On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, 97-05-0868.
Before Judges Havey, Coburn, and Weissbard.
The opinion of the court was delivered by: Weissbard, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 4, 2002
In this case we hold that evidence that defendant was driving while his license was revoked was inadmissible in a prosecution for various offenses arising out of an automobile accident in which the passenger in defendant's vehicle was fatally injured. We conclude that defendant was prejudiced by the admission of this license revocation evidence on the issue of whether he was operating the vehicle with the requisite state of mental culpability, and therefore reverse his convictions on all counts.
Defendant, Benhart Bakka, appeals from his conviction, after a trial by jury, on all three counts of an indictment charging third degree operation of an unlawfully taken motor vehicle in a manner likely to create a risk of injury, N.J.S.A. 2C:20-10(c) (count one), first degree aggravated manslaughter, N.J.S.A. 2C:11-4 (count two), and second degree vehicular homicide, N.J.S.A. 2C:11-5 (count three). The trial judge also found defendant guilty on two motor vehicle offenses, driving while intoxicated (DWI), N.J.S.A. 39:4-50, and operating a motor vehicle while his license was suspended, N.J.S.A. 39:3-40.
At sentencing, the court granted the State's motion to impose an extended term based on defendant's persistent offender status, N.J.S.A. 2C:44-3a. The extended term of life imprisonment with twenty-five years of parole ineligibility was imposed on count two. A five-year prison term with two and one- half years of parole ineligibility was imposed on count one, concurrent with the life sentence. Count three was merged with count two. Appropriate penalties were also imposed.
On the motor vehicle offenses, Bakka was sentenced to 180 days in the County Correctional Institution, a ten-year loss of license for DWI, and a ten-day jail term with a six-month license suspension for driving with a suspended license. The county jail terms were consecutive to the life sentence and consecutive to each other.
On appeal, defendant raises the following issues:
I. WHETHER THE TRIAL COURT ERRED IN PERMITTING THE STATE TO INTRODUCE EVIDENCE THAT DEFENDANT'S DRIVING PRIVILEGES WERE REVOKED SINCE IT WAS NOT ADMISSIBLE TO PROVE RECKLESSNESS, THEREBY DENYING DEFENDANT HIS RIGHT TO A FAIR TRIAL?
II. WHETHER THE TRIAL COURT ERRED IN DETERMINING THAT THE ORAL AND WRITTEN STATEMENTS MADE BY DEFENDANT WERE ADMISSIBLE?
A. WHETHER DEFENDANT WAS SUBJECTED TO CUSTODIAL INTERROGATION AND WHETHER THE TRIAL COURT ERRED IN CONCLUDING OTHERWISE?
B. WHETHER THE TRIAL COURT ERRED BY CONCLUDING THAT EVEN IF DEFENDANT WAS SUBJECTED TO CUSTODIAL INTERROGATION, THE ORAL STATEMENTS GIVEN WERE VOLUNTARY IN NATURE?
C. WHETHER DEFENDANT'S STATEMENTS GIVEN AT THE HOSPITAL TAINTED THE WRITTEN STATEMENT OBTAINED FROM DEFENDANT, WARRANTING ITS EXCLUSION AS WELL?
III. WHETHER THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A MISTRIAL ARISING OUT OF TESTIMONY ELICITED FROM A POLICE OFFICER INDICATING THAT DEFENDANT HAD PREVIOUSLY BEEN INCARCERATED?
IV. WHETHER THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SEVER COUNT I FROM COUNTS II AND III?
V. WHETHER THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL AS TO COUNT II?
VI. WHETHER THE TRIAL COURT ERRED IN RULING THAT TWO OF DEFENDANT'S THREE PRIOR CONVICTIONS WERE ADMISSIBLE TO ATTACK CREDIBILITY?
VII. WHETHER THE TRIAL COURT ERRED IN NOT MERGING DEFENDANT'S DRUNK DRIVING CONVICTION INTO ...