The opinion of the court was delivered by: Stein, J.
ON CERTIFICATION TO Appellate Division, Superior Court
Chief Justice Poritz PRESIDING
On certification to the Superior Court, Appellate Division.
This is an appeal from a conviction for vehicular homicide. The specific issue is whether comments made by the prosecutor with respect to defendant's expert witnesses' compensation, and their relationship to the reliability of their testimony, constituted prosecutorial misconduct that requires a new trial.
On April 6, 1995, defendant, Robert Smith then age twenty- five, attended a sporting event in Philadelphia with his father and brother-in-law. Defendant admitted to drinking four or five twelve-ounce beers at the sporting event. At approximately 11:00 p.m., defendant and his father drove to defendant's uncle's house in Runnemeade, New Jersey, where he stayed for approximately half an hour. Thereafter, at around 11:30 p.m., defendant began driving home to Collings Lakes.
A few minutes before 1:00 a.m., Lynn Makowski, the vehicular homicide victim, left her boyfriend Wayne Green's hotel room riding a bicycle on Route 42. Wayne Green testified that he was living at the hotel at that time and that when Makowski left the hotel she told him that she was going to get cigarettes. However, two packs of cigarettes were found on Makowski's person after the accident. Moreover, when Makowski left the hotel, she was carrying a large bundle of clothes that, according to one of the investigating officers, "filled up three bags." Among those clothes were many personal possessions, including letters, cards, a comb and a pen. Defense counsel contended during summation that a more likely explanation for Makowski's departure from the hotel was that she and her boyfriend had had an argument and she was leaving him.
The evidence at trial revealed that Makowski was dressed in dark clothing except for white sneakers, and that there were no lights or retro-reflectors on her bicycle. Furthermore, subsequent tests disclosed that the alcohol content in Makowski's blood was 0.028 percent, a reading that indicated that prior to the accident she had consumed one or two alcoholic drinks. Blood tests also revealed that Makowski recently had inhaled cocaine. The Chief Toxicologist of the New Jersey State Toxicology Laboratory, Dr. Lang Lin, testified that the amount of cocaine found in Makowski's blood indicated very recent ingestion of cocaine, either by snorting or injection, that was enough to produce a deleterious effect on Makowski.
At approximately 1:00 a.m., defendant was driving toward his home on Route 42. It was a foggy, rainy night and the portion of Route 42 where the accident occurred was lit poorly. Route 42 was a two-lane highway and each lane was about ten-feet wide. The road's shoulder had numerous potholes and ruts and was not well-maintained. Defendant was driving within the speed limit when his vehicle struck and killed Lynn Makowski while she was riding her bicycle. Dr. Walter Hoffman, acting medical examiner of Gloucester County, testified that Makowski died as a result of blunt trauma and that the fracture and dislocation of her neck caused her immediate death. Makowski suffered multiple injuries, including abrasions and scrapes caused by her body being dragged, multiple fractures including the upper arms, and tearing of the lungs, heart and liver.
Defendant testified that at the time of impact he thought that someone had thrown a brick at his windshield. However, when he stopped his vehicle and saw an "uncontrollable moving body" on the side of the roadway he panicked and drove to a friend's house. That friend was not home, so defendant called his uncle and brother-in-law to tell them what had happened. Following their advice, defendant immediately drove to a nearby police station. At the police station, defendant was read his Miranda rights. At approximately 4:30 a.m. another officer arrived at the police station and he informed defendant of his Miranda rights for the second time. Defendant signed a waiver card and gave the police an oral statement but declined to give a written statement about the events that led up to the automobile accident.
Although defendant appeared to understand his rights and articulated his words without difficulty, the police detected alcohol on his breath and asked him to provide a blood sample. Defendant agreed and the sample was tested. The alcohol content in defendant's blood was 0.103 percent. Based on that and other evidence elicited at trial, the jury could have found that defendant's blood alcohol content at the time of the accident was between 0.12 percent and 0.17 percent. The State estimated that defendant had consumed between six and nine twelve-ounce beers during the course of the evening prior to the accident.
In February 1997 a Gloucester County Grand Jury returned an indictment charging defendant with second-degree vehicular homicide, contrary to N.J.S.A. 2C:11-5 (count one), and second- degree reckless manslaughter, contrary to N.J.S.A. 2C:11-4b(1) (count two). Defendant also was charged with operating a motor vehicle while under the influence, N.J.S.A. 39:4-50, careless driving, N.J.S.A. 39:4-97, and leaving the scene of an accident, N.J.S.A. 39:4-129.
