August 6, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LUIS HERNANDEZ, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 04-03-323.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 24, 2007
Before Judges Coburn, R. B. Coleman and Gilroy.
Defendant, Luis Hernandez, appeals from his conviction and sentence on first degree death by auto, contrary to N.J.S.A. 2C:11-5(b)(3) (count one); third degree leaving the scene of a motor vehicle accident resulting in death with a suspended driver's license, contrary to N.J.S.A. 2C:11-5.1 (count two); third degree operating a motor vehicle that was involved in a motor vehicle accident resulting in death with a suspended driver's license, contrary to N.J.S.A. 2C:40-22a (count three); first degree aggravated manslaughter, contrary to N.J.S.A. 2C:11-4a(2) (count four); second degree eluding, contrary to N.J.S.A. 2C:29-2b (count five); and third degree endangering an injured victim, contrary to N.J.S.A. 2C:12-1.2a (count six).
On November 21, 2003, defendant, driving a minivan, was pulled over by Clifton Police Officer John Samra. Because defendant did not have a valid driver's license, he panicked and drove away from the officer, who gave chase on his motorcycle. While speeding through a residential neighborhood, defendant's minivan collided with the officer's motorcycle, causing the police officer to be thrown from the motorcycle to his death. Defendant jumped out of his vehicle and attempted to run away, but was brought back to the scene by two witnesses. Defendant later agreed to give blood and urine samples to the police, and waived his Miranda*fn1 rights.
After a trial before Judge Edward V. Gannon and a jury, defendant was found guilty on all counts. On August 26, 2005, defendant, who had an extensive criminal history, was sentenced on count one to an extended term of life imprisonment subject to the No Early Release Act (NERA), and five years of parole supervision on count one. On count two, defendant was sentenced to a consecutive term of five years. A term of five years, which was to run consecutive to count one and concurrent to count two, was imposed on count six. A concurrent term of five years was imposed on count three and a concurrent term of twenty years, subject to NERA parole ineligibility, was imposed on count four. The defendant's conviction for eluding on count five was merged. The aggregate custodial sentence imposed was life imprisonment, subject to the NERA period of parole ineligibility, plus five years.
On appeal, defendant contends:
POINT I: THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL AT THE END OF THE STATE'S CASE ON COUNT ONE CHARGING DEATH BY AUTO (VEHICULAR HOMICIDE).
POINT II: ALL OF THE DEFENDANT'S ORAL, WRITTEN, AND RECORDED STATEMENTS MADE TO DETECTIVE MAROTTA AT THE PROSECUTOR'S OFFICE SHOULD HAVE BEEN SUPPRESSED.
(A) THE TRIAL COURT ERRED IN RULING THAT THE DEFENDANT DID NOT HAVE TO BE READVISED OF HIS MIRANDA RIGHTS AFTER HE WAS TAKEN BACK TO THE PROSECUTOR'S OFFICE AND REPEATEDLY QUESTIONED.
(B) DETECTIVE MAROTTA ENGAGED IN IMPERMISSIBLE SOLICITOUS CONDUCT.
POINT III: DR. COHN'S "EXPERT TESTIMONY" THAT THE DEFENDANT WAS NOT FIT TO OPERATE A MOTOR VEHICLE "SAFELY" CONSTITUTED AN INADMISSIBLE NET OPINION (NOT RAISED BELOW). POINT IV: THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BY COMMENTS MADE BY THE PROSECUTOR IN SUMMATION (NOT RAISED BELOW).
(A) THE PROSECUTOR MISREPRESENTED THE TESTIMONY OF DR. SAFERSTEIN (NOT RAISED BELOW).
(B) THE PROSECUTOR DILUTED THE STATE'S BURDEN OF PROOF AND THE DEFENDANT'S PRESUMPTION OF INNOCENCE BY REPEATEDLY TELLING THE JURY THAT THERE WAS "ABSOLUTELY NO DOUBT" OF THE DEFENDANT'S GUILT (NOT RAISED BELOW).
