On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 08-06-1477.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: September 21, 2011
Before Judges Axelrad, Sapp-Peterson and Ostrer.
Defendant Scott Bennett appeals from his conviction and sentence in this vehicular homicide case in which defendant killed one person and seriously injured another person. Defendant challenges: the court's denial of his pretrial motions to suppress and to sever; evidentiary rulings during trial; and the court's response to a jury question and its instructions to the jury. He further asserts various instances of prosecutorial misconduct, which he contends require reversal of his conviction. Defendant also challenges the sentence as excessive. We affirm.
Defendant was charged by a Monmouth County Grand Jury in a fourteen-count indictment for charges arising from a motor vehicle accident occurring on October 7, 2007. Defendant was charged with second-degree eluding, N.J.S.A. 2C:29-2b (count one); first-degree aggravated manslaughter of Timothy Flanagan by eluding, N.J.S.A. 2C:29-2b and N.J.S.A. 2C:11-4a(2) (count two); first-degree aggravated manslaughter of Flanagan by recklessly causing his death under circumstances manifesting extreme indifference to human life, N.J.S.A. 2C:11-4a(1) (count three); second-degree vehicular homicide of Flanagan by driving recklessly, while intoxicated (N.J.S.A. 39:4-50 (DWI)), N.J.S.A. 2C:11-5a (count four); second-degree leaving the scene of a motor vehicle accident resulting in Flanagan's death, N.J.S.A. 2C:11-5.1 and N.J.S.A. 39:4-129 (count five); third-degree causing Flanagan's death while driving unlicensed or with a suspended license (N.J.S.A. 39:3-40), N.J.S.A. 2C:40-22a (count six); two counts of third-degree endangering an injured victim, Flanagan and Diane Oberley, N.J.S.A. 2C:12-1.2a (counts seven and thirteen); second-degree aggravated assault of Oberley by eluding, N.J.S.A. 2C:12-1b(6) and N.J.S.A. 2C:29-2b (count eight); second-degree aggravated assault by causing serious bodily injury to Oberley recklessly under circumstances manifesting extreme indifference to the value of human life, N.J.S.A. 2C:12-1b(1) (count nine); third-degree assault by auto of Oberley, while intoxicated (N.J.S.A. 39:4-50), N.J.S.A. 2C:12-1c(2) (count ten); fourth-degree leaving the scene of a motor vehicle accident resulting in serious bodily injury to Oberley, N.J.S.A. 2C:12-1.1 and N.J.S.A. 39:4-129 (count eleven); third-degree causing death or serious bodily injury to Oberley while driving unlicensed or with a suspended license (N.J.S.A. 39:3-40), N.J.S.A. 2C:40-22b*fn1 (count twelve); and third-degree resisting arrest, N.J.S.A. 2C:29-2a(3) (count fourteen).
Prior to trial, defendant moved to suppress evidence seized without a warrant, statements purportedly made by him to police, and for severance of count six of the indictment. Judge Ira E. Kreizman heard testimony on December 18, 2008, and January 8, February 10, and February 26, 2009. On February 26, 2009, the court denied defendant's motion to sever, setting forth its reasons on the record. The court denied defendant's motions to suppress evidence and his statements on April 23, 2009, again setting forth its reasons on the record.
Judge Kreizman then presided over a twelve-day jury trial that concluded on May 13, 2010. At the close of the State's case, defendant moved to dismiss the entire indictment, making arguments specific to counts nine, ten, eleven, and twelve. The court dismissed counts nine through twelve, but denied defendant's motion as to the balance of the indictment. At the close of trial, the jury returned its verdict, unanimously finding defendant guilty of all the remaining counts of the indictment as charged except count fourteen, fourth-degree resisting arrest, instead finding him guilty of the lesser-included offense of disorderly persons resisting arrest.