Defendant's jury trial in April and May of 1998 lasted six days. At trial, the State's theory of the case was that defendant was driving under the influence of alcohol when he struck and killed Makowski, who was riding her bicycle on the shoulder of the roadway. Defendant contended that the victim, while under the influence of cocaine, was riding her bicycle on the roadway without any reflector lights and that therefore the accident was unavoidable. Because criminal homicide constitutes "vehicular homicide when it is caused by driving a vehicle . . . recklessly," N.J.S.A. 2C:11-5, to find defendant guilty the jury had to find that defendant consciously disregarded a substantial and unjustifiable risk while driving his vehicle and that Makowski would not have died but for defendant's reckless conduct. Because the State and the defense presented expert witnesses who provided sharply conflicting testimony about where Makowski was riding her bicycle when she was hit by defendant's car, defendant's guilt hinged on whether the jury believed the defense experts or the State's experts.
At trial, the State presented Corporal Eric Conova of the Washington Township Police Department as a witness. Although qualified to investigate accidents, he was neither an expert in accident reconstruction nor had any training on the subject. Conova testified that a Volkswagen (VW) emblem from defendant's 1991 GL Fox automobile was found close to the white line that runs between the roadway and the shoulder. He also testified that he saw glass from the vehicle's headlight on the edge line of the shoulder within a foot or two of the traveled portion of the roadway, and that the victim's sneaker was found on the edge line of the shoulder just south of the glass debris. Corporal Conova stated that Makowski's bicycle seat and front wheel were found, respectively, 339 feet and 345 feet south of what he alleged to be the point of impact. The bicycle frame was found on the edge line of the shoulder at the intersection of Route 42 and Laurel Avenue. Conova also stated that Makowski's body was found partially on the shoulder and partially on an intersecting street, Summit Avenue. She was about sixty-eight feet from what he believed to be the point of impact. With respect to the condition of the shoulder, Conova described photos shown to him as being representative of the condition of the roadway on the night in question. He stated that the shoulder was in very poor condition, with ruts and potholes that had standing water. Regarding defendant's car, Conova testified that the hood was damaged on the front right side, the front right headlight was broken, the windshield had collapsed inward and the VW emblem was missing. He also stated that the back wheel of Makowski's bicycle was found under defendant's car.
On cross-examination, Conova admitted that because the accident scene was not immediately secured after the accident occurred, there was a lapse of about half an hour during which other vehicles may have driven through the accident scene. Subsequently, defense counsel confronted Corporal Conova with an authoritative text on accident reconstruction. Defense counsel read the following paragraph: "Because debris scatters so much, it is usually a poor indicator of where collision took place. Look for a better indicator of the collision point." Conova agreed that debris is an indicator of only the general area of an accident's point of impact, and admitted that he picked up only the largest pieces of headlight glass and did not collect the smaller pieces. He also acknowledged that because Route 42 has a "crown" drainage system, water on the roadway would drain toward the edge of the roadway. He stated that he did not know if the volume of rainwater was sufficient to have forced the smaller pieces of glass off the roadway to the shoulder. Conova also admitted that there were potholes and ruts that ran up and down the roadway's shoulder and that some of the potholes exceeded twelve inches in diameter.
Although Conova stated in his initial police report that "he could not place where victim's bike was riding prior to the accident," at trial he testified that he believed that the impact location was "from that edge line inward toward the right side of the shoulder, in that general area." He also stated that his statement was only a mere approximation and he admitted that the accuracy of his calculations could be "within several feet." We note that although Conova was questioned as if he were an expert in accident reconstruction, his opinion concerning the point of impact was elicited only as an opinion based on experience and not as an expert.
