On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Ind. No. 05-06-1486.
The opinion of the court was delivered by: Weissbard, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Weissbard, Graves and Lihotz.
On June 24, 2005, after five days of testimony, a grand jury voted to indict defendant for third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1) (count 1); third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and b(5) (count 2); third-degree distribution of a CDS, N.J.S.A. 2C:35-5a(1) and b(5) (count 3); first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(7) (count 4); and second-degree reckless manslaughter, N.J.S.A. 2C:11-4b(1) (count 5).
Thereafter, defendant moved to suppress physical evidence and statements and to dismiss the reckless manslaughter charge.
On April 27, 2006, the motion judge found: (1) that certain evidence (marijuana and a scale), which was found in defendant's dresser drawers, should be suppressed; (2) that statements made by defendant to the police should not be suppressed; and (3) that count 5 of the indictment (reckless manslaughter) should be dismissed. We granted the State's motion for leave to appeal the interlocutory order dismissing the reckless manslaughter indictment. Although our reasons differ from that of the motion judge, we affirm.
Several witnesses were called before the grand jury to testify to the events surrounding the death of A.R. The following includes facts asserted by witnesses during the five days of testimony on the matter.
At approximately 7:00 p.m. on Saturday, October 18, 2003, seventeen-year-old A.R. went to the home of twenty-year-old defendant Michael Lisa, purchased methadone from him, and ingested at least one tablet. Defendant had previously purchased fifty methadone pills from Doug Smith, to whom he had been referred by a co-worker. Each pill contained a forty-milligram dose, and was segmented in order that it might be easily broken into four separate pieces. According to Smith, at the time of purchase, defendant told him that he was purchasing the methadone for his personal use. Defendant explained to Smith that he knew the drug was used as a pain killer, knew that the drug was addictive, and knew that it should not be taken with alcohol.
A.R. was acquainted with defendant and had "hooked up" with him once or twice prior to October 18, 2003. After taking the first dose of methadone, A.R., along with numerous friends, then proceeded to attend several parties, where she drank wine and beer, and smoked marijuana.
A few hours later, A.R. began itching profusely, which is a symptom of methadone withdrawal. She announced to her friends that she wanted to go to defendant's home. Shortly before 3:00 a.m., A.R. and her friends arrived at the home of defendant. The group congregated in the basement where they drank beer and played guitar. A.R. sat on defendant's lap and flirted with him. Her pupils were almost fully dilated.
Apparently, A.R. continued to scratch herself and was described as being "wired." A.R. was heard saying that she "wanted more" and asking defendant "[i]s there any more?"
Approximately twenty-five minutes after her arrival at defendant's residence, A.R. and defendant began to go upstairs together. Several of A.R.'s friends wanted to leave, and A.R. was asked if she wanted to leave with them. She declined, held hands with defendant, and proceeded upstairs with him.
At this point, three of A.R.'s friends departed. Vinny Mercuri and Tom Spinelli remained. Shortly after defendant and A.R. were seen climbing the stairs, Mercuri went to look for A.R. The door at the top of the basement steps was unlocked. Mercuri proceeded through the door and up another flight of stairs where he came upon defendant's bedroom. The door was closed. Mercuri knocked on the door. When defendant opened the door, Mercuri saw A.R., who appeared to be intoxicated, leaning back on defendant's bed.
Defendant told Mercuri that he and A.R. needed privacy. Mercuri asked, "[w]hat do you mean privacy?" A.R. stated that she and defendant needed to discuss something. Defendant closed the door and Mercuri went back to the basement.
After about ten minutes, Mercuri again attempted to go to speak with A.R. Again, the door at the top of the basement stairs was unlocked. Mercuri proceeded to defendant's bedroom. He knocked on the door, but no one answered. He did not hear any conversation or movement coming from the bedroom. The bedroom door was locked. Mercuri returned to the basement.
Soon thereafter, defendant came running down into the basement. He momentarily disappeared into a second room in the basement. Defendant did not communicate with Mercuri, Spinelli, or defendant's friend Adam Krentzman, who was also present but seemingly "passed out" on the couch. Mercuri attempted to follow the defendant. Yet, when he reached the top of the basement steps, the door, which was previously unlocked, was now locked. Mercuri and Spinelli left through another exit, which led directly to the exterior of the home.
