August 26, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TAMEKA L. NELSON, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 06-08-1379.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 1, 2009
Before Judges Stern, Graves and Sabatino.
A jury acquitted defendant Tameka Nelson of first-degree aggravated manslaughter in violation of N.J.S.A. 2C:11-4(a)(1) (count two) for causing the death of Idatte Hamilton (Ida or Hamilton) under circumstances manifesting extreme indifference to human life; but defendant was found guilty of second-degree vehicular homicide in violation of N.J.S.A. 2C:11-5(a) (count one) for causing Hamilton's death by driving a vehicle recklessly; and third-degree leaving the scene of an accident resulting in death in violation of N.J.S.A. 2C:11-5.1 (count three). On April 28, 2008, the trial court sentenced defendant to an eight-year prison term on count one with an eighty-five percent period of parole ineligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2, and a consecutive four-year term on count three. Appropriate monetary fees, assessments, and penalties were also imposed. Defendant appeals and we affirm.
On May 4, 2005, at approximately 8:15 p.m., Wendy Wallace (Wallace), Hamilton's cousin, was driving to Hamilton's house to pick her up and take her for pizza. The headlights on Wallace's car were on when she arrived at Hamilton's house, and Wallace parked on the street because she saw Hamilton "coming down the stairs." As Hamilton was walking towards the car, Wallace noticed that a young African-American girl, later identified as defendant, "glanced back" in Wallace's direction before entering her vehicle, an Acura Integra. Defendant's Acura was facing in the same direction as Wallace's Mitsubishi, and the Acura was parked about two car lengths in front of the Mitsubishi.
According to Wallace, who was the only eyewitness to testify, defendant's vehicle then "accelerated" in reverse hitting the front passenger side of Wallace's car and Hamilton, who was about to enter the car. Defendant's vehicle then sideswiped "almost the entire length" of Wallace's car. As this was taking place, Wallace heard loud banging noises and she heard her cousin screaming.
Defendant's vehicle did not stop after sideswiping the Mitsubishi and hitting Hamilton. Wallace testified that defendant's car "continued accelerating" in reverse and struck another car that was parked behind Wallace's car before finally hitting a third vehicle parked on the other side of the street. At that point, defendant's vehicle stopped, and Wallace "saw the girl jump out of her car and run." Wallace testified that defendant's car was "about 20 feet away," and she heard her cousin, who was pinned under defendant's car, calling for help.
Wallace dialed 9-1-1 as she exited her car and ran to defendant's car. Hamilton was still conscious and was screaming. Wallace sat in the street and held Hamilton's hand until help arrived. Hamilton was then removed from underneath defendant's vehicle and taken to the Jersey City Medical Center, where she died at 10:55 p.m. on the same day.
On May 5, 2005, at approximately 12:20 a.m., defendant turned herself in. According to Sergeant Joseph Olszewski, defendant told him, "I think you're looking for me." When asked to be more specific, defendant said, "I was involved in the accident." Defendant then asked about Hamilton's condition, and when she learned that Hamilton had died, defendant began to cry. Olszewski then read defendant her rights and placed her under arrest.
Because the crimes of aggravated manslaughter and vehicular homicide both require a showing that defendant acted recklessly in causing the death of another, the central dispute at trial was whether defendant operated her vehicle recklessly. In his opening statement, the prosecutor told the jury: "If you drive recklessly and someone gets killed, it's not an accident. It's a crime." On the other hand, defendant's attorney told the jury that what happened on May 4, 2005, "was an accident, a tragic, unfortunate accident," because defendant did not know that Hamilton was "behind her car at that time."
During the trial, Police Officer James Canfield (Canfield) testified that when he arrived on the scene, "Hamilton was being removed from underneath the vehicle by rescue personnel." After Hamilton was removed, Canfield examined defendant's car. During his inspection of the Acura, he noticed a purse and a cell phone*fn1 in the front seat. While looking through the purse, he found some "miscellaneous items" and a motor vehicle identification card with defendant's name on it.
