On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, I-00-07-1174.
The opinion of the court was delivered by: Baxter, J.S.C. (temporarily assigned).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 13, 2006
Before Judges Stern, A.A. Rodríguez and Baxter.
Defendant Amy Eldridge was found guilty of two counts of second degree vehicular homicide in violation of N.J.S.A. 2C:11-5 for recklessly causing the death of her two passengers by operating her vehicle while intoxicated and crashing into a tree. The Court sentenced her to two concurrent terms of eight years in the custody of the Commissioner of the Department of Corrections of which 85% was required to be served without eligibility for parole.
On appeal, defendant argues:
I. DEFENDANT'S CONVICTION SHOULD BE REVERSED BECAUSE THE JUDGE'S ERRONEOUS JURY INSTRUCTION VIOLATED DEFENDANT'S RIGHTS TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. V, VI, XIV; N.J. CONST. ART. I, PARA. 1, 9, 10.
II. DEFENDANT'S SENTENCE TO EIGHT YEARS IN PRISON VIOLATED HER SIXTH AMENDMENT RIGHT TO TRIAL BY JURY PURSUANT TO BLAKELY V. WASHINGTON, 542 U.S. 296, 124 S.CT. 2531 (2004); U.S. CONST. AMEND. V, VI, XIV; N.J. CONST. ART. I, PARA. 1, 9, 10 (NOT RAISED BELOW).
III. IMPOSITION OF AN EIGHT-YEAR NERA SENTENCE ON A YOUTHFUL, NON-VIOLENT, FIRST TIME OFFENDER WAS EXCESSIVE WHERE THE JUDGE IMPROPERLY RELIED UPON AGGRAVATING FACTORS NOT SUPPORTED BY THE RECORD AND IGNORED MITIGATING FACTORS CLEARLY PRESENT IN THE RECORD. U.S. CONST. AMEND. VI, XIV; N.J. CONST. ART. I, PARA. 1, 9, 10.
Because the judge failed to specifically instruct the jury that it could find the defendant not guilty if it concluded that the actions of her front seat passenger constituted an intervening cause of the crash, we reverse Eldridge's conviction.
On November 11, 1999, at approximately 2:30 a.m. on a clear dry night, the defendant, then 18 years of age, was the driver in a single car motor vehicle accident on Asbury Road in Howell Township. After leaving the road, her car traveled eighty-six feet until it struck a tree. The two passengers in the car, Vasil Green, in the front seat, and Waylon Biernacki, in the rear seat, were killed as a result. Defendant suffered serious injuries including a fractured hip and jaw. A forensic scientist determined that, at approximately 4:00 a.m., defendant's blood alcohol content was .175%.
Patrolman Timothy Kohan, the officer who responded to the crash, described Asbury Road as a rural or semi-rural county road with a single lane in each direction. When Kohan arrived at the scene at approximately 2:34 a.m., he observed that Eldridge's vehicle had hit a tree and was resting in the southbound lane of traffic facing north. Kohan noted that the defendant was in the driver's seat, yelling and screaming. Green was in the front passenger seat, breathing but unconscious, and Biernacki was in the back seat, also unconscious but breathing.
Noting that there was an odor of alcohol coming from the driver's breath, Kohan gave that information to his supervisor upon arrival. He also filled out a drinking/driving report. A five liter sized box of wine was later found in the trunk of the vehicle by another officer.
Corporal Joseph Fiore, a twenty-one year veteran of the Howell Police Department and a traffic safety officer, arrived at the scene at approximately 2:45 a.m. on November 11. During his testimony, he noted that there were no skid marks leading up to the tree. He explained that the tire impression led in a straight line, slightly diagonally, from the road directly to the point of impact. While he was unable to ascertain how fast the vehicle was traveling before the crash, he concluded that there was no indication that the vehicle was speeding.
Dr. Sogra Saleem of the county medical examiner's office testified that Green and Biernacki had each died from injuries sustained in the crash.