POINT V: THE AGGREGATE LIFE SENTENCE WITH A NERA PERIOD OF PAROLE INELIGIBILITY PLUS FIVE (5) YEARS IMPOSED ON THE DEFENDANT'S CONVICTIONS WAS MANIFESTLY EXCESSIVE, REPRESENTED AN ABUSE OF THE TRIAL COURT'S SENTENCING DISCRETION, AND VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER BLAKELY V. WASHINGTON AND STATE V. NATALE.
(A) THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING THE DEFENDANT TO AN EXTENDED TERM AS A PERSISTENT OFFENDER ON THE DEFENDANT'S CONVICTION FOR FIRST DEGREE DEATH BY AUTO (VEHICULAR HOMICIDE) ON COUNT ONE.
(B) IMPOSITION OF THE DISCRETIONARY EXTENDED TERM VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER BLAKELY V. WASHINGTON AND STATE V. NATALE.
(C) IMPOSITION OF BASE SENTENCES THAT EXCEEDED WHAT HAD BEEN THE PRESUMPTIVE TERMS FOR CRIMES OF THE THIRD DEGREE ON COUNTS TWO, THREE, AND SIX, VIOLATED THE DEFENDANT'S RIGHTS UNDER STATE V. NATALE.
(D) THE TRIAL COURT ABUSED ITS DISCRETION BY NOT RUNNING ALL SENTENCES IMPOSED CONCURRENT WITH EACH OTHER.
(E) THE TRIAL COURT FAILED TO ADEQUATELY ARTICULATE ITS REASONS FOR IMPOSING THE MAXIMUM EXTENDED TERM SENTENCE ON THE DEFENDANT'S CONVICTION FOR VEHICULAR HOMICIDE ON COUNT ONE.
After carefully considering defendant's arguments, in light of the facts and the applicable law, we affirm, except that we remand for re-sentencing in compliance with State v. Natale, 184 N.J. 458 (2005).
Defendant contends that the trial court abused its discretion in denying his motion for a judgment of acquittal on the count charging vehicular homicide at the end of the State's case. He argues that the State failed to show: (1) that defendant was under the influence of a narcotic, hallucinogenic, or habit producing drug, contrary to N.J.S.A. 39:4-50; and (2) that defendant was operating an automobile within 1000 feet of a school. The vehicular homicide statute, N.J.S.A. 2C:11-5, provides, in pertinent part:
a. Criminal homicide constitutes vehicular homicide when it is caused by driving a vehicle or vessel recklessly.
Proof that the defendant was driving while intoxicated in violation of [N.J.S.A.] 39:4-50 . . . shall give rise to an inference that the defendant was driving recklessly. . . .
b. . . . vehicular homicide is a crime of the second degree.
(1) If the defendant was operating the auto or vessel while under the influence of any intoxicating liquor, narcotic, hallucinogenic or habit-producing drug[.]
(3) Vehicular homicide is a crime of the first degree if the defendant was operating the auto or vessel . . . while in violation of [N.J.S.A.] 39:4-50 . . . while:
(a) on any school property used for school purposes . . . within 1,000 feet of such school property[.]
The court must grant a motion to acquit if "the evidence is insufficient to warrant a conviction." R. 3:18-1. Thus, the trial judge must deny the motion to acquit if "viewing the State's evidence in its entirety" and giving the State the benefit of all reasonable inferences, "a reasonable jury could have found guilt beyond a reasonable doubt." State v. Reyes, 50 N.J. 454, 458-59 (1967). Appellate courts apply the same standard as the trial court to decide if the trial judge should have acquitted defendant. State v. Moffa, 42 N.J. 258, 263 (1964).