The State's only expert witness in the field of accident reconstruction was Lieutenant James Mentzer. Lieutenant Mentzer was then employed by the Monroe Township Police Department and was about to begin work with the Gloucester County Prosecutor's Office as a vehicle homicide investigator. His training and expertise included basic police science work and specialized training in traffic accident reconstruction and accident investigation. Mentzer's educational background included an Associate of Arts in Criminal Justice, a Bachelor of Arts in Law Justice and numerous courses and seminars on accident reconstruction and bicycle crashes. He was qualified as an expert in many New Jersey courts and in federal court. He had taught courses at the police academy in Gloucester County. He was a member of numerous societies related to accident investigation and reconstruction and has published several articles on the subject. Although on voir dire the defense questioned whether Mentzer could give an opinion to a reasonable degree of scientific certainty when he was neither an engineer nor a physicist, the defense acknowledged that Mentzer was qualified as an expert witness.
In reaching his ultimate conclusion about where the impact occurred, Mentzer took into account the police reports, the autopsy report and photographs of the scene. He also visited the scene, saw the physical evidence and interviewed Corporal Conova. Mentzer testified that in his opinion the impact could not have occurred on the roadway. Instead, he believed that the point of impact occurred on the shoulder of the roadway. He explained that in reaching that conclusion he not only took into account the debris, but also the damage to the car and to the victim. He stated that Makowski's injuries to her neck and back were consistent with a collision where a bicycle was hit in the rear by a motor vehicle. He also stated that "the victim . . . was obviously deposited onto the windshield and roof area of the vehicle" because "[t]he roof area of the vehicle was collapsed downward."
One of the major factors Mentzer relied on in arriving at his conclusion was the location of the debris. Mentzer specified that debris was "anything that came off the victim or came off the vehicle or the bicycle or the bicycle itself." Mentzer stated that the headlight glass debris was located close to the shoulder line of the roadway in a conical shape and that it was a good indicator of the general area where the impact occurred because the glass debris "is going to spread out just a little bit" from where the first contact occurred. Mentzer testified that in his opinion, after being hit by defendant's car "[t]he victim was carried some distance from the vicinity of where the impact occurred and fell off of the shoulder surface, actually more onto a side street." Moreover, Mentzer stated that the position of the bicycle frame, front wheel, and seat, all of which were linearly positioned along the roadway's shoulder, was consistent with an impact that occurred on the shoulder rather than on the roadway. Mentzer also testified that the location of the debris was consistent with a "roof vault" type of accident and that "the victim was carried some distance from the vicinity of where the impact occurred and fell off of the surface, actually more onto a side street." Thus, Mentzer concluded that as a result of having consumed alcohol defendant operated his vehicle about three feet to the right of the shoulder line and the point of impact was "roughly two feet off the roadway."
On cross-examination, Mentzer conceded that the roadway's shoulder had deteriorated to the point that it had significant potholes. Moreover, he admitted that when he went out to investigate the scene the roadway already had been repaved, and that he made no independent effort to verify whether the size of the potholes, as described by Corporal Conova, was accurate. Mentzer also acknowledged that the debris is not a reliable indicator of the actual point of impact, and that he did not make any measurements to calculate the speed at which defendant was driving prior to the impact. He also admitted that he omitted conducting any inquiry about the extent of the lighting on the roadway at the time of the accident, and that he merely "induced the conspicuity aspect of the individual riding the bicycle." With regard to the location of Makowski's body, Mentzer acknowledged that studies have been done that indicate that victims of roof vaults often land in different places. He stated that Makowski's body moved "somewhat to the right over the roof," and that he could not "be certain as to how much or what angle she rolled to the right."
The defense called three expert witnesses. Dr. Richard Saferstein is a forensic scientist who has a Ph.D. in chemistry and has served for twenty-one years as the chief forensic scientist for the New Jersey State Police. Saferstein has taught forensic science at the college level and has written a leading textbook in the field of forensic science. Saferstein testified that Makowski's blood contained a small quantity of alcohol and a significant quantity of cocaine (0.15 milligrams per liter). Saferstein explained that those findings reveal that Makowski used cocaine within two hours of her death. Saferstein concluded that decedent's performance level was likely affected by the cocaine. However, Saferstein acknowledged that his conclusion was based on an average person taking a street level dosage of cocaine and that individuals react differently to cocaine. In addition, Saferstein explained that a person using cocaine usually experiences euphoria and will take risks and "throw caution and self-restraint to the wind." Furthermore, he testified that in general individuals on cocaine sustain various physical impairments, including blurred vision.