Canfield ran defendant's identification number through the Department of Motor Vehicles database and her license came up as suspended. However, Canfield testified that defendant's driving privileges were not to be suspended until May 14, 2005, ten days after the accident, and conceded that he may have used "the wrong date on the license or something" when he entered the information into the computer. In light of this testimony, the trial court instructed the jury that any evidence pertaining to the status of defendant's driver's license could not "be considered as evidence of recklessness":
The State has submitted evidence [of] defendant's lack of [a] valid driver's license -- and there is some issue of whether it was suspended. I have told you they have not proven that it was. This evidence cannot be considered as evidence of recklessness; rather, if you consider it at all, it's only in the context of whether it contributed to the defendant's state of mind when and if you find that she did leave the accident. In other words, you're not deciding whether her license is suspended or that she didn't have a driver's license. That doesn't determine if she's guilty of this offense or any offense. You may not consider lack of a valid driver's license as being an act of recklessness in the prior count or as to contributing to her in and of itself leaving the scene.
The State also presented the testimony of Dr. Eddy Lilavois, a forensic pathologist for the Regional Medical Examiner's Office, who performed the autopsy on Hamilton. Dr. Lilavois testified that the victim's point of impact injury was on her right leg, about nine inches above her heel. The bone did not fracture, however, and according to Dr. Lilavois if defendant's vehicle had stopped, "the victim would have walked away." Dr. Lilavois testified that the cause of death was several "blunt impact injuries to the torso with subsequent fractures of bones and lacerations of vital organs, including the lungs and the liver," and the victim subsequently "bled out."
Defendant elected not to testify, but Dr. Wayne F. Nolte, an accident reconstruction expert, testified for the defense. Based on his investigation, Dr. Nolte described the events that occurred on May 4, 2005, as follows:
Tameka Nelson got in her car, a 1995 Acura, in front of the property known as 187 Claremont Avenue. She at some point backed up that vehicle, and when she did, her vehicle came in contact with a . . . grey 2003 Mitsubishi Gallant that was parked in front of property 189, which is located west of where she was parked. But the Gallant was in the street, parallel to the parking space. It was not stopped in the parking space adjacent to the curb, but out in the street.
Ida Hamilton came out of the residence and went to the passenger side door of the Mitsubishi Gallant, and while she was there, the Nelson vehicle came back, struck the right side of the Mitsubishi. Basically a sideswipe that started from near the front of that car on the passenger side. Moved back and ultimately struck Ida Hamilton, and then continued back.
As it continued back, it did continue back at an angle, and the angle was more toward the north or going across the roadway.
The right rear of Tameka Nelson's car came in contact with the left front corner of a Pontiac that was parked in front of property 190 -- 191. That car was parked near the driveway. It was contacted on the right front corner, and the Nelson vehicle then continued across the street to where it struck the side of a Ford van, a Windstar van that was parked adjacent to the curb on the north side of the street, across -- or in front of property 190.
. . . The accident was the Nelson vehicle moved in a westerly direction, and then moved in a northerly direction across the street. And there was a sideswipe, there was a contact with the left front corner of the Pontiac, and then ultimately contact with the van across the street, and it pushed the van into the curb line. That's the accident.
According to Dr. Nolte, defendant's car backed up about seventeen feet before striking the front of the Mitsubishi, then traveled another five feet before striking Hamilton. Dr. Nolte testified that defendant's Acura traveled a total distance of "about 47 feet" and was not going "more than ten miles per hour." He estimated the entire incident took place in about "four or five seconds."
At sentencing on April 28, 2008, defendant apologized "for all the agony" she caused, and her attorney noted she "candidly admitted in the presentence investigation that she was under the influence. I suppose that may explain some of the otherwise unexplainable aspects of the case." On appeal, defendant presents the following arguments for our consideration:
THE TRIAL COURT SHOULD HAVE GRANTED A DIRECTED VERDICT AT THE CLOSE OF THE STATE'S CASE ON THE CHARGE OF VEHICULAR HOMICIDE DUE TO INSUFFICIENT EVIDENCE THAT DEFENDANT ACTED RECKLESSLY BY CONSCIOUSLY DISREGARDING A SUBSTANTIAL RISK. (PARTIALLY RAISED BELOW).