After trial, defendant moved for a new trial or, alternatively, judgment notwithstanding the conviction. The court denied both motions. Although Judge Kreizman granted the State's motion for an extended term, N.J.S.A. 2C:44-3a and N.J.S.A. 2C:43-7a(1), he did not impose it. Instead, he sentenced defendant within the ordinary range to an aggregate custodial term of forty-four years, with a twenty-eight year parole disqualifier under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Judge Kreizman found aggravating factors two, the gravity and seriousness of harm inflicted on the victim, three, the risk defendant will commit another offense, six, the extent of defendant's prior criminal record, and nine, the need for deterrence. N.J.S.A. 2C:44-1a(2), (3), (6), (9). He found no mitigating factors. N.J.S.A. 2C:44-1b.
The judge merged counts one, eluding, and four, vehicular homicide of Flanagan, with count two, aggravated manslaughter of Flanagan by eluding, which he then merged with count three, aggravated manslaughter of Flanagan, and sentenced defendant to a twenty-five year custodial term with an 85% parole disqualifier pursuant to NERA. On counts five, leaving the scene of a fatal accident, seven, endangering an injured victim (Flanagan), eight, aggravated assault of Oberley by eluding, and thirteen, endangering an injured victim (Oberley), the court imposed consecutive custodial terms of five years, three years, eight years subject to NERA, and three years, respectively. On counts six, causing the death of Flanagan while driving with a suspended license, and fourteen, the lesser-included offense of disorderly persons resisting arrest, the court imposed concurrent custodial terms of three years and six months, respectively. The appropriate fines and penalties were also imposed.
Defendant asserts the following arguments on appeal:
THE TRIAL COURT ERRED IN DENYING THE MOTION TO SEVER COUNT SIX FROM THE BALANCE OF THE INDICTMENT FOR A SEQUENTIAL TRIAL TO AVOID THE UNFAIR PREJUDICE OF ADMITTING N.J.R.E. 404(B) PRIOR BAD ACTS EVIDENCE OF NUMEROUS IRRELEVANT DRIVING WHILE SUSPENDED CONVICTIONS.
THE TRIAL COURT SHOULD HAVE GRANTED A MISTRIAL WHEN ONE DEPUTY CLERK INDICATED TO THE JURY, CONTRARY TO THE COURT'S SPECIFIC ORDER, THAT A DRIVING WHILE SUSPENDED OFFENSE WAS THE RESULT OF A DRUNK DRIVING CHARGE. ALTERNATIVELY, THE TRIAL COURT'S DENIAL OF THE MISTRIAL MOTION AND ITS LIMITING INSTRUCTION WAS UNTIMELY AND INEFFECTIVE AND MANDATES REVERSAL OF THE CONVICTION.
THE TRIAL COURT INADEQUATELY RESPONDED TO THE JURY'S QUESTION ASKING FOR THE DEFINITIONS OF "PROBABILITY" AND "POSSIBILITY" AND ALSO IMPROPERLY CHARGED THE JURY THAT DWI WAS ONLY ESTABLISHED THROUGH A BLOOD ALCOHOL [CONCENTRATION] OF .08 PERCENT OR HIGHER REQUIRING REVERSAL OF THE CONVICTION AND A NEW TRIAL (PLAIN ERROR).
THE TRIAL COURT ERRED IN DENYING THE DEFENSE MOTION FOR EITHER A JUDGMENT OF ACQUITTAL OR FOR A NEW TRIAL AS THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE, PARTICULARLY WITH REGARD TO THE CHARGE OF AGGRAVATED MANSLAUGHTER.
VARIOUS INSTANCES OF PROSECUTORIAL MISCONDUCT OCCURRED IN THIS MATTER REQUIRING REVERSAL OF THE CONVICTION.
THE TRIAL COURT IMPROPERLY DENIED PRETRIAL MOTIONS TO SUPPRESS PHYSICAL EVIDENCE AND DEFENDANT'S STATEMENTS. SAID MOTIONS SHOULD HAVE BEEN GRANTED AND THE FAILURE TO DO SO REQUIRES REVERSAL OF THE CONVICTION AND A REMAND FOR NEW TRIAL WITH THE SUPPRESSION OF THE IMPROPERLY ADMITTED EVIDENCE.
THE CUMULATIVE ERROR COMMITTED IN THIS CASE REQUIRES THE REVERSAL OF THE CONVICTIONS AND SENTENCE.
