July 20, 2007
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
ANTHONY GENTILELLO, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 03-01-0029.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 2, 2007
Before Judges Cuff, Winkelstein and Fuentes.
Defendant, Anthony Gentilello, was indicted by an Ocean County grand jury and charged with second-degree death by auto, N.J.S.A. 2C:11-5 (count one); three counts of third-degree assault by auto, N.J.S.A. 2C:12-1c(1) and (2) (counts two through four); and third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a(1) (count five).*fn1 At a jury trial that took place in July 2004, defendant was convicted of second-degree vehicular homicide (count one), and three counts of fourth-degree assault by auto, as lesser included offenses of third-degree assault by auto.
On direct appeal, we reversed defendant's conviction and remanded the matter for a new trial. State v. Gentilello, No. A-0671-04 (App. Div. Oct. 21, 2005), certif. denied, 186 N.J. 256 (2006). One of the issues raised on appeal was whether the trial court erred by allowing two police officers to testify that defendant was under the influence of drugs. As to that specific issue, we held:
While an officer not qualified as an expert is prohibited from testifying that an individual is under the influence of drugs, [the two police officers] clarified on cross-examination that they were not offering opinions that defendant was impaired by drugs. Thus, we find no abuse of discretion by the trial court in permitting the testimony. Nevertheless, on remand, should the officers testify at the new trial, each should be instructed before they testify not to render an opinion that defendant was under the influence of drugs. [Id. at 26. (internal citation omitted) (emphasis added).]
Upon remand, the trial court considered various pretrial motions, including a motion to dismiss the indictment because the State destroyed the motor vehicles that were involved in the accident; and a motion to suppress the testimony given by the arresting police officers regarding drug intoxication.
On October 6, 2006, the trial court delivered an oral opinion from the bench addressing the pretrial issues raised. In pertinent part, the court denied defendant's motion to dismiss the indictment, but allowed defendant, at trial, to move for an adverse inference charge to the jury regarding the destruction of the vehicles; and (2) prohibited the two arresting officers from giving opinions regarding whether defendant was under the influence of drugs.
By leave granted, the State now appeals from these two rulings. Specifically, the State raises the following arguments.
THE COURT BELOW ERRED IN SUA SPONTE ALLOWING DEFENDANT TO SEEK AN ADVERSE INFERENCE TO THE JURY ARISING FROM THE STATE'S FAILURE TO PRESERVE THE MOTOR VEHICLES INVOLVED IN THE HOMICIDE.
THE COURT BELOW ERRED IN ORDERING THAT POLICE OFFICERS MAY NOT QUALIFY TO TESTIFY AS TO THE DRUG INTOXICATION OF THE DEFENDANT.
After reviewing the record before us, and in light of prevailing legal standards, we affirm the trial court's ruling permitting defendant to seek an adverse inference charge at trial. In this respect, the trial court appropriately reserved a final decision on this application until all of the proofs necessary were brought before it. We reverse, however, the court's ruling prohibiting the arresting officers from testifying concerning drug intoxication. We remand this issue for the court to apply the standards articulated by the Supreme Court in State v. Bealor, 187 N.J. 574 (2006).
We first address the issue of the potential adverse inference charge. Before the start of the second trial, defense counsel faxed a consent order to the Ocean County Assistant Prosecutor representing the State requesting an opportunity to inspect the vehicles involved in the accident. Acting upon this request, the State discovered that, on October 19, 2004, defendant's vehicle had been inadvertently destroyed by defendant's insurance carrier.
Regarding decedent's car, the Ocean County Prosecutor's Office certified that it had "no records of the current whereabouts of the vehicle." In a supplemental certification, the Prosecutor's Office informed all parties that decedent's vehicle had been destroyed on or about November 15, 2005. Both vehicles had been inspected by the State expert in January 2003, prior to the first trial. Defense counsel did not request to inspect the vehicles until 2006.
Based on the limited discovery before it, the trial court found that the vehicles were not material evidence because defendant had never argued or asserted that the vehicles constituted exculpatory evidence. Defendant did not seek to inspect the vehicles until 2006; and only seeks the vehicles now to answer the report of the State's expert. The court also noted that during the first trial, defense counsel had actually commended the State's expert who inspected the vehicles on the comprehensive nature of his report.