THE VERDICT OF THE JURY SHOULD HAVE BEEN SET ASIDE BY THE TRIAL COURT AS AGAINST THE WEIGHT OF THE EVIDENCE AS THERE WAS INSUFFICIENT FACTUAL BASIS FOR FINDING THAT DEFENDANT ACTED RECKLESSLY BY CONSCIOUSLY DISREGARDING A KNOWN RISK.
DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1 PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY CONFUSING AND PREJUDICIAL JURY INSTRUCTIONS WHICH REPEATEDLY INFORMED THE JURY THAT THE CASE DID NOT INVOLVE AN ACCIDENT. (NOT RAISED BELOW).
DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1 PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO GIVE A TAILORED INSTRUCTION ON RECKLESSNESS. (NOT RAISED BELOW).
DEFENDANT'S RIGHT TO A FAIR TRIAL WAS VIOLATED AS THE TRIAL COURT ERRONEOUSLY ALLOWED THE STATE TO ADMIT IRRELEVANT AND PREJUDICIAL HEARSAY EVIDENCE REGARDING THE STATUS OF DEFENDANT'S DRIVER'S LICENSE. (NOT RAISED BELOW).
DEFENDANT'S RIGHT TO A FAIR TRIAL WAS VIOLATED BY IMPROPER AND INFLAMMATORY COMMENTS OF THE PROSECUTOR IN HIS CLOSING STATEMENT. (NOT RAISED BELOW).
DEFENDANT'S RIGHT TO A FAIR TRIAL WAS VIOLATED AS A RESULT OF THE CUMULATIVE EFFECT OF ERRORS COMMITTED BY THE TRIAL COURT. (NOT RAISED BELOW).
THE SENTENCE IMPOSED BY THE TRIAL COURT WAS EXCESSIVE.
A. DEFENDANT'S SENTENCE WAS SIGNIFICANTLY MORE SEVERE THAN SENTENCES IMPOSED IN SIMILAR CASES.
B. THE SENTENCING COURT FAILED TO TAKE INTO ACCOUNT APPROPRIATE MITIGATING FACTORS.
Based on our review of the record and the controlling legal principles, we conclude that defendant's arguments are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We add only the following comments. In her third point, defendant argues the jury instructions were "confusing and prejudicial" because the jury was told "that the case did not involve an accident." Defendant asserts that even though the issue was not raised below, "the plain error rule is wholly appropriate." On the other hand, the State maintains the jury instructions were clear, thorough, and necessary to clarify the difference between negligent and reckless conduct.
We conclude from our review of the jury charge as a whole, that the jury was properly instructed and that the court's instructions regarding the difference between negligent conduct and reckless conduct were neither confusing nor prejudicial.
For example, the judge stated:
So I'd like to make it clear in the case at hand that this is a criminal case. It's not an automobile accident case. It may arise from an automobile accident, but this is not a civil matter where the accused is alleged to have been negligent. All right?
A defendant in a criminal matter in contrast to a civil matter requires that the State and the Prosecutor . . . prove that the defendant acted recklessly, criminally. It's a higher standard of culpability than civil negligence or even criminal negligence or carelessness.
Bear in mind that when I . . . give you the first two charges here, which is the vehicular homicide and then the greater offense of aggravated manslaughter, the State must prove the requisite -- that the defendant possessed the requisite state of mind, namely, reckless and . . . what the degree of recklessness is. It's not enough that the defendant acted negligently or accidentally.
On the other hand, the last charge deals with the knowing state of mind, knowingly leaving the scene of an accident, all right, where death occurred. I'll get into that.
We recognize, of course, that proper jury instructions "are essential for a fair trial." State v. Green, 86 N.J. 281, 287 (1981). See also State v. Martin, 119 N.J. 2, 15 (1990) ("A charge is a road map to guide the jury, and without an appropriate charge a jury can take a wrong turn in its deliberations."). In the present matter, we are satisfied that the court gave "a comprehensible explanation of the questions that the jury must determine, including the law of the case applicable to the facts." Green, supra, 86 N.J. at 287.
Accordingly, we find no error in the jury instructions, much less plain error.