THE SENTENCE IMPOSED IN THIS CASE WAS EXCESSIVE AND UNCONSTITUTIONAL.
Based on our review of the record and applicable law, we are not persuaded by any of defendant's arguments. Accordingly, we affirm his sentence and conviction.
At the hearing on the in limine motions, the State presented the testimony of Patrolman Charles Alaimo of the Manalapan Township Police Department; Chief Mitchell Roth and Patrolman Christopher Otlowski of the Borough of Freehold (Borough) Police Department; Chief Ernest Schriefer, Lieutenant John Todd, Detective William Rette, and Patrolmen Christopher DeAngelo, Thomas Goetke, and Joseph Winowski of the Freehold Township (Township) Police Department; Detective Arthur Wisliceny of the Monmouth County Prosecutor's Office; Borough Municipal Court Clerk Tracy DiBenedetto; and Township Municipal Court Clerk Theresa Warner.
On October 7, 2007, at approximately 6:30 p.m. Patrolman Alaimo was on duty in an unmarked police vehicle, at the intersection of Thompson Grove Road and Kinney Road in Manalapan Township. He observed a black SUV rounding the corner of Kinney Road "at an extremely high rate of speed" and "crossing over the yellow line." The officer then began pursuit of the SUV, which he estimated was traveling seventy miles per hour in a thirty-five miles per hour zone, through the residential area. Patrolman Alaimo activated his siren and flashing lights after the SUV turned right onto Gravel Hill Road, which also activated the mobile video recorder (MVR) camera system that recorded the events occurring in front of his vehicle. Patrolman Alaimo believed the SUV was "trying to elude" him, and he called dispatch to notify the Township of the pursuit as the vehicle was heading in that direction.
Patrolman Alaimo stated he lost visual observation of the SUV momentarily due to the hills and valleys on Gravel Hill Road. He regained sight of the vehicle approximately 100 yards south of him. The SUV approached the intersection of Gravel Hill Road and Route 537, appeared to brake but did not stop at the stop sign on Gravel Hill Road, and went through the intersection. A motorcycle traveling east on Route 537 struck the SUV, catapulting the motorcycle's driver and passenger onto the roadway, and causing the SUV to spin on two wheels. After the SUV came to rest, "the driver hit the gas and fled the scene," running over the male motorcycle driver, Flanagan, who was lying in the roadway.
As the SUV spun upon impact and landed, Patrolman Alaimo, less than fifty feet away, viewed the driver of the SUV through the driver's side window, describing him over the dispatch radio as a Caucasian male, "mid to late 30's with sandy brown hair and a light shirt." The officer then sought to secure the accident scene and render first aid to the victims. He believed Flanagan, the driver of the motorcycle, had succumbed to the massive head trauma sustained during the collision because he did not appear to be breathing, his eye had been pushed out of his skull, which was severely crushed, and part of his skull was missing.
Meanwhile, Patrolman Otlowski had heard the description of the SUV and its driver over his radio and spoke to another officer who mentioned that a man who matched defendant's description had recently been stopped in a black SUV for driving with a suspended license. Patrolman Otlowski was familiar with defendant's "extensive criminal history," felt defendant matched the description of the suspect, and was also aware defendant lived on Gravel Hill Road in the Township, not far from the scene of the accident. The officer called dispatch to contact the Township and suggested checking the area of defendant's house but was told the Township was too short-handed and busy dealing with the accident scene to do so.
Patrolman Otlowski received permission from his sergeant and from Lieutenant Todd, the highest ranking Township officer on duty that night, to enter the Township to check defendant's house for the SUV and determine whether it was damaged. Patrolman DeAngelo also received permission to assist from his sergeant at the scene, and he and Patrolman Alaimo joined Patrolman Otlowski at defendant's house.
As Patrolman Otlowski pulled up to the house, he observed defendant crouched behind a black SUV, holding what appeared to be a blanket over the rear passenger side of the vehicle. As Patrolman Otlowski pulled into the driveway, and defendant saw the headlights, he released the blanket, which caught on the SUV, partially draping it. The officer requested back-up from Lieutenant Todd and exited the patrol car.
