Patrolman Midgette, defendant responded that she did not know what had happened, but that she "must have fallen asleep." As defendant spoke, Midgette detected an odor of alcohol on her breath. He noted that, although obviously injured, defendant appeared to be without pain and indifferent to her situation.
Patrolman Tom Davey, also of the Galloway Township Police Department, arrived at the scene shortly after Midgette. He approached the Mustang and asked defendant what had happened. According to Davey, defendant responded by asking him about the condition of her car and about some officers she knew. Defendant became upset and began to exhibit signs of pain and Davey discontinued his questioning after only a minute or two.
Defendant was transported to the Atlantic County Medical Center. Davey and another officer made their way to the hospital to retrieve a blood sample from defendant for testing purposes and to interview her a second time. Davey, aware that witnesses described racing-type activity, was eager to learn if defendant knew the other driver. However, Davey was unable to get immediate access to defendant because she was being worked on by medical personnel. He placed a request for a blood sample which was eventually drawn at 11:43 p.m.
Defendant was treated by Dr. Joel Bayer. He diagnosed a hematoma on her forehead, broken tooth, compound fracture of her left ankle, concussion and right ankle fracture. At 10:50 p.m., Dr. Bayer found defendant oriented and alert, with clear speech.
When Dr. Bayer permitted access to defendant, Davey insisted on being allowed to speak to her ahead of her family. During the subsequent ten-minute interview with defendant, defendant told Davey that after completing her 12:00 to 8:00 p.m. shift at the Trump Plaza Casino, she stopped at a local restaurant/bar called Sabatini's. She said that sometime later a friend named Terry Braun gave her a ride to her car and she headed home. After she drove on Route 9, a Mustang began following her closely. She refused to let him pass because she was in a hurry to get home so that she could use the bathroom. Defendant stated that she was traveling at approximately 50 to 55 m.p.h. and acknowledged that she and the other driver, whom she said she did not know, passed a Bronco. Defendant stated that she did not remember the collision, noting that she had had only three hours of sleep the night before and that she might have fallen asleep.
Davey testified that throughout this interview defendant was crying and appeared to be in pain, but she never said that she did not understand his questions. He noted that she asked him again about certain officers she knew and about the condition of her car. He did not tell her that the accident had involved another car and resulted in a fatality.
One of defendant's friends, Lisa Klein, also spoke with defendant while she was in the emergency room after the accident. According to Klein, both she and defendant were crying at the time, but she was sure that defendant knew who she was. Klein recalled defendant telling her that the other driver had been "fuckin' with" her. Shortly thereafter defendant was taken away for surgery to clean and realign her fractures and also for the insertion of pins and screws to keep the bones in place.
At 10:00 a.m. on Tuesday, September 27, 1994, Sergeant William Taggart of the Atlantic County Prosecutor's Office, stopped by the hospital and obtained permission to speak with defendant. He was cautioned, however, by medical personnel not to mention the victim's death. Immediately after he introduced himself to defendant, who was awake, she asked about one of his fellow officers. In response to Taggart's questions defendant denied that she had taken any drugs other than a Benadryl prior to the accident, and she claimed that she had only one beer and one shot while at Sabatini's. She denied knowing the driver of the other car, which she recalled as being dark in color.
When Taggart asked defendant how fast she was traveling prior to the accident, she did not immediately answer. Instead, after a ten- second pause, defendant asked Taggart whether there were any witnesses. When Taggart informed her that there were witnesses, defendant began to cry and stated that her car meant everything to her and that she wanted to die. Because defendant's condition had deteriorated during the interview and she appeared to be in pain, Taggart ended the interview. He testified that defendant did not seem to be under the influence of any drugs during the interview, although he assumed that she was taking medication. He said that defendant had no trouble understanding his questions, and that he had no trouble understanding her responses. In his estimation, defendant appeared to be talking freely.
Defendant underwent a second surgery on September 28, 1994. The following day she was moved to a regular room. Lisa Klein again visited defendant, who appeared "out of it," but well enough to ask Klein if she had seen her car and if it was totaled. Klein responded that she had not seen the car and did not know if it was totaled. Defendant then told her that she had stopped off at a bar after work and had a beer and a shot. She related that after she got on Route 9, a Mustang with primer spots on it came up fast behind her, high beamed her and rode her bumper so that she thought that it was going to hit her.
Defendant told Klein that the other Mustang passed her and then slowed down after pulling in front of her. She then passed him, but he again passed her and slowed down. The two traded places one more time and then defendant tried to pass a third time. However, according to defendant, this time the other driver refused to let her re-enter the proper lane, first by speeding up, and then by slowing down. Defendant stated that she remembered seeing lights in the distance but that everything then went black. According to Klein, at no point did defendant tell her that she was afraid.
