June 20, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JUSTIN HAGIN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-03-0541.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: February 25, 2008
Before Judges C.S. Fisher and C.L. Miniman.
Defendant Justin Hagin appeals from his conviction on five charges of vehicular homicide and related offenses and from sentences aggregating twenty years stemming from a hit-and-run accident on June 18, 2004. We affirm.
Defendant was charged on March 10, 2005, in an eight-count indictment with (1) first-degree vehicular homicide, contrary to N.J.S.A. 2C:11-5(b)(3)(a), (b), (c); (2) first-degree aggravated manslaughter, contrary to N.J.S.A. 2C:11-4(a)(1); (3) third-degree leaving the scene of a fatal accident, contrary to N.J.S.A. 2C:11-5.1; (4) second-degree eluding police, contrary to N.J.S.A. 2C:29-2(b); (5) third-degree endangering an injured victim, contrary to N.J.S.A. 2C:12-1.2; (6) third-degree unlawful taking a means of conveyance, contrary to N.J.S.A. 2C:20-10(c); (7) third-degree causing death while being an unlicensed driver, contrary to N.J.S.A. 2C:40-22(a); and (8) third-degree resisting arrest, contrary to N.J.S.A. 2C:29-2.
The matter was tried commencing on January 31, 2006, with the jury returning a verdict of guilty of vehicular homicide, leaving the scene of an accident, eluding, endangering an injured victim and driving while unlicensed. He was acquitted of the remaining charges. On March 31, 2006, he was sentenced to twelve years in state prison subject to the provisions of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the first-degree vehicular homicide. He received two consecutive four-year terms on third-degree leaving the scene of an accident and endangering an injured victim. He was given a term of seven years on second-degree eluding to run concurrently with the vehicular homicide sentence. Finally, he received a four-year term for third-degree causing a fatality while being an unlicensed driver, also concurrent to the vehicular homicide.
The evidence at trial established that defendant and his son lived in Newark with his girlfriend Larissa Montgomery and her daughter. Montgomery owned a 1997 green Ford Explorer that defendant would drive on occasion.*fn1 Defendant and Montgomery had an argument in the afternoon of June 18, 2004, and defendant hid her car keys. Montgomery called the police and, at their direction, defendant returned the keys. Montgomery used the car to run some errands and went to bed at 8:00 p.m. She woke at 10:00 p.m. for her 11:00 p.m. shift at the post office, only to discover that the car was gone. Defendant's son explained that defendant had left. Montgomery unsuccessfully tried to get a message to defendant to return her car and as a result was unable to go to work.
Defendant took the Explorer to meet his friend Olanrewaju "Larry" Sule in Irvington to go for a ride and "hang out." Defendant told Sule that he had a drink before he left the house, but Sule saw no effect on his ability to drive. The two drove around with no destination, until defendant stopped to let Sule buy some beer for him. Sule drank nothing and drove the car while defendant consumed two 40-ounce bottles.
Defendant drove the car to bring Sule back to his house. He was traveling at what Sule believed to be 80 to 100 m.p.h. eastward down Lyons Avenue in Newark, headed away from Sule's home, when Sule saw a police car. Sule then saw a pedestrian appear "out of nowhere" on the driver's side of the vehicle. The vehicle struck the pedestrian. Sule insisted that defendant stop the car, but he continued to drive down Lyons Avenue.
Police officers Michael Grainger and Elvin Polanco witnessed the accident. They drove an unmarked vehicle northbound on Clinton Place. Officer Grainger saw the green vehicle approach a crosswalk, obviously in excess of the 25 m.p.h. speed limit, followed by a marked police car in pursuit. He saw the green vehicle strike a pedestrian walking near the crosswalk in the lane of travel, throwing him into the eastbound lane. Officer Polanco did not see the impact, but heard a "loud thump."
Officers Grainger and Polanco blocked off the street with their vehicle and called for emergency assistance. The pedestrian, Robert Williams, was face down on the street, motionless, unresponsive and bleeding from his ears, mouth and nose. An ambulance arrived and Polanco accompanied Willams to UMDNJ hospital where he was pronounced dead at 1:50 a.m. Williams's body suffered numerous lacerations, abrasions and fractures. The Medical Examiner determined they were the cause of death and were consistent with injuries resulting from an impact with a motor vehicle and the street. The victim's blood alcohol level was 0.139%.