Patrolman Otlowski told defendant to come out from behind the vehicle, which he did, and said, "what's up officer?" At this point, the two were approximately twelve feet apart. The officer noticed defendant's speech was slurred; as he got closer to defendant he saw his eyes were glassy and watery, and he also smelled alcohol on him. The officer then asked defendant if he knew anything about the accident that occurred nearby. Defendant replied that he had been home all night.
As the officer got closer to the vehicle, he smelled "fluids that you smell at an accident scene" such as gasoline and transmission fluid. Patrolman Otlowski saw damage to the right rear quarter panel of the SUV and the portion of the window not covered by the blanket was "smashed out." When asked how the damage occurred, defendant said someone had "busted out his window" about an hour ago.
After observing bloody, human flesh hanging from the glass remaining on the molding of the window, Patrolman Otlowski informed defendant he was under arrest. Defendant then turned to run and stumbled, almost falling, and disregarded the officer's demand to stop because he was under arrest. Patrolman Otlowski pursued defendant into the backyard, approximately sixty feet, was able to apprehend him, and a "pretty violent struggle" ensued. The officer then took defendant to the SUV and pinned him against the hood. Defendant continued to resist and the officer drew his weapon, pointed it at defendant, and directed him to stop resisting. At that point, defendant stopped resisting and backup, including Patrolman DeAngelo, arrived and assisted in handcuffing defendant. Defendant was then searched, revealing an unopened bottle of rum, and was placed in Patrolman DeAngelo's vehicle, where he was read his Miranda*fn2 rights.
When Patrolman Alaimo arrived at defendant's home, he positively identified defendant as the person involved in the accident. After moving the blanket, the officer observed damage to the vehicle and "organic matter and blood" on it consistent with the events at the accident scene. The officer also made a positive identification of the SUV through a comparison of the decal on the rear driver's side window and the MVR tape.
At Lieutenant Todd's request, Patrolman Otlowski accompanied Patrolman DeAngelo and defendant to CentraState Hospital where defendant consented to provide blood and urine samples. Defendant made multiple statements after being taken into police custody. While waiting to have blood drawn, defendant asked Patrolman Otlowski, "did the guy live?" The officer did not respond.
When Lieutenant Todd arrived at the hospital, defendant was watching a football game. As the lieutenant, who knew defendant previously, poked his head into the room to check the score, defendant asked, "how's the guy on the motorcycle?" When Lieutenant Todd did not respond, defendant said, "[c]ome on, Lieutenant, how is he? Is he ok?" The lieutenant denied knowing the status of the injured man.
After having been contacted by an attorney on behalf of defendant, Detective Rette arrived at the hospital and instructed the officers not to question defendant. Once medically cleared, defendant was transported to police headquarters and placed in a cell overnight. Several times during the night, Patrolman DeAngelo, who had the overnight shift, checked on defendant. Without prompting, defendant asked the officer, "is he going to be all right, maybe he's okay." When the officer responded that he did not know, defendant then said, "this is so bad, I never did nothing like this before." The officer told defendant he did not have to talk to him, but defendant replied, "I know, I know, but I'm going away for the rest of my life." He then said, "I'm never going to see my mother again. By the time I get out my mother will be dead." Patrolman DeAngelo suggested defendant go to sleep. Instead, defendant stated, "well, I'm going to jail forever, I never did anything this bad before." Defendant then said, "maybe he'll be ok." No officer had informed defendant of the extent of the injuries to the motorcycle victims.
Patrolman Winowski replaced Patrolman DeAngelo at 8:00 a.m. Defendant said to the officer "I hope the guy is okay. I'm starting to think he's not okay, and that's why I'm still here." The officer did not respond to the statement.
As Detective Rette processed defendant, defendant asked if he was being charged with death by auto. Defendant then asked to call his mother, and when the detective warned him the telephone line was taped, defendant said he still wanted to make the call. Detective Rette overheard defendant asking his mother to speak with the lawyer to reduce his bail so he could complete his dental work, stating, "I'm going to do 10 years ...