During the course of the investigation, the police inter-viewed a number of witnesses who offered statements regarding certain events leading up to the crash. One of these witnesses, Terry Braun, one of defendant's fellow employees at Trump's Plaza, confirmed that he met defendant at Sabatini's shortly after 8:00 p.m. on the night of the accident. He stated that he saw defendant drink one full beer, plus part of another. According to Braun, he and defendant left the bar at approximately 9:30 or 9:40 p.m. and retrieved his car from the Caesar's parking garage. Braun related that he then dropped defendant off at the employee parking lot (where she had left her car) and drove off.
Tony Amodio and his wife Christine testified that they were traveling northbound in a Ford Bronco at approximately 50 m.p.h. on Route 9 in Absecon when Tony, who was driving, noticed two Mustangs, one a dark color and the other gray, coming up fast behind them in his rear- view mirror. He stated, "Look at these assholes," and Christine turned and watched as the two Mustangs passed them on the driver's side. She confirmed that the lead car was dark in color while the second had gray primer on it. According to Tony, the Mustangs were traveling approximately 80 m.p.h., while Christine estimated their speed to be between 60 and 70 m.p.h.
Tony related that after the cars passed them, the lead car pulled back into the northbound lane and the other moved alongside it as though to pass, but then backed off and moved in behind it because of oncoming traffic. Christine and Tony agreed that the two cars then passed another car the same way by moving into the southbound lane. Christine believed that the two Mustangs might have passed another car, but she was not sure. She stated that the Mustangs were traveling side by side as they entered a curve in the road. Shortly thereafter, they came upon the accident scene and pulled over to offer assistance.
Tony stated that the Mustang at the crash site was the lead car that passed them. Tony believed that the two cars were racing because of their speed and the way they were weaving in and out of traffic. It appeared to him that neither driver wanted to yield to the other. Tony stated that when the two cars were traveling side by side it seemed as though they were drag racing.
According to witness William Hull who was heading northbound on Route 9 at approximately 9:45 p.m., the two cars came up fast behind him. He immediately slowed down to 35 m.p.h. to let them pass. He did not see the cars return to the right lane because of the bend in the road. As he rounded the bend, he saw debris and pulled over and ran to defendant's Mustang.
Adrian Bravenboer informed police that sometime after 9:30 p.m., he was traveling northbound on Route 9 at approximately 45 to 50 m.p.h. when he was passed by two cars which were doing about 75 m.p.h. He stated that, after passing him, the lead car moved back over into the proper lane but that the second car stayed in the left lane and pulled up alongside the lead car as they traveled uphill.
According to Bravenboer, the two cars remained side-by-side entering the bend although there was more than enough room between the lead car and his own car in the northbound lane. He believed that the two cars were racing and that the second car was trying to pass the lead car. As they entered the bend, Bravenboer saw the car on the left slam on its brakes and then, as he rounded the bend, he saw dust and debris all over the road. He noted that the car which had been on the left was disabled on the side of the road, while the other car which had been involved in the racing had disappeared.
Stephen Nanfara informed police that he was stopped at the corner of Shore Road and Route 9, waiting to turn onto Route 9 when he saw two Mustangs, one blue and one gray, come flying by on the northbound side of Route 9. He estimated that the gray Mustang was about one or two car lengths behind the blue GT which he believed was traveling at between 100 to 120 m.p.h. He stated that he thought the two cars were racing.
Pasquale Mucciolo described talking to his girlfriend at a payphone located along Route 9 when he heard the sound of roaring engines and saw two Mustangs come speeding by traveling side by side at approximately 100 m.p.h. Just before the two cars disappeared around a bend, he saw the car on the left hit its brakes and heard the sound of downshifting and a backfire. He saw the car on the left shake as its driver tried to get back over into the right lane. He did not see the car on the right attempt to brake. When he later drove by the accident scene he noticed that one of the Mustangs he had observed was involved.
Scott Beibin, who was living in a second-floor apartment in a house located on the Route 9 "blind" curve, told police that he glanced out a window upon hearing the sound of revving engines. Although his view of Route 9 was partially obscured by trees, he was able to see two cars pass by traveling side by side at a fast rate. Almost immediately after the two cars passed by, he heard the sound of a crash. Beibin then heard a car shift gears and drive off.
Dr. Walter Hofman, a forensic pathologist, performed an autopsy on the victim and determined that Madera died from multiple injuries resulting from blunt force trauma. Specifically, he noted that she sustained multiple fractures of her skull, vertebrae, ribs, left arm and both legs. He said that the force of the crash had caused her brain to split, and her lungs, aorta, liver and spleen to tear, resulting in massive hemorrhaging. In his opinion death was instantaneous.
