March 31, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DAVID J. COURSEN, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Sussex County, Indictment No. 05-06-0254.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 1, 2011 -- Decided
Before Judges Parrillo and Yannotti.
Defendant David J. Coursen appeals from his conviction, after a jury trial, of second-degree vehicular homicide, contrary to N.J.S.A. 2C:11-5, and the sentence imposed. We affirm.
Defendant and Lynette Decker (Decker) worked together at the Wantage Citco. On February 6, 2005, between 11:00 p.m. and 11:30 p.m., Decker picked up defendant at his home and drove to a bar. Decker played a game with a friend, while defendant sat at the bar and had a few drinks. After around forty-five minutes to an hour, Decker and defendant left the bar and drove to Decker's home so that she could retrieve her purse.
Decker changed cars and she and defendant went back to the pub. Decker spoke with a fellow patron, John Rude (Rude), while defendant sat at the bar and had a few more drinks. When the bartender announced "last call," Rude ordered a round of drinks for himself, defendant and Decker. The bartender asked defendant if he would be driving. Defendant replied that they had come in Decker's car, thereby leaving the impression he would not be driving.
Defendant, Decker and Rude left the bar. In the parking lot, Decker told defendant that she was too intoxicated to drive. She offered to call her sister for a ride home; however, defendant grabbed Decker's keys and said, "I'm driving. Get in the back." Rude apparently realized he also was too drunk to drive and asked if he could ride with defendant and Decker. They agreed. Decker testified that she did not notice any visual sign of defendant's intoxication because she "was drunk."
Rude sat in the front passenger seat and Decker sat in the back, as defendant drove Decker's car out of the bar's parking lot. Rude gave defendant directions. They drove along, smoking cigarettes, listening to music and singing. Decker and Rude each consumed a beer.
At around 2:07 a.m., defendant approached a curve in the road. He was traveling between forty-one and forty-seven miles per hour on a road with a posted speed limit of thirty-five miles per hour. Defendant said that he did not see a sign which cautioned that vehicles should only travel at twenty miles per hour on an upcoming curve. Decker testified that she thought defendant was driving too fast.
As Decker and Rude told defendant to slow down, the car began to slide and skid. The vehicle ran down an embankment on the right side of the road, became airborne, flipped and landed on its passenger side, slid fifteen feet and then came to rest on the driver's side. Defendant never applied the brakes as he lost control of the vehicle. Rude was not wearing a seatbelt. He hit his head on the front windshield and then was ejected from the vehicle.
Decker and defendant climbed out of the car. Rude was lying in the road about thirty feet from the car. At around 5:10 a.m., Rude was pronounced dead. He had received multiple, blunt traumatic injuries in the accident. State Trooper Rebecca Velez (Velez) arrived on the scene at around 2:22 a.m. She asked defendant what happened. He replied, "I lost control in the gravel and that was it . . . I came over the hill. I guess the car rolled, and we lost the passenger."
Defendant told Velez that he had consumed four or five drinks over five hours. Velez noticed that defendant's eyes were bloodshot and watery, his speech was slow and he lacked proper balance. Velez observed the odor of alcohol on defendant's breath. Based on her training and experience, Velez thought that defendant had been driving under the influence of alcohol and placed him under arrest. She issued summonses to defendant for careless driving, N.J.S.A. 39:4-97; reckless driving, N.J.S.A. 39:4-96; driving with an open container of alcohol, N.J.S.A. 39:4-51b; and driving while intoxicated, N.J.S.A. 39:4-50.
A mobile intensive care unit transported defendant to Morristown Memorial Hospital (MMH). At 4:10 a.m., a nurse took a forensic sample of defendant's blood and sealed it in a blood kit. At 4:31 a.m., hospital personnel drew a separate sample of defendant's blood for "medical management purposes." It appears that defendant had broken his collar bone in the accident.
State Trooper Marc Passarella (Passarella) questioned defendant at the hospital. Defendant made the following statement, "I was driving John home. I came over a hill. I didn't know, maybe I was speeding a little bit. I lost control completely and ran down the embankment and the car flipped over." Passarella watched the nurse draw defendant's forensic blood sample, and he transported the blood kit which contained two vials of blood to the Netcong police station. Another State Trooper transported the vials of blood to the State Police Laboratory, which tested the blood and determined that when the blood samples were taken, defendant had a blood alcohol content (BAC) level of .186.
Detective Joseph Costello (Costello) interviewed defendant the day
after the collision. Defendant was informed of his Miranda*fn1
rights. Defendant waived his rights and agreed to answer
Costello's questions. Defendant said that, on the night of the
accident, he may have consumed between seven and eight alcoholic
beverages, including beer and shots of whiskey. Defendant also said,
"I shouldn't have been driving."
