On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 01-06-2751.
The opinion of the court was delivered by: Parker, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Parker and R. B. Coleman.
Defendant Sky Atwater, a/k/a Tyrone Johnson, appeals from a judgment of conviction entered on July 16, 2004 after a jury found him guilty on two counts of first degree vehicular homicide, N.J.S.A. 2C:11-5b(1), (2) and (3) (Counts 2 and 5); and two counts of third degree leaving the scene of an accident, N.J.S.A. 2C:11-5.1 (Counts 3 and 6). After the appropriate mergers, he was sentenced on Count 2 to a term of twelve years subject to 85% parole ineligibility; on Count 3, to a term of three years consecutive to the sentence imposed on Count 5; and on Count 5, he was sentenced to a term of ten years subject to 85% parole ineligibility consecutive to Count 2, for an aggregate term of twenty-five years. We reverse and remand for a new trial.
The charges against defendant arose on December 24, 2000, when two women crossing Turner Boulevard in Newark were struck and killed by a car driven by defendant. Several witnesses described the accident.
Shortly before midnight, Eston Robert Reid was driving on Turner Boulevard when he saw several people crossing the street toward the Masonic Temple where the First Ghanian Church of New Jersey was having a Christmas party. He stopped his 1988 Thunderbird in the left lane about five or six car lengths away to allow the pedestrians to cross the street. Four young people crossed the street safely, and as two women, one elderly, were crossing the street, Reid saw headlights in his rear-view mirror that gained on him in seconds. He blew his horn to warn the women that a vehicle was coming in the right lane. Reid testified that the car was coming very fast, passed him on the right and struck the two women in the road. Reid got out of his car and ran to the women, and about fifty to sixty people came running from the Masonic Temple. Reid then went to defendant's car and saw that defendant was bleeding and trying to push the windshield off of him. Emergency vehicles arrived at the scene very soon after the accident.
Acting Fire Captain Ramon Rivera was on duty at Newark Fire Department Engine 12 on Turner Boulevard. He heard a car skid and then a loud bang. He and three other members of the Company drove their emergency vehicle to the scene, took charge, taped off the area and attempted to assist the victims, one of whom was already deceased and the other barely breathing. As Rivera approached defendant's car, defendant got out, bleeding and staggering. Rivera sat him on the curb and bandaged his head. While the firefighters were attending to the victims, defendant and his passenger left the scene, but left his car in the middle of the road. Rivera testified that the road was well-lit, the weather was clear and cold and there was no snow or ice on the ground.
A short while later, defendant's father, James Johnson, arrived at the scene. He spoke to police officers who later went to Johnson's home with him and found defendant there. The officers observed that defendant's head was bandaged, his speech was slurred, he was unable to stand without assistance and swayed and staggered as he walked. Officer Earl James Young detected a strong odor of alcohol from defendant.
Defendant was transported to the hospital where he was treated for his injuries. The officers later took him to Newark Police Headquarters. At 9:00 a.m. on December 25, defendant was advised of his Miranda*fn1 rights and he signed a waiver of rights form. Although defendant signed the waiver form, he was not questioned at that time because he appeared to be disoriented and was obviously injured.
On December 26, 2000, at about 9:45 a.m., defendant was again read his Miranda rights and he signed another waiver form. At the time, he appeared to be coherent and wanted to make a statement. He then gave the following statement describing the events that occurred on December 24, 2000, when he was driving his 1998 red Chevrolet Cavalier on Turner Boulevard.
We were going down Irvine Turner Boulevard in a normal flow of traffic. I was going about 25 miles an hour. A van*fn2 was slowing down in the left lane and I was in the right lane, and I noticed I started gaining up on the van. And that's when I noticed people running past the van trying to get across the street and I jammed on my brakes. And that's when the people got hit and I hit my head on the windshield and . . . blacked out.
When I came to, the car was at a complete stop. When I got out of the -- I saw the lady's leg. And I wanted to see how everybody was doing, but everybody started crowding me and everybody was screaming and I got scared. I got nervous so I left and went to my house to speak with . . . my mother to tell her to tell someone to go down there and tell them where I am located at. And then that's when the police came to my house. Then an ambulance came and took me to the hospital. Then I was arrested.
Defendant acknowledged that he had "a half a pint of E&J brandy split between three people" at about 11:00 p.m. and two beers between 9:00 and 10:00 that evening. When asked if he wanted to add anything to his statement, defendant said:
I want the world, the families, to know that I am severely sorry. It was an accident. I did not see them coming. I tried to stop and I wish they could accept my sympathy. And if I could bring them people back, I would for exchange for my life. I want them to know that I am not a criminal. I work hard every day to support my family, and I do have a heart.
At trial, Dr. Robert Pandina, a professor and Director of the Center for Alcohol Studies at Rutgers University, testified as an expert witness on behalf of the State that defendant's blood alcohol concentration (BAC) at the time of the accident was .07%, based upon defendant's statement of the amount he had to drink and his body weight. The expert testified that a BAC of .07% increases the risk of being involved in a serious fatal accident sixfold.
In this appeal, defendant argues:
THE TRIAL COURT'S FAILURE TO CHARGE NEGLIGENCE CONSTITUTES REVERSIBLE ERROR.
LIMITING DEFENSE COUNSEL'S ABILITY TO CROSS-EXAMINE INVESTIGATOR ANDERSON CONSTITUTED AN ABUSE OF JUDICIAL DISCRETION AND RESULTED IN HARMFUL ERROR.
THE DEFENDANT'S SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WAS VIOLATED BY THE RESTRICTIONS IMPOSED BY THE TRIAL COURT ON DEFENSE COUNSEL'S SUMMATION.
THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BY COMMENTS MADE BY THE PROSECUTOR IN SUMMATION (RAISED IN PART BELOW)
(A) THE PROSECUTOR MISREPRESENTED THE FACTS
(B) THE PROSECUTOR IMPROPERLY MALIGNED THE DEFENDANT AND SUGGESTED THAT THE JURY HAD A SOCIETAL DUTY TO CONVICT (NOT RAISED BELOW)
(C) THE PROSECUTOR'S ASSERTION THAT FIREMAN RIVERA DID NOT SMELL ALCOHOL ON THE DEFENDANT BECAUSE IT WAS COLD OUTSIDE WAS IMPROPER BECAUSE IT ...