At about 4:30 a.m. to 4:45 a.m., defendant entered the basement and woke his friend, Krentzman. Defendant told Krentzman, "I got a problem. Can you come upstairs?" When the two arrived at defendant's bedroom, Krentzman realized A.R. was passed out on defendant's bed. Krentzman described defendant as nervous. Defendant stated that he and A.R. had had sex and that after sex, while they were lying on his bed talking, A.R. passed out.
Defendant also explained that he had redressed A.R. by putting on her bra, underwear, and pants. In an attempt to awaken A.R., Krentzman and defendant shook her, slapped her face, and called her name. When A.R. remained unresponsive, Krentzman suggested they call 9-1-1. Defendant responded, "[m]aybe she'll sleep it off."
Defendant and Krentzman proceeded to fall asleep in the bed, with A.R. lying between them. Defendant and Krentzman awoke at 12:30 p.m. Once again, they tried to rouse A.R. They threw water on her and slapped her face. Other than a quiet snore, A.R. did not respond. Again Krentzman suggested calling 9-1-1. Defendant replied, "[w]ait it out, wait it out. See if she'll sleep it off."
Thereafter, defendant left the home and purchased ammonia to put under A.R.'s nose to revive her. The ammonia was not effective. Defendant also called a nurse, with whom he was acquainted, for advice on the situation. The nurse told defendant to call 9-1-1. Defendant ignored the nurse's advice.
Over the next several hours, defendant and Krentzman stayed in defendant's room, played video games, watched football, and periodically checked A.R. to "make sure she was okay." They also propped her up in the bed to help her breathe easier. Although she slumped over several times, defendant and Krentzman continued to prop her up. Occasionally, her head would twitch or slightly spasm.
During the early morning hours, before defendant summoned Krentzman, while defendant and A.R. were alone in defendant's room, A.R. and defendant crushed up one of defendant's forty-milligram methadone tablets and snorted it together. According to Krentzman, defendant believed he was responsible for A.R.'s condition because he thought the methadone was the cause of her inability to breathe. Krentzman explained that defendant did not want to summon 9-1-1 because he was fearful of liability. Krentzman also stated that, based on statements made to him by defendant, Krentzman was "positive" that defendant had sex with A.R. at least twice that night, "possibly more."
Although defendant's parents were in the home during the entire course of events, defendant never revealed A.R.'s presence until emergency aid was finally summoned at approximately 5:00 p.m. Police arrived at 5:10 p.m. At that time, A.R. was unresponsive and unconscious. Defendant told police that A.R. and friends arrived at his home at approximately 3:00 a.m. and that it appeared they had been drinking alcohol prior to their arrival. He insisted that A.R. had not consumed anything at his home other than a pill she retrieved from a prescription bottle in her purse. Defendant told police that A.R. took this pill at 3:30 a.m.
Defendant further stated that he and A.R. "hung out" in his bedroom for twenty minutes before Krentzman joined them. Defendant told police that, while he and Krentzman were playing video games, A.R. fell asleep on his bed. At this time, defendant did not tell police that he gave A.R. methadone or that the two had sex. Later, defendant admitted to another officer that he had sex with A.R., maintaining that it was "regular" consensual intercourse.
While in defendant's bedroom, police observed a half-dollar sized stain on the bed sheet, which appeared to be blood. They also noticed several empty condom wrappers on the floor, and a blood stained tampon*fn1 as well as a marijuana-filled cigar blunt located in the waste basket.
Medics performed advanced life support until A.R. was transported by ambulance to Kimball Medical Center. Upon arriving at the hospital, A.R.'s temperature had fallen to eighty-seven degrees Fahrenheit. By that time, A.R. had a strong pulse, but a blood pressure could not be measured, and she was experiencing major organ failure.