The prosecution confronted Saferstein with only a few questions on cross-examination. The prosecutor elicited that there are no published studies that correlate a 0.15 milligrams per liter content of cocaine with a quantifiable measure of performance, and that Saferstein never made any efforts to quantify Makowski's actual impairment levels. However, on re- direct, Saferstein confirmed that there are published studies documenting cocaine's general side effects.
With regard to Saferstein's compensation, Saferstein was cross-examined by the prosecutor as follows:
Q: Dr. Saferstein, let me get this part out of the way. I don't intend to offend you, how much are you - - how much were paid to work on this case?
A: I received $750 to review the file and to prepare a report. And I expect to be paid $1800 for my appearance here today.
The next defense expert was James Marley Green, an expert in forensic engineering and accident reconstruction of automobiles and bicycles. Green is one of only three forensic engineers in the United States who specialize in reconstructing bicycle accidents. He has a Bachelor of Science in physical science and a Masters degree in industrial hygiene (the study of modeling physical phenomena) and civil/operations research engineering. He is a registered forensic engineer in seventeen states and has been qualified as an expert witness in all states except Idaho. Green testified that he has taught many seminars concerning pedacyclist accidents and that he has written four engineering books on automobile and bicycle accident reconstruction. He also has written a reconstruction handbook entitled "Bicycle Accident Reconstruction in Litigation," that has become a primary source handbook used by engineers and police departments.
Green has been active in the field of accident reconstruction for twenty-seven years, and has investigated "several thousand" pedacyclist accidents. Furthermore, Green explained that as part of his studies he performs tests at a test track laboratory where he can accelerate bicycles into vehicles using a large rotating plate of asphalt, and uses dummies to study how pedacyclists as well as the debris are affected at the point of impact. He stated that those studies enable him to locate more precisely an accident's point of impact. Green also testified that he is an experienced cyclist and that he raced professionally with racing teams for fifteen years. The State did not voir dire Green or question his credentials as an expert witness.
On direct examination, Green testified that he had reviewed all the physical evidence in the case, including police reports, toxicology reports, property receipts, photographs of the scene and weather reports. He also went to Route 42, once during the day and once at about 1:45 a.m., approximately the time that the accident took place. Green testified that he believed that Makowski could not have been riding her bicycle on the shoulder of the roadway and that she "more probably than not was definitely in the road at the time of the point of impact." He explained that because there were numerous large potholes in the shoulder it would be extremely difficult to ride on that surface. Green testified that although he is an experienced cyclist he would not have been able to ride his bicycle on that portion of the shoulder of Route 42.
Green opined that Makowski was hit from behind, and was rotated up on the hood of the car, onto the window and then rotated off to the side of the car. Green made this determination based on a "crush profile" that reflects the likely response of a motor vehicle that strikes a cyclist. Furthermore, Green concluded that defendant's car was traveling at a low rate of speed, because decedent's body rotated off the side of the car. According to Green, if defendant were traveling at seventy to eighty miles-per-hour, Makowski's body would have been thrown over the car. Therefore, he concluded that the crush profile of defendant's accident is entirely consistent with a vehicle hitting a bicycle at a speed range of about thirty to fifty miles-per-hour.
In addition, Green testified that he has done considerable work on "conspicuity." Conspicuity relates to the ability to see objects under certain conditions. He testified that almost all safety regulations now in force regarding bicycles' conspicuity are based on his research and findings. Based on his extensive experience, Green stated:
Based on the facts that it [was] dark, . . . she was wearing dark blue clothing, . . . [there was no] retro reflector [on the bike], . . . there was not a light on the bike as required by New Jersey law, and the fact it was raining, I am going to say due to the reaction time available to the motor vehicle driver, she was, in essence, invisible to him prior to the point of impact. [(Emphasis added).]
Green explained to the jury how light-colored clothing, such as flourescent green and yellow, are the best colors to illuminate someone at night, and that because Makowski was wearing dark clothing she was not visible. Green also stated that the rain likely affected defendant's ability to see the decedent. Because of the rain, "[a]s the motor vehicle approached the cyclist, the visibility of this cyclist had dropped from what could have been 1,200 to 2,000 feet down to 75 feet or less with the rain."