The police officers pursuing defendant were Michael Ramirez and Vincent Feliciano, Jr. That night they were patrolling in uniform in a marked police car. The officers saw the green Explorer speeding and driving recklessly on Lyons Avenue. Ramirez heard a loud thump and saw a pedestrian thrown from the front of the vehicle into the air. Officers Ramirez and Feliciano pursued the Explorer down Lyons Avenue and saw it proceed through four red lights at what they believed to be 40 m.p.h. Eventually, the vehicle was forced to stop because of traffic on Lehigh and Elizabeth Avenues. Feliciano ordered Sule to exit the vehicle, while Ramirez did the same to defendant. Sule complied and was handcuffed, but defendant refused to release the steering wheel. Both officers struggled with defendant to force him out of the car. He cursed and flailed his hands until the officers were able to get him on the ground, injuring his face in the process, and handcuff him. The officers saw empty bottles in the car and smelled alcohol on defendant. They believed that defendant was intoxicated because he stumbled and had red eyes, a flushed face and a sweaty appearance. The officers took defendant to UMDNJ hospital to have his injuries treated and obtain a blood sample. The test revealed a blood alcohol level of .294%.
Investigator Vincent Nardone testified for the State at defendant's trial. He determined that the vehicle's speed was between 45 and 55 m.p.h. and the victim fell 140 feet from the point of impact. Defendant's expert, Dr. Ira Kuperstein, challenged Nardone's determinations, opining that Nardone misapplied the formula for calculating the Explorer's speed and the distance that the victim was thrown. Dr. Kuperstein believed that the rate of speed was actually 29 to 35 m.p.h. Defendant did not testify. At the trial's conclusion, the jury found defendant guilty of five of the eight charges.
Defendant appeals both the verdict and sentence, raising the following issues for our consideration:
POINT I - THE TRIAL COURT'S INDEPENDENT QUESTIONING OF AN IMPORTANT DEFENSE WITNESS CAST ITSELF INTO THE ROLE OF AN ADVOCATE BY ESSENTIALLY PROJECTING ITS OWN DISBELIEF OF THA WITNESS'S TESTIMONY. (Not Raised Below)
POINT II - THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A JUDGMENT OF ACQUITTAL REGARDING AGGRAVATED MANSLAUGHTER EMBODIED IN COUNT II, THEREBY NECESSARILY TAINTING THE JURY'S VERDICT FINDING THE DEFENDANT GUILTY OF THE LESSER OFFENSE OF VEHICULAR HOMICIDE EMBODIED IN COUNT I.
POINT III - THE TRIAL COURT ERRED IN RULING THAT ALL OF THE DEFENDANT'S PRIOR CONVICTIONS WERE ADMISSIBLE TO ATTACK CREDIBILITY WHICH HAD OCCURRED MORE THAN A DECADE EARLIER.
POINT IV - THE TRIAL COURT ERRED BY FAILING TO MERGE COUNT III CHARGING THIRD DEGREE LEAVING THE SCENE OF AN ACCIDENT RESULTING IN DEATH AND COUNT V CHARGING THIRD DEGREE ENDANGERING AN INJURED VICTIM INTO A SINGLE OFFENSE. (Not Raised Below)
POINT V - THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
First, defendant alleges that the trial judge displayed a skeptical demeanor when questioning his expert witness, Dr. Ira Kuperstein, improperly influencing the jury's deliberations. As Kuperstein challenged the State's expert's conclusions about the speed of the vehicle and its impact with the pedestrian, the judge intervened to ask if his opinion rested on an assumption that the vehicle did not brake before striking the victim. Kuperstein replied that there was no evidence that the driver applied the brakes. The judge then asked him if he agreed that it would be meaningful if the jury found that the vehicle did brake. He agreed. Defendant contends that the judge's suggestion that the driver might have braked lacked an evidentiary basis and contradicted the eyewitness and expert testimony. Although the judge later instructed the jurors not to consider any question she asked a witness to be an indication of her opinion, defendant contends that this was not sufficient to cure the prejudice caused by her skeptical tenor.
Because defendant did not object to the judge's questions, our standard of review requires us to disregard the allegation of error "unless it is of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2. N.J.R.E. 614 permits a judge to call or interrogate witnesses "in accordance with the law and subject to the right of a party to make a timely objection." Judges may also make comments on the evidence to assist the jury, provided that they do not have an improper influence over deliberations. Bitsko v. Main Pharmacy, Inc., 289 N.J. Super. 267, 283-84 (App. Div. 1996). The judge did not exceed her authority as there is nothing in the cold record before us indicating that she conveyed a bias or encouraged the jurors to make a particular determination of fact or credibility.
As to allegations that the judge expressed disbelief through verbal intonations, there is again nothing in the record to substantiate this claim. By failing to object, defendant's attorney prevented any such observation from being preserved in the record for appellate review. We do not make factual determinations on evidence not in the record. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Further, the lack of objection at trial indicates that defendant's attorney did not consider the issue to be serious at the time. State v. Macon, 57 N.J. 325, 333 (1971). Finally, we are satisfied that the judge's charge to the jury mitigated whatever minimal influence her questions may have conveyed.
