On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 08-03-0779.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 2, 2011
Before Judges Fuentes, Graves, and Harris.
Defendant John V. Lombardo, Jr., was convicted by a jury of second-degree vehicular homicide, N.J.S.A. 2C:11-5(a), and found guilty by the trial judge of two non-indictable traffic offenses: driving while intoxicated (DWI), N.J.S.A. 39:4-50, and reckless driving, N.J.S.A. 39:4-96. The judge sentenced Lombardo to an aggregate eight-year custodial term subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, together with a consecutive two-year driver's license revocation.
Lombardo appeals the trial court's rulings (1) denying his motion for a new trial because of the manner and content of the prosecutor's summation, (2) admitting the use of evidence of prior convictions for impeachment, (3) imposing an excessive sentence, and (4) failing to merge the conviction for DWI with the conviction for vehicular homicide. We affirm.
These are the facts derived from the trial record. On the evening of June 2, 2007, Theresa Kling and her fiance Michael Crowell decided to take a motorcycle ride together. Crowell was an experienced motorcyclist of over twenty years, while Kling had obtained a learner's permit only three months earlier. Crowell owned Primavera Pizza, located on Route 537 in Freehold.
As the motorcyclists approached the intersection of Routes 537 and 527 in Freehold around 1:00 a.m., Crowell observed what he described as a truck coming from the opposite end of the intersection (heading towards him and Kling) and make a left turn across the intersection without yielding. When the truck turned Kling was already three or four feet into the intersection. She tried to take evasive action and brake, but the rear wheel began to slide. According to Crowell, as the truck "was coming through the intersection, [it] didn't slow down. [It] just hit [Kling], and [it] continued to run over her, the top of [Kling]." At this moment, Crowell was approximately five feet behind the collision, but was able to stop. The truck initially slowed down, but "[t]hen [the driver] sped up" and continued onto Route 527 "without stopping." Crowell testified that the truck was "a dark green, very dull paint job."
Crowell ran to Kling, who's "condition was dire." He immediately dialed 9-1-1 for emergency assistance. Freehold police officers Earl Cain and Scott Keenan were the first to respond to the scene of the accident, at approximately 1:11 a.m. Officer Keenan testified that when he arrived at the scene of the accident, Crowell and several bystanders were standing at the corner and Kling "was conscious and bleeding from the mouth, and there was [other] blood, [but Keenan] couldn't tell the other areas she was bleeding from."
Paramedics reached Kling a few minutes later. One paramedic testified that when she arrived, Kling was "totally unresponsive, not moving." The paramedics moved the victim into an ambulance, "did a quick assessment," and drove to the local trauma center at Jersey Shore Medical Hospital. Kling died less than twenty-four hours later of traumatic brain injuries.
Meanwhile, Lieutenant Lawrence Loos was the next police officer to arrive on the scene. He learned that the vehicle that caused the accident was "a large dark green van . . . [that] left going south on [Route 527]." Loos left the scene of the accident traveling fast on Route 527 to look for the vehicle. Shortly, Loos came upon "a black pickup [truck], which had pulled off onto the shoulder." Lombardo was behind the pickup truck, with his back to the road, urinating into the grass. When Loos approached, Lombardo blurted out, "Oh, shit . [m]y brother-in-law is a sergeant in Barnegat." Loos observed Lombardo "unsteady on his feet" and using the pickup truck's tailgate to support himself. Loos further detected "a very strong odor of alcoholic beverage on [Lombardo's] breath" and that defendant's eyes were "very glassy, moderately bloodshot."
Loos believed that Lombardo was likely intoxicated, and he accordingly approached the pickup truck to make sure Lombardo did not drive away. Loos "noticed that the front right tire was flat and actually was shredded, that the rim was damaged as if it had been ridden on for a significant distance." Upon seeing this damage, Loos began to suspect that Lombardo had been involved in Kling's accident. Loos asked Lombardo where the damage came from, and Lombardo responded that "he didn't hit anything."