In this matter, there was sufficient evidence produced during the State's case upon which the jury could have based a finding of driving under the influence. Cocaine or heroin or their metabolites, benzoylecgonine and morphine, may be considered narcotics, hallucinogenics, or habit producing drugs. In State v. Di Carlo, 67 N.J. 321, 327 (1975), the Court defined "narcotic" as:
1: a drug . . . that in moderate doses allays sensibility, relieves pain and produces profound sleep but that in poisonous doses produces stupor, coma or convulsions. 2: something that soothes, relieves or lulls. [Webster's Third International Dictionary (Unabridged) 1503 (1971).]
An agent that produces insensibility or stupor. [Dorland's Medical Dictionary 982 (1965).]
A medical substance or drug which when taken in sufficiently large doses, produces profound stupor or complete insensibility. In smaller doses, it relieves pain without causing stupor. It also induces sleep. [2 Schmidt's Attorney's Dictionary of Medicine N-2 (1974).]
Here, the testimony presented at trial sufficiently established beyond a reasonable doubt that cocaine or heroin or their metabolites, benzoylecgonine and morphine, are "narcotic" drugs.
Dr. Richard Cohn, qualified as an expert in the field of pharmacology and forensic toxicology, testified to the presence of cocaine metabolite and benzoylecgonine, which gets into one's blood by taking cocaine, in defendant's blood and urine samples. Dr. Cohn also testified to the effects cocaine has on the body and stated that the eight hundred and ninety-one nanograms of benzoylecgonine in defendant's blood specimen was "very significant" and indicated that cocaine had been taken within a "matter of hours" before the crash. Dr. Cohn opined the morphine in defendant's urine is "reflective" of defendant's having ingested heroin, a controlled substance. He also noted that defendant admitted to having ingested three dime bags of heroin at approximately 1:00 a.m. the morning of the collision.
In addition to the medical testimony, there was evidence that defendant's operation of his vehicle and other behavior was symptomatic of one who was under the influence of those narcotics. Multiple witnesses testified to defendant's erratic driving, and to his flight following the collision. In defendant's own typewritten statement and videotaped interview, defendant admitted he fled from Officer Samra because he was "scared". Upon review of the testimony of the eyewitnesses, Dr. Cohn, and the police officers, there was sufficient evidence that defendant was under the influence of a narcotic, hallucinogenic, or habit producing drug.
Detective Chad Wells identified St. Paul's, as an open and functioning elementary school, located at the intersection of Washington Avenue and Maple Avenue in Clifton. The detective testified that, based upon his personal observation, St. Paul's elementary school is approximately 600 feet from the scene of the crash. His testimony, together with the aerial view map with a scale thereon, was sufficient for the jury to determine that the accident occurred within 1000 feet of the school.
Defendant contends that all of his oral, written, and recorded statements made to Detective William Marotta at the Prosecutor's Office should have been suppressed by the trial court. He argues that, although he was advised of his Miranda rights at the hospital by Detective Marotta at 11:33 a.m., he should have been advised again of those rights before he was permitted to give further statements at 2:00 p.m. and at 3:52 p.m.
The Fifth Amendment provides that no person "shall be compelled in any criminal case to be witness against himself."
Miranda, supra, 384 U.S. at 461, 86 S.Ct. at 1621, 16 L.Ed. 2d at 716. The Court's fundamental aim in designing the Miranda warnings was to assure that the individual's right to choose between silence and speech remains unfettered throughout the interrogation process. Id. at 469, 86 S.Ct. at 1625, 16 L.Ed. 2d at 721. However, a suspect may waive his Fifth Amendment privilege, if he or she does so knowingly, intelligently and voluntarily. Id. at 475, 86 S.Ct. at 1628, 16 L.Ed. 2d at 724; State v. Kennedy, 97 N.J. 278, 286 (1984).
Detective Marotta testified that he identified himself to defendant on the morning in question, and informed defendant that he was under arrest for leaving the scene of an accident. The detective rode with defendant to the hospital, and he did not appear to be dazed or in shock and he appeared to understand what was occurring while at the hospital. Defendant read the Miranda form to himself, and then told the officer that he understood his rights and was willing to waive them. The detective went through each line of the Miranda form, and had defendant initial each line. Defendant wrote "yes" to a question asking him if he understood each of his Miranda rights, and then signed the bottom of the form.