A sexual assault examination was performed. The exam revealed numerous tears to the vagina, cervix, and perineal tissue, as well as one tear inside the anus. According to the State's nursing expert, a sexual assault examiner, these types of tissue tears cause significant pain. People engaged in sexual intercourse typically reposition themselves to minimize pain, if necessary. When a person does not (or cannot) move in order to reposition themselves, the likelihood of pain and injury increases. Particularly, with regard to the cervix, a substantial amount of force and trauma are required to cause it to tear. A.R.'s injuries were deemed to have occurred within twenty-four hours of the examination. The nurse testified that of the 150 patients she has examined and approximately 1,000 charts she has reviewed, A.R. suffered "by far the most injuries [she has] ever seen on one person after a report of an assault." She had only observed a tear of the cervix in one other case.
Specimens were retrieved from A.R.'s vagina, cervix, and anus, all of which tested positive for spermatozoa. DNA samples were taken from defendant and Krentzman for comparison purposes. Defendant was identified as the source of the DNA found in the vaginal specimen. The DNA contained in the cervical and anal specimens were determined to be a mixture of A.R.'s DNA and defendant's DNA. Defendant was also identified as the source of semen found on the sheets and on A.R.'s pants. Krentzman was excluded as a possible contributor to all of the aforementioned specimens, except the specimen taken from A.R.'s bra.
By the time A.R. was admitted to the hospital, she had already suffered severe brain damage and was almost clinically dead. If paramedics had not administered CPR, A.R. would have died in defendant's bedroom. In the days that followed, she was on a respirator, her brain function ceased, and her major organ systems failed. A.R. died on October 29, 2003.
Upon conducting an autopsy, the medical examiner (M.E.) concluded that the cause of death was multi-organ system failure caused by ethanol and drugs. The causative drugs were methadone, methamphetamine, amphetamine and benzodiazepine. The M.E. specifically found that methadone contributed to A.R.'s death.
The M.E. explained that the methadone, alcohol consumption, and benzodiazepine all worked together to suppress A.R.'s ability to breathe properly. During the approximately twelve hours that A.R. was unconscious and without medical attention, the oxygen in her blood gradually decreased, eventually causing brain death. The M.E. concluded that A.R.'s chance of survival would have increased had medical attention been summoned when A.R. first lost consciousness between 4:30 a.m. and 5:00 a.m.
Defendant's motion to dismiss the reckless manslaughter count was based on the assistant prosecutor's charge to the grand jury, which was said to be legally deficient. Because of its importance to the discussion which follows, we set out the instruction in full:
One charge for your consideration in this case is reckless manslaughter. "A person is guilty of reckless manslaughter if he recklessly causes the death of another person." In order for you to determine whether the defendant should be charged with reckless manslaughter, you must decide whether evidence has been presented that shows (1) the defendant engaged in conduct that caused the victim's death, and (2) that the defendant did so recklessly.
The first element the defendant engaged in conduct that caused the victim's death. That's the first thing you have to look at. "Conduct means an action or omission or a series of actions or omissions. Action means a bodily movement, whether voluntary or involuntary. Omission means the failure to act. The law provides that criminal liability for an offense may not be based on an omission or a failure to act unaccompanied by action unless a duty to perform the omitted act is otherwise imposed by the law."
In this case, the State is alleging that the defendant had a duty to provide emergency medical care for the victim, A.R. He failed to perform that duty, and that failure was a cause of the victim's death. It's up to you to determine from the evidence whether there is probable cause that such a duty existed.
Insofar as the law of duty is concerned, I instruct you as follows. Generally one has no legal duty to aid another person in peril, even when that aid can be rendered without danger or inconvenience to himself. However, there are situations that give rise to a duty to act.
A person has a duty to act where he has voluntarily assumed the care of another and so secluded the helpless person as to prevent others from rendering aid. For example, a duty to act may be triggered where the defendant takes the victim from a place where others might have taken care to prevent injury to her to a private place where the defendant alone is to provide such care. A duty to act may be triggered where the defendant makes statements or engages in conduct that prevents another person from seeking aid to the victim.
(2) A person has the duty to act when the person is responsible for placing the victim in the position of danger or peril. If the person knows or has reason to know that by his conduct he has caused bodily harm to another [so] as to make her helpless and in danger of further harm, the person is under a duty to exercise reasonable care to prevent such further harm.
Additionally, if a person doesn't act and subsequently realizes or should realize that it has created an unreasonable risk of physical harm to another, he is under a duty to exercise ...