On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, 95- 5-571-I.
Before Judges Skillman, Wallace, Jr. and Wells.
The opinion of the court was delivered by: Wallace, Jr., J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: April 30, 2002
A Middlesex County grand jury indicted defendant for aggravated manslaughter, N.J.S.A. 2C:11-4a. Tried by a jury, defendant was found guilty of the lesser included offense of second-degree death by auto, N.J.S.A. 2C:11-5. The trial judge imposed a sentence of seven years in prison, with a three-year period of parole ineligibility. Appropriate fines and penalties were also imposed.
On appeal, defendant makes the following arguments in his brief:
POINT I: BY INSTRUCTING THE JURY THAT THE REMOVAL OF WILLIAM PATRICK'S LIFE SUPPORTS DID NOT CONSTITUTE AN INTERVENING CAUSE, THE COURT DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO HAVE THE CAUSATION ISSUE DECIDED BY THE JURY. POINT II: BY DELIVERING AN OPENING STATEMENT REPLETE WITH PEJORATIVE REFERENCES TO DEFENDANT ALMOST IDENTICAL TO COMMENTS HE HAD MADE IN A PREVIOUS CASE THAT HAD LED TO REVERSAL ON GROUNDS OF PROSECUTORIAL MISCONDUCT, THE PROSECUTOR DELIBERATELY INTERFERED WITH DEFENDANT'S RIGHT TO HAVE HIS CASE DECIDED BY AN IMPARTIAL JURY. POINT III: THE THREE-YEAR MANDATORY MINIMUM SENTENCE WAS UNCONSTITUTIONALLY IMPOSED BECAUSE THE FACT OF DEFENDANT'S INTOXICATION WAS NOT DECIDED BY THE JURY. (NOT RAISED BELOW).
We conclude it was error to instruct the jury that the removal of life support from the victim did not constitute an intervening cause, and that this issue must be decided by the jury. We reverse and remand for a new trial.
The facts may be briefly stated. The conviction arose out of an automobile accident which occurred around 11:30 p.m. on December 29, 1995. Defendant was operating his vehicle when he collided with the rear of a vehicle driven by William Patrick. The force of the impact caused Patrick's vehicle to strike a guardrail and utility pole approximately 150 feet away.
Sergeant Mark Heistand and Lieutenant Richard Hutchinson of the South Brunswick Police Department were nearby and heard the crash. They immediately responded to the scene of the accident, secured the area, and requested assistance. Defendant exited his vehicle and approached the police officers. After the police determined that defendant was not injured, they turned their attention to the Patrick vehicle. They found Patrick unconscious and his passenger semi-conscious. Emergency crews eventually used the "jaws of life" to free Patrick and his passenger and both were transported to a nearby hospital.
The passenger was released the next day, but Patrick sustained serious injuries and remained in the hospital. He suffered two fractured vertebrae and damage to his spinal cord, causing paralysis from his chest down. In addition, he suffered pulmonary contusions, a punctured lung, multiple rib fractures, a laceration on his scalp, and a significant closed head injury, causing loss of consciousness and bleeding in his brain. Patrick was placed on a ventilator for assistance in his breathing. Unfortunately, he was not able to recover. Both Patrick and his family eventually requested to have the ventilator removed. On May 30, 1996, an intravenous morphine drug was administered to Patrick, and the ventilator was removed. Patrick died several hours later.
We return to the scene of the accident. Sergeant Heistand approached defendant who was standing outside of his vehicle.
At first, defendant did not believe he had been involved in an accident and said he had been run off the road. After Heistand showed defendant the front-end damage to his vehicle and the paint on his vehicle from Patrick's red vehicle, defendant acknowledged he must have been in an accident. Heistand noticed defendant was swaying and had an odor of alcohol on his breath. Other officers arrived on the scene. Heistand walked away from defendant to speak to Sergeant Allen Sanchez, who was the midnight shift commander. Heistand believed that defendant was under the influence of alcohol and requested Officer Mark Montagna to administer roadside sobriety tests.
Montagna observed that defendant was unsteady. He asked defendant to recite the alphabet, close his eyes and tilt his head back with his arms by his side, and perform the finger-to- nose test. Defendant recited the alphabet correctly, but paused a few seconds between letters about five or six times. Defendant lost his balance after tilting his head backward. On the finger-to-nose test, Montagna instructed defendant to touch his right hand to his nose three times and touch his left hand to his nose twice. Defendant could not follow this sequence and, after two ...