Before the statement given at 2:00 p.m., the detective questioned defendant about his Miranda rights, and defendant made no objection to his earlier waiver. Defendant never said he did not want to speak to the police, and he never requested a lawyer. The subject of defendant's Miranda waiver was again raised at the beginning of his 3:52 p.m. videotaped statement, and defendant again made no objection. The entire interview occurred within a few hours and lacked any element of coercion. Absent any events of an intervening nature, an officer need not re-advise a defendant of his Miranda rights if it was part of a "continuing pattern of interactions between the defendant and police, and during that continuing sequence of evidence[.]" State v. Dispoto, 189 N.J. 108, 124-25 (2007). Here there was a continuing sequence of events from the time defendant was arrested to the time he gave his second statement.
This court gives substantial deference to the trial judge's exercise of discretion on evidentiary rulings. See, e.g., Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div.), certif. denied, 163 N.J. 79 (2000). "Findings by the trial judge are considered binding on appeal when supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). There is sufficient credible evidence in this record to support a finding that defendant was advised of his Miranda rights, that he understood those rights, and that he chose to voluntarily and intelligently waive his rights. Therefore, defendant's statements were properly admitted into evidence.
Defendant argues that Detective Marotta engaged in impermissible solicitous behavior by giving defendant the illusion that the police were going to help him as a result of his giving voluntary statements. Where police officers engage in unfair action, a defendant may be pressured into giving a statement, thus raising the possibility that the statement is inadmissible. State v. Roach, 146 N.J. 208, 227 (1996), cert. denied, 519 U.S. 1021, 117 S.Ct. 540, 136 L.Ed. 2d 424 (1996).
Detective Marotta testified that he told defendant about the importance of telling the truth for both himself and for others and that he spoke with defendant's girlfriend, Alicia Alvarado, and told her to explain to defendant the importance of being completely truthful, since a police officer had died. Detective Marotta testified that he did not tell defendant's girlfriend to say anything, other than to tell defendant to tell the truth. The trial judge found Detective Marotta to be a credible witness, and there is no evidence that the detective said or suggested to defendant that defendant would be helped in some way if he told the truth.
When a confession is being challenged, the court must decide whether that confession "results from a change of mind rather than from an overbearing of the suspect's will." State v. Galloway, 133 N.J. 631, 655 (1993). A court reviews the totality of circumstances in the confession, including "the suspect's age, education and intelligence, advice concerning constitutional rights, length of detention, whether the questioning was repeated and prolonged in nature, and whether physical punishment and mental exhaustion were involved." Id. at 654. There is no evidence that defendant was exposed to "substantial psychological pressure", physical punishment or mental exhaustion. Id. at 654-55. Detective Marotta had no reason to believe defendant would be particularly vulnerable to interrogation. Defendant was thirty-nine years old, with a tenth grade education, and was experienced with the criminal justice system. Defendant was not deprived of food or drink, and questioning lasted only a few hours. Since there is no reasonable, credible evidence that the detective engaged in impermissible conduct, defendant's statements were properly admitted.
Defendant argues that the expert testimony of Dr. Cohn that one who ingests cocaine and heroin is not fit to operate a motor vehicle safely constituted an inadmissible net opinion. Based on a hypothetical question, Dr. Cohn opined that, in a situation such as this one, a person who ingested heroin and cocaine "would be incapable of safely operating a motor vehicle."
The net opinion rule forbids the admission of an expert witness's conclusions that are unsupported by factual evidence. State v. Papasavvas, 163 N.J. 565, 607 (2000). However: the opinion of an expert can be admitted in evidence if it relates to a relevant subject that is beyond the understanding of the average person of ordinary experience, education, and knowledge. If the expert's testimony on such a subject would help the jury understand the evidence presented and determine the facts, it may be used as evidence. The witness offered as an expert must, of course, be suitably qualified and possessed of sufficient specialized knowledge to be able to express such an opinion and to explain the basis of that opinion. Once it is determined that this testimony will genuinely aid the jury, it can be admitted.
