On appeal from Superior Court of New Jersey, Law Division, Criminal Part, Passaic County, Indictment No. 95-06-717.
Before Judges Conley, A. A. Rodríguez and Lefelt.
The opinion of the court was delivered by: Conley, J.A.D.
As amended December 20, 2001.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 26, 2001
Driving while intoxicated, defendant lost control of his car. The resulting one-car accident caused severe and permanent injuries to his girlfriend. Following a jury trial, defendant was convicted of second-degree aggravated assault and forth- degree assault by auto, along with several motor vehicle adjudications made by the trial judge following the jury verdict. An aggregate term of nine years with a three-year parole disqualifier was imposed, along with the necessary fines and penalties.
On appeal, defendant contends:
THE INSTRUCTIONAL ERRORS IN THIS CASE, ALONE OR IN COMBINATION, DEPRIVED THE JURY OF PROPER GUIDANCE AND THE DEFENDANT OF DUE PROCESS OF LAW AND THE RIGHT OF A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST., ART. I, ¶¶ 1, 9, 10.
A. THE FAILURE TO ADEQUATELY DEFINE THE DEGREE OF RECKLESSNESS REQUIRED FOR AN AGGRAVATED ASSAULT CONVICTION REQUIRES REVERSAL OF THAT CONVICTION.
B. THE COURT'S FAILURE TO EXPLAIN THE DIFFERENCE BETWEEN THE RECKLESSNESS AND NEGLIGENCE OR CARELESSNESS AS REQUESTED BY THE DEFENSE REQUIRES REVERSAL OF DEFENDANT'S CONVICTIONS FOR BOTH AGGRAVATED ASSAULT AND ASSAULT BY AUTO.
C. THE COURT'S FLAWED AND INCOMPLETE INSTRUCTIONS CONCERNING THE LESSER INCLUDED MOTOR VEHICLE OFFENSE, DRIVING WHILE INTOXICATED AND RECKLESS DRIVING, WERE CONTRARY TO STATE V. MUNIZ AND DENIED DEFENDANT A FAIR TRIAL AS DID THE COURT'S FAILURE TO CHARGE CARELESS DRIVING AS A LESSER- INCLUDED OFFENSE.
D. THE TRIAL COURT'S REFUSAL TO INSTRUCT THE JURY AS TO HOW EVIDENCE OF INTOXICATION RELATED TO RECKLESSNESS AND TO MANIFEST EXTREME INDIFFERENCE TO THE VALUE OF HUMAN LIFE DENIED DEFENDANT DUE PROCESS AND A FAIR TRIAL.
E. THE TRIAL COURT'S REFUSAL TO INSTRUCT THE JURY THAT ASSAULT BY AUTO WAS A LESSER-INCLUDED OFFENSE OF AGGRAVATED ASSAULT DENIED DEFENDANT OF A FAIR TRIAL AND DUE PROCESS OF LAW.
THE COURT ABUSED ITS DISCRETION AND DENIED DEFENDANT DUE PROCESS OF LAW IN ADMITTING UNRELIABLE TESTIMONY CONCERNING THE RESULTS OF AN ALLEGED SCIENTIFIC TEST IN THE ABSENCE OF A SUFFICIENT FOUNDATION CONCERNING THAT TEST. (U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARA. 1 (Partially Raised Below).
PROSECUTORIAL MISCONDUCT DEPRIVED THE DEFENDANT OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL. U.S. CONST. AMEND. 16, N.J. CONST. ART. 7 PAR. 10 (Partially Raised Below).
A. THE PROSECUTOR'S REFERENCE TO EXCLUDED TESTIMONY WAS IMPROPER.
B. PROSECUTOR'S REPEATED CHARACTERIZATION OF DEFENDANT AS A LIAR WAS IMPROPER
C. THE PROSECUTOR'S ATTEMPT TO INFLAME THE JURY BY SOLICITING SYMPATHY FOR THE VICTIM AND ANTIPATHY TOWARDS MR. PIGUEIRAS WAS IMPROPER.
THE TRIAL COURT IMPOSED A CLEARLY EXCESSIVE SENTENCE.
We have considered these contentions in light of the record and applicable law. Point IC and E, Point III, and Point IV are of insufficient merit to warrant further comment. R. 2:11- 3(e)(2).