Loos asked Lombardo to perform field sobriety tests. Lombardo was unable to perform the tests as instructed, and he was placed under arrest for driving while intoxicated. Later, Lombardo submitted to a Breathalyzer test. Two tests were performed, at 3:09 a.m. and 3:17 a.m., and both produced blood alcohol concentration readings of 0.19 percent.*fn1
On June 20, 2007, the police executed a search warrant for Lombardo's pickup truck. A forensic report dated September 11, 2007, found a multi-layered piece of chrome-plated plastic embedded in Lombardo's bumper that "physically and chemically compared to the handlebar end cap from [Kling's] motorcycle." The report also found Plexiglas on Lombardo's "bumper/spoiler" that "physically and chemically compares to [Kling's] clear motorcycle windshield." The report noted that impact-resistant Plexiglas was "not typically found on automobiles," but was "commonly used as a windshield" on motorcycles.
Before trial, defense counsel objected to the introduction of Lombardo's prior convictions in the event he chose to testify. These convictions were from 2000 and 2005, and both were "simple possessory offenses" of controlled dangerous substances. The trial judge decided he would allow the State to introduce "the indictment number, the degree of the crime (but not identifying the crime), the date of the sentence, and the ultimate sentence." The judge concluded that admission of Lombardo's prior convictions, in this prescribed format, "are admissible as far as being used to affect the credibility of the defendant."
During summation, defense counsel argued "[t]his trial is about justice for John Lombardo," because "John Lombardo did not cause [Kling's] death." To this point, defense counsel argued that "[t]he [S]tate's theory in this case . . . defies common sense. It defies all logic. It defies eyewitness accounts." He further urged the jury not to compound the "tragedy" of Kling's death "by taking the life of another person just because of vengeance, just because you want a sense of revenge." Defense counsel emphasized the following:
You think [Lombardo]'s mad? You think he's mad? You think his life has been ruined as a result of this? Don't ruin it any further, ladies and gentlemen.
Defense counsel categorized the forensic evidence presented as "[a] particle, a smear." He offered alternative theories about how the accident happened and how the forensic evidence found on Lombardo's truck could have gotten there.
Defense counsel also argued that the evidence presented by the State could be viewed as supporting the notion that Crowell may have struck Kling with his motorcycle, thereby causing her death:
A theory that seems more likely, based on what you can see, is that the front tire locked up and this bike went down. And maybe Mike Crowell, while looking to the side, sees in front, sees that bike lock up, front tire, boom, goes down, she's sliding. It is quite possible that the angle that he was heading - and they show the skid marks. He's on the right hand side at [fifty] miles an hour. I'll give him the benefit of the doubt, let's say [fifty] miles an hour. He goes, boom, boom, boom, over [Kling's] bike. Because what would you have done in that situation when you called 9-1-1? . . . He didn't [yell that a green van took off up Route 527] -- he didn't even give this story until [five] minutes later when the police arrived. Maybe in his remorse over having been the person who encouraged [Kling] to get a motorcycle, had her get a permit, took her out in the middle of the night for a three and a half hour motorcycle ride, bought her a motorcycle instead of an engagement ring, maybe he has remorse over this.. . . .
And maybe that theory holds no weight whatsoever. Maybe I'm the biggest jerk in this courtroom for even suggesting it, but its just as consistent. In fact, it's an even stronger theory than the one the government has given you.
Defense counsel also challenged the impartiality of the police officers who investigated the case by speculating about the existence of a relationship between the police officers and Crowell:
Keenan was one of the first guys on the scene, and that's been testified to, and you can hear that from the dispatch tapes. And he said that Crowell told them that [Kling] was hit by a van. She was hit by a van. I don't know why this didn't send the police officers scrambling down other routes when they realized there was no evidence whatsoever that she was hit by a van. There is no evidence that she was hit by a van, or you would have heard it. Maybe it's because [the police officers] want to keep in good graces with their pizza buddy. He knows all of them. They've all been in his restaurant. You have to evaluate that when determining credibility.
When it was the State's turn for summation, the prosecutor's first remarks were the following:
The police wanted to keep in the "good graces" of their "pizza buddy"[?] Did anyone find that in the least bit offensive, that and the "fiance"[?] And the mocking tone in which he described the testimony of Michael Crowell."
Defense counsel immediately requested a sidebar conference, where he argued that "the prosecution cannot demean the role of a defense attorney in his closing statement." The trial judge agreed, but noted that defense counsel himself stated "that people may be disgusted with what [he was] saying." The judge overruled the objection, but ...