[State v. Odom, 116 N.J. 65, 70-71 (1989).]
Here, Dr. Cohn's testimony was based on facts and circumstances contained within a hypothetical. Thus, the testimony of Dr. Cohn was appropriately admitted because his testimony covered a subject that was within his specialized knowledge and expertise, and generally beyond the understanding of persons with average knowledge, education and experience. His testimony was relevant and assisted the jury in understanding the evidence that established the likely effect of the ingestion of heroin and cocaine upon a driver. His testimony was reasonably required to assist the jury in determining whether defendant was operating his motor vehicle at the time of the collision while under the influence of narcotics, within the meaning of N.J.S.A. 39:4-50, and was thus properly admitted.
Defendant contends that his right to a fair trial was prejudiced by comments made by the prosecutor in summation. The alleged prejudice arises from: (1) the prosecutor repeatedly telling the jury that there was "absolutely no doubt" of the defendant's guilt, thereby diluting the State's burden of proof and the defendant's presumption of innocence; and (2) the prosecutor misrepresenting the testimony of Dr. Saferstein in his summation. Since no objections were made below regarding the summation, these contentions are reviewed under a plain error standard whereby defendant must show the errors were "clearly capable of producing an unjust result." R. 2:10-2. Defendant has failed to make such a showing and, therefore, his arguments must be rejected.
Prosecutors are generally afforded considerable leeway in summation, as long as their comments are reasonably related to the scope of the evidence presented. State v. Harris, 141 N.J. 525, 559 (1995). A prosecutor is "entitled to sum up the State's case graphically and forcefully." State v. Marquez, 277 N.J. Super. 162, 171 (App. Div.), certif. denied, 141 N.J. 99 (1995) (citation omitted). However, a prosecutor is guilty of misconduct if he implies to the jury that he possesses knowledge beyond that contained in the evidence presented, or if he reveals that knowledge to the jury. State v. Rose, 112 N.J. 454, 519 (1988).
The prosecutor's remarks on Dr. Saferstein's testimony were accurate, since the doctor conceded that defendant's actions could have been the result of coming off of a cocaine high. The prosecutor's repeated statements that there was no doubt as to defendant's guilt were based on the evidence in the record. In each matter, the prosecutor would review the evidence related to each charge, and give his conclusion. There is no evidence that the prosecutor suggested he knew something about the guilt of defendant other than as shown by the evidence, and he never said or implied that the jury had a duty to convict defendant. The prosecutor cited the evidence in the record, and expressed conclusions that could reasonably have been drawn by the jurors concerning defendant's guilt. Neither of these alleged improprieties was brought to the attention of the trial court and neither was improper in our view, and certainly not so egregious that it was "clearly capable of producing an unjust result."
Finally, defendant argues that his sentence was manifestly excessive, represented an abuse of the trial court's sentencing discretion, and violated his constitutional rights. Initially, we note that the Supreme Court has eliminated the requirement that the court find a need to protect the public from further acts of violence from the defendant as a prerequisite under the discretionary extended term statute. State v. Pierce, 188 N.J. 155 (2006). On the other hand, we agree that defendant's sentence should be remanded for reconsideration in light of State v. Thomas, 188 N.J. 137 (2006), because the sentences imposed for counts two, three and six exceed the previous presumptive terms for third degree convictions and the court's reasons for imposing maximum terms are not clear. In accordance with Natale, the court should reassess defendant's sentence within the extended-term range based on the aggravating and mitigating factors found to be present. Id. at 154. Defendant's other contentions regarding his sentence are without sufficient merit to warrant discussion in a written appeal. R. 2:11-3(e)(2).
Affirmed, as to guilt; reversed and remanded for sentencing only.