Dr. John Brick (Dr. Brick), who was qualified as an expert in the field of alcohol pharmacology and the behavioral and psychological effects of alcohol intoxication, testified at trial. Dr. Brick stated that, in his opinion, defendant's BAC level at the time of the accident was at least between .16 and .20. Dr. Brick said that, in order to reach a BAC of .186, defendant would have had to consume between nine-and-a-half and eleven-and-a-half alcoholic beverages.
Dr. Brick further testified that, on the night of the accident, defendant was "highly impaired" and "at risk" of getting involved in "a fatal crash due to intoxication[.]" He said that a person at the level of defendant's intoxication has a severely impaired ability to operate a car, regardless of his visible signs of intoxication. Dr. Brick opined that "intoxication was a significant contributing factor to, if not the primary cause of, this crash."
After the State presented its case, defendant moved for a judgment of acquittal. The court denied the motion. The jury found defendant guilty of vehicular homicide. Based on the jury's finding, the court found defendant guilty of careless driving, reckless driving, driving with an open container of alcohol and driving while intoxicated, as charged in the motor vehicle summonses.
Thereafter, defendant filed a motion to set aside the jury's verdict, which the court denied. The court sentenced defendant to six years of incarceration, with a period of parole ineligibility as prescribed by the No Early Release Act, N.J.S.A. 2C:32-7.2 (NERA). The court also imposed a three-year period of parole ineligibility pursuant to N.J.S.A. 2C:11-5(b), to run concurrently with the NERA parole ineligibility period.
In addition, the court ordered a ten-year suspension of defendant's driving privileges, to run consecutive to the two-year suspension resulting from defendant's conviction for driving while intoxicated, and a three-year period of parole supervision. Appropriate fees also were imposed.
On appeal, defendant raises the following issues for our consideration:
THE COURT ERRED IN DENYING DEFENDANT'S MOTION TO SET ASIDE THE JURY VERDICT BECAUSE THE COURT MISAPPLIED ITS DISCRETION BY PERMITTING THE STATE'S EXPERT WITNESS TO TESTIFY THAT MEDICAL RECORDS HE DID NOT PREPARE WERE CONSISTENT WITH HIS OPINION.
THE COURT ERRED IN DENYING DEFENDANT'S MOTION TO SET ASIDE THE JURY VERDICT BECAUSE THE COURT'S CHARGE TO THE JURY INADEQUATELY GUIDED THE JURY IN PERFORMING THE TASK OF DETERMINING THE DEFENDANT'S GUILT OR INNOCENCE.
THE COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL AND THEREFORE VIOLATED DEFENDANT'S DUE PROCESS RIGHTS BECAUSE THE EVIDENCE PRESENTED AT TRIAL WAS INSUFFICIENT TO WARRANT A CONVICTION OF THE CRIME CHARGED.
THE SENTENCE IMPOSED BY THE COURT WAS MANIFESTLY EXCESSIVE.
Defendant first argues that the jury's verdict should have been set aside because the court erred by permitting Dr. Brick to testify that the hospital's medical records were consistent with his opinion. We disagree.
As we stated previously, at trial, Dr. Brick testified that, at the time of the accident, defendant's BAC was at least between .16 and .20. Dr. Brick stated that he based that opinion on the results of the tests performed by the State Police Laboratory on the forensic blood samples taken at MMH. Dr. Brick also stated that he had reviewed MMH's records, which indicated that twenty minutes after the nurse drew defendant's blood for forensic purposes, hospital personnel had taken another blood sample for medical management purposes.
Defendant objected to any questions that would permit Dr. Brick to compare the results of the MMH blood tests with the results of the State Police tests of defendant's forensic blood samples. The court limited the questions to Dr. Brick's own findings. The assistant prosecutor then asked Dr. Brick whether the results of the hospital's tests were consistent with his findings, and Dr. Brick said that they were. MMH's records were not moved into evidence.
We are satisfied that the court did not err in permitting Dr. Brick to testify that the results of MMH's tests were consistent with his findings. N.J.R.E. 703 provides that:
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.
In our view, Dr. Brick's statement that the MMH blood test results were consistent with his findings was permitted by N.J.R.E. 703, because the "facts or data" he referred to were of a type reasonably relied upon by experts in his field. State v. Torres, 183 N.J. 554, 576 (2005) (holding that an expert may rely on hearsay evidence to confirm an opinion reached by independent means).
Moreover, there is no merit in defendant's assertion that the admission of Dr. Brick's testimony regarding the MMH hospital records denied him his right of confrontation as guaranteed by the Sixth Amendment to the United States Constitution. The results of the blood tests were included in the MMH's business records and, therefore, would be admissible under N.J.R.E. 803(c)(6), which provides an exception to the hearsay rule for statements in records "made in the regular course of business[.]"
