On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 04-12-1754.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 28, 2011
Before Judges Lihotz and Waugh.
Defendant Samander S. Dabas appeals from his conviction for the purposeful or knowing murder of his wife Renu Dabas, in violation of N.J.S.A. 2C:11-3(a)(1) or (2) (count one), and the knowing attempt to leave the scene of a fatal motor vehicle collision, in violation of N.J.S.A. 2C:5-1 and 2C:11-5.1 (count two). We affirm the conviction for attempting to leave the scene of a fatal accident, but reverse the murder conviction and remand for a new trial.
We discern the following facts and procedural history from the record on appeal, particularly the transcripts of the motion to suppress and the trial.
Samander*fn1 was born in India. He lived in New Jersey with Shushila and Jitander Khatri, his sister and brother-in-law, from 1990 until his first marriage in 1991. After his divorce in 2000, he resumed living with the Khatris. In the spring of 2003, Samander went to India, where he entered into an arranged marriage with Renu. Although Samander returned to New Jersey shortly after the marriage, Renu could not accompany him because she did not have the required visa. Renu obtained the visa and joined Samander in late July 2004.
In 2004, Samander was working seven days a week at a manufacturing company. He also worked two to three times a week at Dollar City, a store owned by the Khatris and located in South Brunswick Square Mall (Mall).
On Tuesday, August 24, 2004, Halah Shal was working at Dollar City, expecting Shushila to relieve her between 5:00 and 6:00 p.m. Prior to that time, however, Shushila telephoned Shal and told her that Samander would be coming in her place.
Samander arrived at approximately 5:10 p.m., accompanied by Renu. Shal observed them walking the aisles of the store and talking, after which Samander went to the back of the store to open boxes. Shal left at about 5:30 p.m.
Between 9:15 and 9:25 p.m. that evening, Heather Porcello, an employee of a tanning salon at the Mall, heard "a loud bang noise" that she described as "almost like a car backfiring" in the parking lot. She looked out the front window and saw "a van kind of jerked to a stop right in front of the salon," approximately twenty to thirty feet away. She observed smoke coming out of the hood of the car. There were no other vehicles moving in the parking lot at that time.
Jessica Almodovar, the receptionist at a hair salon adjacent to the tanning salon, heard a loud noise from the direction of the parking lot. About ten seconds later, an employee who had been standing at the front door of the salon told Almodovar to call 9-1-1 because there had been an accident.
When Almodovar looked out, she noticed a woman, eventually identified as Renu, lying on the curb, and a man, eventually identified as Samander, standing by the van. The man was looking under the hood and then got into the driver's side of the van.
Laura Lako, another employee at the hair salon, went to the tanning salon and told Porcello a van had driven "crazily" through the parking lot and someone was laying on the ground. Porcello went outside and observed Renu lying "along the curb to the left of the tanning salon, a ways down," in front of a jewelry store. When Porcello looked toward the minivan, she observed a man, described as in his forties and of "Asian-Indian descent," standing by the vehicle "messing around with the hood, maybe trying to fix it." According to Porcello, the man "would play around with the hood of the van for a little bit, and then . . . walk around to the driver's side part of the vehicle." Porcello never saw the man walk over to Renu, who was laying motionless on the ground.
Officer Robert Jairdullo of the South Brunswick Township Police Department arrived at the Mall shortly thereafter. He observed a black minivan with front-end damage parked in the area in front of the jewelers. Samander was seated in the front driver's seat, attempting to start the van. When Jairdullo reached the van and asked Samander what had happened, he "shrugged his shoulders." Jairdullo noted "an odor of alcohol coming from his breath" and that he had "red glassy eyes." When Jairdullo asked Samander whether he had been drinking, he responded "yes."
After Almodovar drew his attention to Renu's body laying on the curb, Jairdullo ran over to her. According to Jairdullo, Renu lay on her back, "[h]er feet were on the sidewalk, and her head and upper body were in the No Parking lane of the drive lane." At that time, she was unconscious and did not appear to be breathing. Blood was flowing from her ears and nose.
After observing Renu, Jairdullo went back to the van, asked Samander to exit the vehicle, and placed him in the back of his patrol car for "safekeeping" so that he "could ascertain what had happened." Jairdullo did not formally place Samander under arrest or handcuff him when he put him in the patrol car. He did not observe Samander having any difficulty walking over to the police car, and characterized him as "[c]alm, cooperative, [and] alert."
Jairdullo returned to Renu to ascertain the extent of her injuries. He found that she had no pulse. At approximately 9:34 p.m., two paramedics arrived and began to administer first aid. Renu was unresponsive, exhibited signs of head injury, and was losing blood from her ears, nose, and mouth. One of the paramedics noted that Renu had a "large laceration to the left arm, and bruising . . . to both her arms and her legs." Renu's heart stopped beating at about 9:43 p.m., at which time CPR and intubation were initiated.
Jairdullo and Patrolman Michael Pellino, who had recently arrived at the scene, attempted to find witnesses to the collision, but were unsuccessful. As Patrol Officer Laszlo Nyitrai arrived to take over the investigation, the paramedics were leaving the scene with Renu in an ambulance.
Nyitrai observed "a blood spot on the pavement near [the] jewelers, where the victim had been found laying," as well as the location of the minivan. He went over to Samander in the backseat of Jairdullo's patrol car and "observed that there was a strong odor of an alcoholic beverage coming from his breath" and that "his eyes were both bloodshot and watery." Nyitrai described Samander as alert and coherent.
Nyitrai asked Samander what had happened. Samander responded that he had had an accident. He said that Renu had initially been in the van, but "was not in the van in the end" and that he did not know why. Samander told Nyitrai that he had been drinking whiskey that evening.
Nyitrai placed Samander under arrest for driving while intoxicated
(DWI). Nyitrai advised Samander of his Miranda rights.*fn2
According to Nyitrai, he had no difficulty understanding
Samander, who appeared to speak and understand English. After Samander
had been handcuffed and placed in a police car, Nyitrai asked whether
he could ask him questions. Samander responded "no." Nyitrai did not
ask further questions at the scene.
At 10:30 p.m., Sergeant Michael Kushwarra directed Jairdullo and Pellino to bring Samander to a hospital for blood-alcohol testing. Kushwarra also ordered Pellino to read the Miranda warnings to Samander while transporting him to the hospital.
Jairdullo and Pellino drove Samander to Robert Wood Johnson University Hospital. According to Jairdullo, Samander was "calm [and] alert" during the drive to the hospital. Pellino noted an odor of alcohol "emanating from his breath" and that "[h]is eyes were bloodshot and watery," but described his demeanor as "calm, polite, cooperative, [and] coherent."
During the ride to the hospital, Pellino read Samander his rights verbatim from a Miranda card. Prior to reading the rights, Pellino activated a video camera mounted near the rearview mirror of the patrol car, and turned the camera so that it was facing Samander. Samander told Pellino he could not hear because of the plastic partition between the front and back seats of the patrol car. Pellino opened the partition and reread the warning, after which Samander acknowledged that he understood them. Neither Jairdullo nor Pellino questioned Samander during the trip to the hospital.
Jairdullo and Pellino arrived at the hospital at about 11:00 p.m. and brought Samander to the emergency room. Nancy Langill, an emergency room nurse, evaluated Samander, a routine procedure for patients involved in motor vehicle accidents. Her nursing notes reflected that she smelled alcohol on his breath, which caused her to conclude that he had consumed alcohol prior to arriving at the hospital. Langill assessed Samander's neurological status as normal. Langill's ...