In point four, defendant asserts that the testimony about the status of her driver's license was irrelevant and prejudicial, and the trial court's limiting instruction was insufficient to cure the prejudice. We do not agree. As the trial court properly noted, the status of defendant's driver's license had no bearing on whether she was reckless. State v. Bakka, 176 N.J. 533, 538 (2003) ("[E]vidence that defendant's license has been revoked by itself cannot be probative of recklessness."). Therefore, the trial court correctly instructed the jury that the testimony could only be considered for the limited purpose of determining defendant's state of mind when she ran from her vehicle. See Biunno, Current N.J. Rules of Evidence, comment 1 on N.J.R.E. 401 (2010) ("[A]ny evidence which logically tends to show a motive, or which fairly tends to explain the conduct of the accused, should be permitted.").
In point six, defendant argues that improper comments during the prosecutor's summation deprived her of a fair trial.
Defendant contends that the following statements by the prosecutor warrant a new trial:
In [defense counsel's] world, where does an accident become a crime? It's just an accident. She gets in her car, whether she looks in the mirror or not, it's an accident. Whether she sees the double parked car back there -- and by the way, when you look back and you see a double parked car, is someone getting in or is someone getting out?
She backs it up. She hits the car. When does that stop being an accident? She hits somebody, she drags her. She's screaming. When does that stop being an accident?
At one point, it becomes a crime, and somebody has to be responsible. And you know what, it wasn't Ida Hamilton.
Improper comments by a prosecutor require reversal when the prosecutor's misconduct is "so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999). Nevertheless, a prosecutor is not precluded from making "a vigorous and forceful presentation of the State's case."
State v. Bucanis, 26 N.J. 45, 56, cert. denied, 357 U.S. 910, 78 S.Ct. 1157, 2 L.Ed. 2d 1160 (1958). Moreover, "[p]rosecutors are afforded considerable leeway in closing arguments" (and they may respond to arguments raised by defense counsel), "as long as their comments are reasonably related to the scope of the evidence presented." Frost, supra, 158 N.J. at 82.
In the present matter, the State contends the prosecutor's comments were an appropriate response to defense counsel's summation, which included the following:
At the outset of this case, [the prosecutor] got up during his opening statement, and he . . . referred to this incident as being a senseless accident, if you recall those words.
And to that I say, amen. That's exactly what it was, this is an accident. An inexplicable accident, certainly a tragic accident. And, unfortunately, Ida Hamilton lost her life as a result of the accident. But as I point out back then, I'll reiterate again, accidents, unfortunately are part of the human condition. They happen. Frequently they're tragic, and they'll happen again.
Accidents, as the judge has already told you, are normally litigated as civil suits. In that sense, we're in the wrong courthouse, you're in the wrong courthouse. Civil suits, next door in the Brennan Justice Complex.
But, however, [by] virtue of indicting this case, the State has taken this accident to a new level, a higher level, a different level. Different to the extent that criminal guilt or not guilt is the issue. Is this a crime? As opposed to what they might have done next door, litigate liability, who was responsible. And ultimately, at least, the currency over there is monetary damages. If there's a victim, how much money does -- should she receive by virtue of the negligence of the defendant.
If that were the case, I wouldn't be sitting here or over there. You'd have insurance company lawyers sitting [as] a defense attorney. You'd have plaintiff's attorney sitting in [the prosecutor's] place.
But this case is not being treated as your ordinary accident. I don't know what the basis for doing that is, because when you analyze it all, I submit to you, this is still an accident.
Because defense counsel did not object to the prosecutor's summation, we must determine whether there was plain error requiring reversal. R. 2:10-2. We find no such error. In our view, when the summations are viewed in their entirety, the prosecutor's comments were a fair response to defense counsel's argument that defendant was not guilty because "Ida Hamilton lost her life as a result of the accident."
Defendant also challenges her sentence. But we conclude from our examination of the record that the trial court correctly applied the sentencing guidelines, defendant's aggregate sentence is not excessive or unreasonable, and it certainly does not "shock the judicial conscience." State v. Roth, 95 N.J. 334, 365 (1984).