Furthermore, the admission of such statements does not implicate the constitutional right of confrontation because "business records are considered 'by their nature' to be non-testimonial." State v. Chun, 194 N.J. 54, 139 (quoting Crawford v. Washington, 541 U.S. 36, 56, 124 S. Ct. 1354, 1367, 158 L. Ed. 2d 177, 195 (2004)), cert. denied, U.S. , 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008). Indeed, the record shows that MMH took samples of defendant's blood for the purpose of medical treatment, not with an eye towards criminal prosecution. The results of MMH's blood tests were not testimonial because they were not recorded "to establish or prove past events potentially relevant to later criminal prosecution." Davis v. Washington, 547 U.S. 813, 822, 126 S. Ct. 2266, 2274, 165 L. Ed. 2d 224, 237 (2006).
Defendant argues that the trial court erred in denying his motion to set aside the verdict. Defendant contends that the trial court did not provide the jury with an adequate guide for determining whether he was guilty of the charged offense.
Here, the trial court instructed the jury that it must find that the State had proven, beyond a reasonable doubt, that: 1) defendant was driving the vehicle; 2) defendant caused Rude's death; and 3) defendant caused Rude's death by driving the vehicle recklessly. The court explained that the State was required to prove that Rude would not have died "but for defendant's conduct."
The court also explained the concept of "recklessness" to the jury. The court stated that a "person acts recklessly when he consciously disregards a substantial and unjustifiable risk that damage will result from his conduct." The court stated that the risk must be of such a nature and degree that considering the nature and purpose of the Defendant's conduct, and the circumstances known to him, disregard of the risk involves a gross deviation from the standard of conduct that a reasonable person would [have] observed in the defendant's situation.
In other words, in order for you to find that the Defendant drove a vehicle recklessly, the State must prove beyond a reasonable doubt that the Defendant was aware that he was operating a motor vehicle in such a manner or under such circumstances as to create a substantial and unjustifiable risk of death to another.
The State must also prove beyond a reasonable doubt that the Defendant consciously disregarded this risk and that the disregard of the risk was a gross deviation from the way a reasonable person would have conducted himself in the situation.
In determining whether the State has proven beyond a reasonable doubt that Defendant acted recklessly, if you decide that Defendant was intoxicated, Defendant's unawareness of a risk due to self-induced intoxication is immaterial.
In other words, you may find that the State has proven recklessness beyond a reasonable doubt even through the Defendant was unaware of the risk of which he would have been aware were he not intoxicated.
Recklessness is a condition of the mind that cannot be seen, and that can often be determined only from inferences, from conduct, words or acts.
It is not necessary for the State to produce a witness to testify that the Defendant stated that he acted with a particular state of mind. It is within your power to find that proof of recklessness has been furnished beyond a reasonable doubt by inferences that may arise from the nature of the acts and circumstances surrounding the conduct in question.
The court additionally noted that the State had alleged that defendant had operated the vehicle in violation of certain motor laws, specifically the laws against careless driving, driving while intoxicated and reckless driving. The court explained the elements of those laws. The court also explained that there is a difference between reckless driving and careless driving. The court stated, among other things, that one could "equate careless operation to negligent operation of a motor vehicle as opposed to reckless operation of a motor vehicle."
During its deliberations, the jury sent a note to the court and asked it to explain the difference between "careless and reckless driving laws." After consulting with the attorney, the court repeated its instruction on vehicular homicide. The court again instructed the jurors on the meanings of the terms "recklessly" and "carelessly." The court emphasized that, in this case, the jury was to determine whether the defendant caused a death by driving a vehicle "recklessly."
Defendant argues that the court should have further clarified the differences between "recklessly" and "negligently" by providing the jury with illustrative examples. In support of this argument, defendant relies upon State v. Concepcion, 111 N.J. 373 (1988).
In Concepcion, the defendant was charged with reckless manslaughter. Id. at 376. After it had been instructed on that offense, the jury asked the trial court for clarification of the meaning of "recklessness" Id. at 378. The trial court again read the definition of that term. Id. at 378-79.
The Supreme Court held that the trial court should have explained the concept of recklessness by comparing it to other mental states. Id. at 381. The Court added that the jury's understanding of the differences between the mental states "could have been enhanced . . . by illustrative examples." Ibid.
In our view, defendant's reliance upon Concepcion is misplaced. Here, the court provided the jury with the definition of the term "recklessly" as well as the definition of the term "carelessly." The court noted that careless driving is negligent driving. The court emphasized that vehicular homicide involves reckless conduct, not careless or negligent conduct. While Concepcion indicates that these concepts could be further clarified with illustrative examples, such examples are not required in every case. Illustrative examples were not required here.