We address Point II briefly. Defendant contends the State's reconstruction expert's opinion that defendant had a speed loss or reduction in speed of 43 m.p.h. as a result of skidding for a distance of seventy-three feet was based upon a scientific methodology using a "drag sled," which was not shown to be reliable and that its introduction into evidence was reversible error. We reject this contention. Defendant, who had the expert's report long before trial and knew of the 43 m.p.h. speed loss theory, not only did not object on the basis he now raises before us but told the judge "[i]t's properly before the court." Had he done so, the State would have been afforded the opportunity to establish the reliability of the "drag sled" test. We are told by the State in its brief:
The drag-sled test consists of dragging part of a concrete-filled tire over the road surface to measure the coefficient of friction. See Fricke & Baker, Drag Factor and Coefficient of Friction in Traffic Accident Reconstruction, Exhibits 13 and 14 and accompanying text (Northwestern University Traffic Institute), pp. 62-11 to 62-13 (Pa10 to 12). It is hardly a "high technology venture." See Seeing is Believing, Or Is It? An Empirical Study of Computer Simulations as Evidence, 34 Wake Forest L. Rev., 257, 294 n. 100 (Summer 1999). It is, rather, a fairly simple process, and because it is not a highly technical method there is not a high degree of proof of reliability necessary. State v. Haskins, 131 N.J. [643,] 650 [(1993)]. The reliability of the device, had defendant sought to challenge it, would have needed only to be "clearly established." Id. Certainly that could easily be done by pointing out the inclusion of the drag sled in the accident reconstruction manual published by the long-established leader in the field. . . .
Defendant has not shown any defect in the formula used by Officer Rentas to calculate defendant's speed loss over the course of the skid. Nor could he. This is a principle of basic physics known as the coefficient of friction, commonly used to estimate speed. The scientific reliability of determinations of speed using principles of physics is well accepted by experts. See Expert Testimony Regarding the Speed of a Vehicle: The Status of North Carolina Law and the State of the Art, 16 Campbell L. Rev. 191, 199-203 (Spring 1994).
Moreover, even if erroneously admitted, the harm is slight. Defendant argues the evidence allowed the jury to infer that his speed before the initial impact must have been very excessive and, thus, formed a basis for the jury's finding of "extreme indifference to human life" necessary to convict him of the second degree aggravated assault charge. We are convinced, however, the jury did not need the speed reduction evidence to conclude defendant's speed was egregiously excessive under the circumstances. Indeed, defendant conceded during the trial that he was going 65 to 70 m.p.h. before impact.
We address the remainder of defendant's contentions in more detail. We conclude they do not require a reversal of the convictions.
On May 29, 1994, Eunice Roman and defendant attended a wedding reception at the Wayne Manor Banquet Hall in Wayne Township. Sometime shortly after midnight, the couple left the reception in defendant's 1989 Lincoln Town Car, heading south on Route 23. Defendant was intending to exit onto Route 80. After driving approximately three miles, they approached the Route 80 off-ramp. In a statement taken shortly after the accident, defendant said he was going 55 or 60 m.p.h. At trial he said his speed was 65 or 70 m.p.h. The area is a 55 m.p.h. zone. He hit the curb on the front driver's side of the vehicle, and then hit two attenuators, or sand-filled crash barrels, with the front, passenger side of the vehicle. The vehicle skidded for seventy-three feet, slammed into a guardrail, spun around counter-clockwise, and slide off the road, down a ravine, passenger side first. The ravine was about fifteen or twenty feet down. The vehicle traveled over two small trees, which bent with the weight, becoming up-rooted and creating a ramp-like effect, propelling the vehicle upward. The vehicle rolled over and landed at sufficient speed to vault into the air again, after which it landed in a "mangled hunk of black steel" heap, 128 feet away from where it exited the roadway. Ms. Roman was ejected from the passenger side window landing approximately thirty-four feet from where the vehicle finally came to rest. Defendant was also ejected from the car, landing about five feet from the vehicle.
The State's expert was not permitted to estimate the speed at which defendant was traveling when the accident occurred, but he was allowed to testify that if defendant was traveling at 55 or 60 m.p.h., he would have been traveling at only 11 to 16 m.p.h. when the car struck the guardrail, and that was unlikely because of what occurred thereafter. Indeed, as we have said, defendant testified during the trial that his speed prior to impact was 65 to 70 m.p.h.
Ms. Roman's injures were extensive. Her jaw was broken and split in two. She had several broken ribs, a broken clavicle, a collapsed lung and injury to her right hand and leg. By the time of trial she had not regained full use of her hand or leg. Her most devastating injury was to her brain stem. She remained in intensive care for two-and-a-half months and was comatose for seven-and-one-half months. Although she emerged from the coma, she had to relearn the most basic skills, including eating, speaking, and ambulation, and ultimately was transferred to the Kessler Institute for rehabilitation. She has suffered damage to her cognitive abilities, as well as partial amnesia. Ms. Roman does not remember the wedding, the accident, or even the defendant, with whom she had lived and was engaged to be married. At ...