At the end of his direct testimony, Green stated that he was 100 percent confident that Makowski went over the side of the vehicle and did not vault over the vehicle, and further stated:
I can talk in a degree of engineering certainty on this. Engineering certainty, by the way, is pretty serious for an engineer to say under oath. That means I'm 100 percent certain that something occurred. I like to talk in terms of engineering probability. That means more likely than not, but this is engineering certainty. I would stake my reputation on this that the bike cyclist was hit from the rear, was rotated up onto the car, and was vaulted off the side . . . [a]nd . . . this cyclist was in the road when she was hit. She was not on the shoulder. I added to that, of course, the condition of the shoulder. I meant to get that into my answer.
Green's cross-examination by the prosecutor was short, and left Green's credibility virtually unchallenged. First, the prosecutor asked Green why it would be difficult to ride a bicycle on a surface with potholes. Green responded that one would have to maneuver around the potholes, and that this would have been difficult to do because there was no illumination of the roadway. The prosecutor then told Green that there was a street light post at the scene, and asked whether that would illuminate the area enough to allow a bicyclist to maneuver around potholes and be seen by drivers. Green responded that a "light post" only gives off about twenty feet of light, and that there would not be enough light to silhouette the area.
The prosecutor then questioned whether the decedent's bicycle contained a retro-reflector, and inquired if it was possible for a retro-reflector to be knocked off the bike if a rider was hit from behind. Green acknowledged that possibility, but stated that no retro-reflector was found at the scene. The prosecutor reminded Green that the decedent was wearing white sneakers, and asked whether that would make her more visible. Green stated that the white sneakers would not make her more visible because "90 percent of visualization . . . is from the center of gravity or belly bottom to the top of your head." The prosecutor also noted that a bundle of clothing was found on the scene and that some of the items were light blue and white. Green acknowledged that if decedent were carrying those items "at belt level" they might have been visible. Finally, in terms of where the decedent was struck, Green agreed that irrespective of whether the car was in the right lane of the roadway, or partially in the right shoulder of the roadway, a cyclist struck by the car would be thrown to the right-hand side of the roadway.
With regard to Green's compensation, the prosecutor asked the following:
Q: Mr. Green, let me just start out, how much were you paid for your services here today and in preparation for this case?
A: I don't have the billings, but I can just give you what my normal rate is. I normally charge - - my company charges $225 an hour for my time at trial if I have to travel, and then $200 an hour for my time at work.
Defense's last expert was Scott Batterman, who is an experienced forensic scientist. Batterman has a Bachelor of Science in civil and urban engineering, a Masters of Science in civil engineering and a Ph.D. in mechanical engineering and applied mechanics. He has taught as an adjunct professor at Villanova University and has given presentations and authored publications and papers on accident reconstruction. Batterman has experience in reconstructing "hundreds" of accidents since 1989 and has been qualified as an expert in several New Jersey courts and in Pennsylvania courts.
On direct examination, Batterman explained that in preparing his report for this case he looked at several items, including the photographs of the scene, and he inspected the remains of Makowski's bicycle as well as the scene of the accident. Batterman testified that the debris found on the scene was not a reliable indication of the exact point of impact because debris "spreads over a fairly wide area." He also stated that, according to reliable scientific literature, one cannot rely exclusively on the location of accident debris to determine the exact point of impact. With regard to the headlight glass debris, Batterman explained that although some pieces of glass were found on the shoulder of the roadway, that evidence was inconclusive because headlight debris spreads and scatters before it hits the ground. Batterman noted that not all the headlight glass was recovered and that the bumper of the car could have prevented the glass from falling. Batterman also commented on the VW emblem, stating that "there is no way to scientifically conclude that because a piece of light plastic which flew off a car which had been on an accident came to rest at that spot . . . that the car was straddling the fog line at the time of impact." Batterman also refuted Mentzer's testimony that Makowski's sneaker, found on the edge line of the shoulder of the roadway, was relevant in determining the exact point of impact. Batterman observed that "you cannot use [the sneaker's] resting point" to determine where the impact occurred. Batterman concluded:
Basically, when you consider the totality of the evidence, the fact that debris is a poor indicator of the location at the point of impact means that you really can't tell exactly where the impact occurred; however, in this case, we know that adjacent to the fog line on the shoulder, there are a lot of potholes and it was pretty rough terrain. So in my opinion, it is more likely than not that she would have been to the left of the fog line or in the travel lane portion of the roadway. And that's essentially my opinion to a reasonable degree of certainty that she likely was in the travel portion. And the presence of debris touching the fog ...