On September 26, 1994, Dr. Steven Kuranovich, principal forensic scientist at the state police lab in Hammonton, New Jersey, received the two vials of defendant's blood which had been drawn at the hospital the night of the accident. Blood tests revealed a blood alcohol content of .089%. Defendant was arrested on February 6, 1995, and subsequently indicted in connection with Madera's death.
At trial the State presented the expert testimony of Investigator Barry Wythe of the Atlantic County Prosecutor's Office, who had received extensive training in accident investigation and reconstruction. Wythe testified that based upon his examination of the damage to the two cars, the eyewitness accounts and the skid-marks, that at the time of the accident defendant was traveling between 67 and 70 m.p.h., and that the victim was traveling at approximately 40 m.p.h. He noted that the posted speed limit around the curve on Route 9 is 45 m.p.h. and that it is even lower (40 m.p.h.) on certain stretches of the highway leading to the crash site. Analogizing each car to a clock with the center of the hood at 12:00, Wythe believed that the victim's car was struck at the equivalent of 11:00 while the initial impact to defendant's car occurred at 12:30 or 1:00. He opined that upon impact the defendant's car rotated counterclockwise and traveled 187 feet, while the victim's car lost all speed and was actually pushed backward.
Wythe noted that Betsy Madera's Toyota left no skid marks at the scene but that there were skid marks from a third vehicle, not the defendant's Mustang, which did not show any evidence of fishtailing. He stated that at some point either in October or November of 1994 the police received tips regarding the third car and the identity of its driver. He related that in early 1995 Darrin Cobb became the exclusive other suspect.
Although he had not initially noticed any damage to defendant's vehicle, Wythe acknowledged that defendant's investigator brought to his attention that there was a small mark on the rear bumper of defendant's car. However, Wythe did not believe that this mark could have resulted from an impact from the rear because there was no corresponding damage to the superstructure of the car and the mark was actually located on a recessed portion of the bumper. In Wythe's estimation, the mark was nothing more than a smear which did not go into the bumper but ran across the bumper laterally.
Wythe also said that there was no evidence of contact between the car found to belong to Cobb and defendant's Mustang, noting that defendant never informed the police or anyone else that she had been bumped.
Dr. John Brick, a biological psychologist called by the State, gave an opinion as to defendant's peak blood alcohol content. Noting that the documented blood alcohol content was .089% at 11:43 p.m., Brick testified that a concentration of .089% reflected the consumption of the equivalent of 47 ounces of beer or four one-half ounce shots of 80 proof alcohol. Although peak blood alcohol content can occur anywhere from thirty to ninety minutes after consumption of the last drink, Brick believed that defendant would not have required the maximum amount of time to achieve her peak because she consumed distilled spirits which enter the system more rapidly. He estimated that defendant's peak blood alcohol concentration would have occurred approximately fifty minutes after she stopped drinking or twenty-plus minutes after the accident.
In order to calculate defendant's peak blood alcohol content, Brick assumed that she had been drinking at an even rate, without consuming any food, between 8:00 p.m. and 9:30 p.m. and that alcohol was being eliminated from her system at the standard rate of .015% per hour. Utilizing a computer to create a curved graph, Brick determined that defendant's peak blood alcohol concentration was .104%. He noted that if defendant consumed distilled spirits just before she left the bar, her blood alcohol content at the time of the accident would have been a little lower. Brick also stated that although he once used straight- line graphs to chart blood alcohol content, he no longer uses them because they cannot take into consideration as many variables and often result in overestimated peaks.
Brick testified that individuals with a .10% blood alcohol concentration are slightly impaired in their ability to operate a car even though they do not necessarily exhibit all of the classic signs of drunkenness. He noted that such individuals have difficulty dividing their attention and adjusting to glare from headlights, and also exhibit slower reaction times, impaired judgment and decreased attention to risk. Although defendant's blood alcohol concentration may have been a little less than .10% at the time of the accident, Brick had no doubt that she was impaired. He estimated that defendant's relative risk for an accident was six-plus times greater than a person with no alcohol in their system.
Defendant elected to testify in her own defense. She stated that in September 1994 she was attending a local community college and working part-time as a cashier at the Trump Plaza Casino Hotel. According to defendant, she owned a blue Mustang GT which she had purchased in April 1993. She explained that she took meticulous care of her car, washing it every other day and that there was absolutely no damage to the rear of the car prior to the accident.
Defendant confirmed that on Sunday, September 25, 1994, she left work at approximately 8:00 p.m. after working an eight-hour shift and headed to Sabatini's in order to meet Braun. She said that she had eaten a slice of pizza and a salad between 3:00 and 4:00 p.m. While at the bar, she ordered a Coors Lite, which she said she drank over the course of the next hour. At approximately 9:00 p.m., she returned to the bar from the bathroom and found a shot waiting for her. She drank the shot, although she did not know what it contained. Immediately after, she took a sip from another beer in order to rid her ...