Second, defendant contends that the trial judge erroneously denied his motion for a judgment of acquittal on the aggravated-manslaughter charge because there was insufficient evidence that defendant's conduct was certain to result in death. Defendant argues that the charge on aggravated manslaughter had an improper influence over the jury's verdict on the charge of vehicular homicide.
A defendant is entitled to a judgment of acquittal at the close of the State's case if, drawing all reasonable inferences in the State's favor, there is not sufficient evidence for a jury to find guilt beyond a reasonable doubt. R. 3:18-1; State v. Reyes, 50 N.J. 454, 458-59 (1967). A person is guilty of aggravated manslaughter if he or she "recklessly causes death under circumstances manifesting extreme indifference to human life." N.J.S.A. 2C:11-4. The defendant's behavior must create a risk for which death is a probable result. State v. Jenkins, 178 N.J. 347, 363-64 (2004).
Defendants who have engaged in reckless driving while intoxicated have been convicted of this crime. See State v. Scher, 278 N.J. Super. 249, 271 (App. Div. 1994) ("extraordinary inebriation" and "daredevil" driving), certif. denied, 140 N.J. 276 (1995); State v. Bogus, 223 N.J. Super. 409, 419 (App. Div), certif. denied, 111 N.J. 567 (1988) (speeding through a red light while severely intoxicated). Intentional flight from the scene of an accident has also been considered evidence of extreme indifference. State v. Radziwil, 235 N.J. Super. 557, 570 (App. Div. 1989) ("The fact that defendant fled the scene of the collision, without stopping to determine whether he could render aid to any of the victims, provided additional support for the conclusion that he acted with extreme indifference to human life."), aff'd, 121 N.J. 527 (1990).
We are satisfied that the State presented sufficient evidence of recklessness for the charge to reach the jury, especially in light of Sule's testimony that defendant was going 80 m.p.h. or more. Although the two expert witnesses disagreed as to the proper formula to apply to determine the speed of defendant's vehicle, a reasonable juror could find the State's expert more credible or ignore both experts and determine speed from the testimony of the eyewitnesses. Moreover, the State provided proof that defendant was driving with a blood alcohol level of .294% and there was eyewitness testimony that defendant was driving recklessly in a 25 m.p.h. zone. Defendant also fled the scene of the accident. See ibid. The totality of the State's evidence constituted a prima facie case.
Defendant also contends that the denial of his motion for a judgment of acquittal prejudiced his ability to obtain a fair trial on the charge of vehicular homicide. Appellant cites to State v. Christener, 71 N.J. 55 (1976), which held that that it was improper for a judge to instruct a jury as to the elements of first degree murder when the evidence was insufficient to support the charge, but was sufficient to support manslaughter. Our Supreme Court has recently revisited this decision. State v. Wilder, 193 N.J. 398 (2008), overruled the Christener principle and replaced it with the "unjust result" standard in Rule 2:10-2.
[W]e hold that overcharging errors, like other non-constitutional trial court errors such as defects in charging and the like, should be subjected on appeal to the same "unjust result" standard established in Rule 2:10-2. We therefore reject the continued use of the Christener standard in connection with claims of jury overcharge. [Wilder, supra, 193 N.J. at 418.]
Thus, the prejudice resulting from an "overcharge" is not presumed, but must be manifestly capable of producing an unjust result. We are not convinced this standard was met here. The charge of aggravated manslaughter was not wholly unsupported by the State's evidence and there is no indication that the instruction was capable of altering the outcome.
Third, defendant contends that the trial judge erred by rejecting his effort to exclude evidence of his first two convictions. The trial judge presided over an evidentiary hearing and ruled that all four of his indictable convictions were admissible, as long as they were "sanitized," containing only the degree and sentence. See State v. Brunson, 132 N.J. 377, 394 (1993). The convictions at issue are unlawful possession of a handgun and aggravated assault occurring in September and October 1992, burglary in 1997 and extortion in 1998. Defendant contends that the 1992 convictions should have been considered inadmissible because they were too remote in time to the crimes with which he was charged, they were unrelated to his credibility and not serious enough to overcome their prejudicial effect because he was only given a probationary term.
Our standard of review requires us to affirm evidentiary rulings absent an abuse of discretion or a "clear error of judgment." State v. Marrero, 148 N.J. 469, 483 (1997); State v. Erazo, 126 N.J. 112, 131 (1991). N.J.R.E. 609 permits witnesses' credibility to be impeached by evidence of prior crimes. When introduced against a criminal defendant, such evidence may be prejudicial if it was remote in time, did not involve dishonesty or was not a serious offense. State v. Sands, 76 N.J. 127, 144-45 (1978). A defendant with an extensive criminal record may be impeached by early convictions in order to demonstrate a "contempt for the bounds of behavior placed on all citizens." Id. at 145.