The trial court also found no evidence of bad faith by the State. The vehicles were available for inspection by the defense for over five years before their inadvertent destruction. Accordingly, the trial court ruled that under the circumstances present and the prevailing law, the dismissal of the indictment against the defendant is not warranted; however, this Court will leave open for determination at trial an application by Defense for a charge to the jury that an adverse inference may be drawn from State's removal or disposal of the motor vehicles involved in this indictment. [(Emphasis added).]
The State argues that the trial court erred by ruling that defendant may seek an adverse inference charge at the time of trial. Specifically, the State contends that the ruling (1) was not requested by defendant; (2) is against Supreme Court precedent; and (3) will prejudice and confuse the jury. In our view, the State's concerns are unwarranted because, as framed by the trial court's ruling, the issue is not ripe for appellate review.
It is well-established that "[w]hen evidence in a criminal trial is destroyed, special scrutiny must be undertaken to ascertain whether defendant's right to due process has been prejudiced." United States v. Picariello, 568 F.2d 222, 227 (1st Cir. 1978). Based on the standard discussed in Picariello, we have established a three-prong test to determine whether a defendant's due process rights were prejudiced: "(1) whether the evidence was material to the issues of guilt or punishment; (2) whether defendant was prejudiced by its destruction; and (3) whether the government had acted in bad faith when it destroyed it." State v. Casele, 198 N.J. Super. 462, 469-70 (App. Div. 1985).
The materiality standard "is met only when the evidence possesses an apparent exculpatory value and is of such a nature that comparable evidence could not be obtained by other means."
State v. Serret, 198 N.J. Super. 21, 37 (App. Div. 1984), certif. denied, 101 N.J. 217 (1985).
Further, our Supreme Court has stressed the requirement of bad faith on the part of the State. The Court quoted the United States Supreme Court's holding that "requiring a defendant to show bad faith on the part of the police both limits the extent of the police's obligation to preserve evidence to reasonable bounds and confines it to that class of cases where the interests of justice most clearly require it, i.e., those cases in which the police themselves by their conduct indicate that the evidence could form a basis for exonerating the defendant." [State v. Marshall, 123 N.J. 1, 109 (1991) (quoting Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 337, 102 L.Ed. 2d 281, 289 (1988)), cert. denied, 507 U.S. 929, 113 S.Ct. 1306, 122 L.Ed. 2d 694 (1993).]
Reviewing courts have struggled with determining the proper remedy to be employed when a case satisfies the three-prong test. We have warned that the "draconian remedy" of dismissing an indictment should be used sparingly. State v. Peterkin, 226 N.J. Super. 25, 38 (App. Div.), certif. denied, 114 N.J. 295 (1988). In other words, "[a]n indictment should stand 'unless [it] is palpably defective.'" Ibid. (quoting State v. Russo, 6 N.J. Super. 250, 254 (App. Div.), certif. denied, 4 N.J. 456 (1950)).
A potentially less-drastic alternative is to charge the jury with an adverse inference, as was the proposed remedy in Marshall. In Marshall, the defendant was charged with conspiring to have his wife murdered. The defendant allegedly planned to feign car trouble and park in a picnic area, where his accomplice would hit the defendant, kill his wife, and then slash the car's tires to support the defendant's story of car trouble. Id. at 29. The defendant claimed that, while inspecting the tire in question, the State's forensic expert damaged it so severely that his expert could not properly examine it, which he claims frustrated his right to a fair trial. Id. at 105. Our Supreme Court found no bad faith on the part of the State in damaging the tire while inspecting it, and, thus, refused to order that an adverse inference charge be given. Id. at 110.
Here, the trial court, preliminarily, found no materiality and no bad faith. It did not rule that the jury would definitely be charged with an adverse inference, but instead ruled that defendant would be allowed to seek an adverse inference charge at trial. The final decision would be made after considering all the appropriate proofs presented at trial.
There is no basis for the State's argument that the trial court's failure to find bad faith prohibits it from allowing defendant to seek an adverse inference charge at trial. Unlike the Supreme Court in Marshall, we have not been presented here with the issue of whether the jury should be charged with an adverse inference because the trial court did not yet make that judgment. Thus, the only issue before us is whether the trial court erred in leaving the option open for such a charge, pending further evidence. Although the trial court may determine later that there was indeed no bad faith, it must first be given the opportunity to analyze all the appropriate proofs.