Dr. John Brick, a biological psychologist, testified as an expert on behalf of the State to the amount of alcohol defendant had consumed and its impact on her operation of the vehicle. He opined that he was able to determine, based on statements by the defendant, police and autopsy reports, as well as lab reports, that the defendant had consumed twenty-seven ounces of alcohol prior to the accident.
Based on the assumption that defendant began to drink at midnight and that she had consumed a total of twenty-seven ounces of wine, and based on the further assumption that she had food in her stomach at the time of the crash, Dr. Brick calculated that her blood alcohol content would have been between .16% and .19% at the time she crashed her car into the tree.
Dr. Brick explained to the jury that a driver's ability to safely control his or her vehicle would be impaired even when the blood alcohol level is as low as .02% and .03% and that even at these levels there is an increase in the relative risk for a crash. He further stated that by the time the level reaches .08% or .09%, virtually all drinkers experience some level of impairment. By the time the blood alcohol level reaches .15%, "[a person is] highly impaired in terms of [his or her] ability to drive" and "at a significantly increased risk for a crash."
Dr. Richard Saferstein, a forensic scientist, testified as an expert on behalf of the defendant, and opined that defendant's blood alcohol content at the time of the crash was within the then-existing legal limit. He made this determination based on the assumption that Eldridge began drinking at 12:45 a.m. and continued until 2:00 a.m. at a consistent rate. Based on his assumption that she had consumed a significant amount of food, he concluded that the intake of alcohol into her bloodstream would have been somewhat slowed. He testified that if she had taken her last drink at 2:00 a.m., and the alcohol was not absorbed until 120 minutes later, her blood alcohol level would have peaked at 4:00 a.m., the time of the blood test. He also testified that her blood alcohol level would therefore have been considerably lower, namely .09% at the time of the crash.
James Eastmond, an accident reconstruction expert, also testified for the defense. Based on the type of damage that occurred, Eastmond concluded that Eldridge's car was traveling approximately 40 to 45 miles per hour at the time of impact. Eastmond explained the concept of perception response time, which is the amount of time it takes a driver to detect and identify a road hazard, and affirmatively respond to that hazard. Explaining that accepted scientific research demonstrates that the average perception response time to an unexpected event while driving is 1.5 seconds, Eastmond concluded that a car moving at 45 miles per hour, would travel about 98.95 feet on average before a driver would be able to respond to an unexpected road hazard. According to the State, the tire track on the side of the road was at the most eighty-six feet.
A week after the crash, and one day after her release from the hospital, defendant gave a statement to Detective Sergeant Reginald Grant of the Monmouth County Prosecutor's Office. With two exceptions, discussed below, Eldridge's trial testimony was similar to the statement she gave to Detective Sergeant Grant on that day.
Defendant testified that on the day of the crash, she left work at a supermarket at approximately 4:30 p.m., and went to the home of her friend, Crystal Pullen. Defendant and Pullen then went to defendant's boyfriend's home, where his parents gave them food and a large box of wine. After picking up Biernacki and Green, the four of them went to Pullen's house, where defendant took two or three beverage cups out of her car and the box of wine from her trunk. At 1:00 a.m., Eldridge poured the wine, finishing not only her own cup, but because Biernacki did not drink, she and Green drank some of his wine as well. Defendant acknowledged on cross-examination that she had consumed twenty-eight ounces in five minutes. The four of them went to a bowling alley, where they remained briefly. From there, defendant, Green and Biernacki, without Pullen, drove to Bradley Beach, leaving after only twenty minutes because of the cold weather. It was on the way home from the beach that the crash occurred.
In her statement to Detective Sergeant Grant, Eldridge commented that as soon as she, Green and Biernacki got into her car, Biernacki rested his head on his hand and Green sat back in the seat and put his head on the headrest. At trial, she repudiated that statement.
In addition to that discrepancy between her statement to Detective Sergeant Grant and her trial testimony, was her description of Green's conduct in the car that night. In defendant's statement to Grant, she never mentioned Green's conduct. It is her trial testimony about Green causing the crash which forms the factual basis for her claim on appeal of a faulty jury charge:
Q: At about how long was it that you were traveling along till you hit the tree? How many minutes?
Q: Okay, now are these times all ...