Defendant also relies upon State v. Atwater, 400 N.J. Super. 319 (App. Div. 2008). There, the defendant was found guilty of first-degree vehicular homicide and other offenses. Id. at 323. During its deliberations, the jury asked whether vehicular homicide could be intentional or unintentional. Id. at 328. The defendant's attorney requested that the court instruct the jury on negligence. Id. at 328-29. The court refused to do so. Id. at 330.
On appeal, the defendant argued that the trial court erred by failing to clarify the difference between negligent and reckless conduct. Id. 331. We held that the jury had been presented with evidence indicating that the defendant may have acted negligently. Id. at 332. We noted that the record revealed the jury was confused as to the meaning of "reckless" and the court should have compared "reckless" with other mental states, such as negligence. Ibid.
In our view, Atwater does not support defendant's argument. As we explained previously, the trial court in this case instructed the jury on the concept of carelessness. The court compared recklessness to carelessness and made clear that the charge at issue required proof beyond a reasonable doubt of recklessness. While we held in Atwater that the jury's instruction "left the jury without guidance to evaluate the evidence in light of the applicable law," that was not the case here. The instructions were accurate and understandable and provided sufficient guidance to the jury for its deliberations.
Next, defendant argues that the trial court erred by denying his motion for a judgment of acquittal. He argues that the evidence was insufficient to support a conviction for vehicular homicide. Again, we disagree.
When a defendant seeks a judgment of acquittal pursuant to Rule 3:18-1, the trial court must determine "'whether, viewing the State's evidence in its entirety . . . and giving the State the benefit of all of its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt . . . beyond a reasonable doubt.'" State v. Wilder, 193 N.J. 398, 406 (2008) (quoting State v. Reyes, 50 N.J. 454, 459 (1967)).
Here, the State presented sufficient evidence from which the jury could find that defendant was driving Decker's vehicle at the time of the accident; that defendant was intoxicated at the time of the accident, which supported a finding of recklessness; and defendant's reckless driving caused Rude's death.
Defendant contends that Decker's testimony showed that he did not exhibit any outward signs of intoxication, but he fails to acknowledge that Decker testified that she was drunk when she made these observations. Furthermore, Dr. Brick testified that defendant had a BAC of or between .16 and .20 at the time of the accident, and a person's outward sign of intoxication does not always reflect his actual level of impairment.
Defendant also contends that the State failed to present sufficient evidence to establish that he caused Rude's death. He relies heavily on the fact that Rude was not wearing a fastened seat belt at the time of the accident. However, the State presented evidence from which a reasonable jury could find that Rude was ejected from the car as a result of defendant's recklessness, and Rude would not have died if defendant had not driven the car recklessly, lost control and crashed the vehicle.
We therefore conclude that the trial court correctly found that defendant was not entitled to a judgment of acquittal.
Defendant additionally argues that his sentence is excessive. Again, we disagree.
The trial court found aggravating factors three, N.J.S.A. 2C:44-1(a)(3) (risk that defendant will commit another offense); and nine, N.J.S.A. 2C:44-1(a)(9) (need to deter defendant and others from violating the law). The court also found mitigating factors two, N.J.S.A. 2C:44-1(b)(2) ("defendant did not contemplate that his conduct would case or threaten serious harm"); and seven, N.J.S.A. 2C:44-1(b)(7) (defendant had no prior history of criminal activity).
Defendant contends that the court also should have found mitigating factors four, N.J.S.A. 2C:44-1(b)(4) (substantial grounds tending to excuse or justify defendant's conduct); five, N.J.S.A. 2C:44-1(b)(5) (the victim induced defendant's conduct or facilitated its commission); eight, N.J.S.A. 2C:44-1(b)(8) ("defendant's conduct was the result of circumstances unlikely to recur"); nine, N.J.S.A. 2C:44-1(b)(9) (defendant's character and attitude indicate that he is unlikely to commit another offense); and ten, N.J.S.A. 2C:44-1(b)(10) (defendant is particularly likely to respond to probationary treatment).
The trial court found that the record did not support findings on these mitigating factors. The court stated that: 1) probationary sentencing was not appropriate; 2) there was no evidence that anyone influenced defendant to engage in the conduct for which he was found guilty; 3) there was no basis for concluding that the circumstances would not reoccur or that defendant would not reoffend; 4) Rude did not induce the commission of the offense; and 5) there was no basis to excuse defendant's conduct.
We are satisfied that the record fully supports the court's findings on the aggravating and mitigating factors. We are convinced that defendant's sentence is not manifestly excessive or unduly punitive, does not represent an abuse of the court's sentencing discretion, and does not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).