Further, because the trial court has not yet ruled whether an adverse inference charge will actually be permitted, we are not required to apply the Casele three-prong test. Once the proofs are submitted at trial, the court should then apply the three-prong test to determine whether defendant's due process rights were prejudiced, and, thus, whether an adverse inference charge is appropriate. The decision under review in this appeal merely involved a preliminarily finding of no materiality and no bad faith. The trial court did not make a final determination as to whether the jury should be charged with an adverse inference.
We now turn to the trial court's ruling prohibiting the two arresting officers from testifying about defendant's impaired sobriety based on possible ingestion of drugs. The State argues that the trial court erred by ruling that the officers would not be able to testify as to drug intoxication because the Supreme Court decision in Bealor supersedes our opinion ordering the trial court not to allow the officers to testify regarding drug intoxication. Defendant responds that the decision in Bealor does not supersede this court's order because Bealor is based on the specific facts of that case. We agree with State's argument and reverse.
In State v. Bealor, 377 N.J. Super. 321, 329 (App. Div. 2005), rev'd, 187 N.J. 574 (2006), we held that alcohol intoxication "is a sufficiently common condition that we may accept lay witnesses' testimony as to their observations and opinions that the defendant was intoxicated in the absence of a breathalyzer or blood alcohol test," but that intoxication by narcotic, hallucinogen, or habit-producing drug, specifically marijuana, "is not a matter of common knowledge such that an inference of intoxication may be drawn solely from a lay witness's testimony respecting defendant's behavior."
By contrast, we held that "a per se rule cannot be applied to a DWI charge involving marijuana in the absence of any evidence as to the effect of marijuana on defendant's behavior or physical appearance." Id. at 330. We concluded that if the State had produced expert testimony--or even lay testimony from the trooper based upon his training, knowledge and experience--respecting the effects of marijuana intoxication on defendant's behavior, physical appearance and condition, it would have met its burden of proving beyond a reasonable doubt that defendant was driving under the influence of marijuana. [Id. at 331.]
In reversing our holding, the Supreme Court reaffirmed the rule that lay opinion alone is not enough to prove marijuana intoxication. Bealor, supra, 187 N.J. at 576. The Court held, however, that competent lay observations of the fact of intoxication, coupled with additional independent proofs tending to demonstrate defendant's consumption of narcotic, hallucinogenic or habit-producing drugs as of the time of the defendant's arrest, constitute proofs sufficient to allow the fact-finder to conclude, without more, that the defendant was intoxicated beyond a reasonable doubt and, thereby, to sustain a conviction under N.J.S.A. 39:4-50. [Ibid.]
The Supreme Court specifically rejected the rule adopted by this court, "that the nexus between the facts of intoxication and the cause of intoxication can only be proved by expert opinion," finding that such a rule "impermissibly impinges on the traditional role of the fact-finder and is explicitly disavowed." Id. at 591.
Noting that while expert testimony is still the preferred method of proof of drug intoxication, the Court held that New Jersey police officers are eligible to qualify as experts on marijuana intoxication under N.J.R.E. 702 because their required training includes a course in detecting drug-induced intoxication. Id. at 592-93.
Here, our opinion directing the trial court not to allow the police officers to render an opinion on defendant's marijuana intoxication was issued before the Supreme Court released its decision in Bealor. Upon remand, the trial court properly analyzed the Supreme Court's decision in Bealor and acknowledged that New Jersey police officers are eligible to qualify as experts on marijuana intoxication. Nevertheless, the trial judge felt constrained to strictly apply this court's order not to allow the arresting officers to render an opinion regarding defendant's drug intoxication.
Given the holding in Bealor, the trial court is required to evaluate the officers' qualifications for testifying, in conjunction with considering and analyzing other evidence of marijuana intoxication.
Thus, we are compelled to reverse the trial court's ruling prohibiting the officers from testifying as to drug intoxication because the court did not conduct its own independent analysis under Bealor, and, based its ruling solely on our remand order. This issue is remanded to the trial court for consideration and analysis pursuant to the Supreme Court guidelines in Bealor.
Affirmed in part. Reversed in part. Remanded for trial consistent with this opinion.