We find no abuse of discretion. Defendant's suggestion that he would have been prejudiced by the similarity of the prior offenses is defeated by the trial judge's decision to "sanitize" them. Further, the trial judge did not abuse her discretion by concluding that defendant's criminal record demonstrated a continuous history of criminal misconduct. Sands allows prosecutors to impeach defendants' veracity based on a "pattern of illegality." State v. Bohuk, 269 N.J. Super. 581, 598 (App. Div.), certif. denied, 136 N.J. 29, cert. denied, 513 U.S. 865, 115 S.Ct. 183, 130 L.Ed. 2d 117 (1994).
Finally, defendant contends that the sentencing judge erred in failing to merge the conviction for leaving the scene of a fatal accident, N.J.S.A. 2C:11-5.1, with the conviction for endangering an injured victim, N.J.S.A. 2C:12-1.2. The Legislature has expressly prohibited the merger of a conviction under N.J.S.A. 2C:11-5.1 for leaving the scene of a fatal accident with the crimes of aggravated manslaughter in violation of N.J.S.A. 2C:11-4 or vehicular homicide contrary to N.J.S.A. 2C:11-5 and required that a separate consecutive sentence be imposed for each crime.
The Legislature adopted a similar approach with respect to violations of N.J.S.A. 2C:12-1.2. It specifically provided that "a conviction arising under this subsection shall not merge with a conviction of the crime that rendered the person physically helpless . . . nor shall such other conviction merge with a conviction under this section." N.J.S.A. 2C:12-1.2(d). Additionally, the sentence under N.J.S.A. 2C:12-1.2 is required to be served consecutively to the sentence for the crime that rendered the person helpless. Ibid.
The statutes at issue can legally preclude merger and provide for enhanced sentencing. State v. Martinez, 387 N.J. Super. 129, 146 (App. Div.), certif. denied, 188 N.J. 579 (2006); State v. Soto, 385 N.J. Super. 257, 265 (App. Div.), certif. denied, 188 N.J. 491 (2006). However, neither the Legislature nor this court has addressed the issue of whether convictions under N.J.S.A. 2C:11-5.1 and 2C:12-1.2 should merge with each other.
In deciding whether to merge convictions, the court must first ascertain "whether the legislature has in fact undertaken to create separate offenses; and, if so, it must then be determined whether those separate offenses have been established under the proofs." State v. Valentine, 69 N.J. 205, 209 (1976); see also State v. Allison, 208 N.J. Super. 9, 22-23 (App. Div.) certif. denied, 102 N.J. 370 (1985). We must focus on the elements of the crime, the legislative intent in enacting the statutes and the specific facts of each case. State v. Dillihay, 127 N.J. 42, 47 (1992); State v. Bull, 268 N.J. Super. 504, 513 (App. Div. 1993), certif. denied, 135 N.J. 304 (1994). We must also be mindful that an accused may not be punished twice for the same offense. State v. Trugilia, 97 N.J. 513, 518-22 (1984); State v. Davis, 68 N.J. 69, 77 (1975). Where the offenses are in fact indistinguishable, the resulting convictions must be merged. State v. Best, 70 N.J. 56, 60-61 (1976).
Comparing the statutory provisions here at issue, the only distinguishing feature between the two is that one applies to leaving the scene of a fatal accident and the other applies to leaving the scene of an accident causing injuries. Compare N.J.S.A. 2C:11-5.1 with N.J.S.A. 2C:12-1.2. The Legislature in fact intended to create two separate crimes. The offenses are both third-degree crimes, neither of which may merge with the first-degree vehicular homicide conviction. However, under the facts of this particular case, we are convinced that the two offenses should merge for sentencing purposes. The evidence established that the victim was immediately found by the police to be motionless, not responsive and bleeding from the nose, mouth and ears. The victim did not suffer any additional harm because defendant left the scene of an accident causing injuries and did not summon medical help. This is not a case where the victim died because he was deprived of medical assistance that might have averted death had the accident been immediately reported. As a result, we conclude that the conviction for leaving the scene of an accident causing injuries must merge for sentencing purposes with the conviction for leaving the scene of a fatal accident.
After carefully reviewing the record in the light of the written arguments advanced by the parties, we conclude that defendant's arguments respecting the alleged excessiveness of the sentence "are without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by the trial judge in her oral opinion delivered on March 31, 2006, at sentencing. The findings and conclusions of the judge are supported by substantial, credible evidence in the record. State v. Locurto, 157 N.J. 463, 471 (1999). Remanded for resentencing in accordance with this opinion.