December 5, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
SCOTT BENNETT, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 for this. I'll get my teeth done, then I'll go and do my time." The detective requested the tape be maintained.
Detective Wisliceny testified that pursuant to a search warrant obtained by members of the Major Crimes Bureau, he photographed the SUV at defendant's residence after defendant had been removed from the scene. He identified photographs that depicted the SUV as it appeared when he arrived, showing damage to the vehicle not hidden by the blanket. He later moved the blanket for additional photographs. Detective Rette testified that pursuant to the search warrant, after the SUV was impounded, blood and flesh samples were taken off the vehicle, and testing revealed they matched Flanagan's DNA. Transfer paint samples that were also taken from the SUV and Flanagan's motorcycle positively matched one another.
Municipal Court Clerks DiBenedetto from the Borough and Warner from the Township testified as to respective governing body resolutions in effect at the time of the accident authorizing participation in the mutual aid agreement with Monmouth County. Borough Police Chief Roth and Township Police Chief Schriefer explained their longstanding "working relationships" in emergency and non-emergency matters. Chief Schriefer described the Borough as "the doughnut hole of Freehold Township," with the Township being the doughnut, explaining there are situations where Township police could be crossing through the Borough, come upon an accident that has not been reported, and secure the scene and alert the Borough police. He also testified the officer in charge during a particular shift makes the decision whether to request assistance from the Borough. Chief Schriefer stated that on the night of the collision he was aware Lieutenant Todd was in charge and had granted Patrolman Otlowski permission to assist in the investigation of the collision.
In support of his motion to sever count six of the indictment, charging defendant with causing death while driving with a suspended license, defendant argued that the issue of whether his license was suspended at the time of the collision was not probative as to recklessness, and admitting the evidence would be unduly prejudicial because it would involve a "mini trial" for driving while suspended. The State countered that the crime underlying count six, driving while suspended, was committed during the same episode as the crimes underlying the other thirteen counts of the indictment. Therefore, the same evidence that would be admitted at trial to prove those elements would be admissible at a separate trial to prove the elements of the crime contained in count six.
Moreover, evidence of defendant's suspended license was relevant to prove his motive, i.e., his mens rea for committing count one eluding, count two aggravated manslaughter by eluding, and count eight, aggravated assault by eluding. Specifically, the State argued that evidence showing defendant was issued a summons for driving while suspended on October 4, 2007, three days before the accident, established defendant's motive to knowingly elude the police on October 7. In doing so, defendant sought to avoid being issued another summons for driving while suspended because of the serious consequences of subsequent convictions for that offense. The State also argued that the evidence was relevant to the issue of identity.
In a bench opinion on February 26, 2009, memorialized in an order of the same date, Judge Kreizman denied defendant's severance motion. He conducted a Cofield*fn3 analysis and determined the evidence was admissible pursuant to N.J.R.E. 404(b) as motive for the eluding-related charges. The judge was not satisfied, however, that there was enough similarity between the two incidents to prove defendant was the person operating the vehicle on October 7 because "[s]imply being a white male driving a black GMC Jimmy [three days prior] . . . [was] insufficient to establish a signature or unusual pattern such as would identify the defendant." The court noted the State had submitted in its papers that it did not plan to offer the evidence to show recklessness, which was consistent with the case law, nor did it plan to offer defendant's suspension to attack his character or impeach his credibility.
In an oral decision of April 23, 2009, memorialized in an order of the same date, Judge Kreizman also denied defendant's motion to suppress physical evidence and his statements to police. With regard to the physical evidence, the judge found, in pertinent part: (l) it was lawful for Patrolman Otlowski to enter into the Township with the permission of his sergeant and Lieutenant Todd, the Township watch commander, to investigate the crime in accordance with the longstanding mutual aid agreement in force on that date; (2) Patrolman Otlowski's entry onto the Bennett property was legal; and (3) although he found the search warrant was, in fact, signed after Detective Wisliceny took the photographs of the SUV, the taking of the photographs did not constitute a seizure and, alternatively, the plain view exception to the warrant requirement applied. As to defendant's statements, Judge Kreizman found defendant was in custody when he was placed under arrest at his residence, was administered his Miranda warnings by Patrolman DeAngelo when he was placed in the police car, and thereafter initiated conversations with at least four separate police officers. The judge concluded that no custodial interrogation occurred and defendant's Miranda rights were not violated because the officers did not make any comments that would be have been "reasonably likely to elicit incriminating statements" from defendant.
Patrolmen Alaimo, Otlowski and DeAngelo and Detective Rette testified at trial consistent in all important respects with their testimony at the pre-trial hearings. At trial, Patrolman DeAngelo elaborated upon the accident scene. He said when he arrived, Flanagan "appeared to be deceased" and Oberley was "screaming his name over and over again" for people "to help him." Flanagan had massive head injuries; "organic matter" was coming out of the top of his head and one of his eyeballs was hanging out of its socket. The officer checked his vital signs, confirming he was dead.
Detective Rette testified that, based on his observations of defendant, namely his glassy eyes, he believed defendant was intoxicated and decided to have a blood sample taken. He also testified that the chain of custody of blood, tissue, and paint samples taken from defendant's car, as well as DNA samples taken from Flanagan's body during the autopsy, were proper.
The video recording of the accident was played for the jury. The video depicted Patrolman Alaimo in pursuit of a black SUV with lights and sirens activated. As the SUV approached the intersection of Gravel Hill and Route 537, the driver momentarily tapped the brakes because a vehicle traveling west on Route 537 was entering the intersection. The SUV then entered the intersection, narrowly missing a second vehicle traveling east and a third vehicle traveling west on Route 537 that simultaneously passed in front of him. As is evident from both the clock on the videotape and direct observation of the events depicted thereon, defendant's car did not stop at the stop sign and did not even come to a "rolling stop." Immediately after the vehicles passed before him, defendant entered the intersection of Gravel Hill Road and Route 537, Flanagan's motorcycle struck the passenger side of the SUV, and Flanagan and Oberley were thrown from the motorcycle. Oberley was thrown out of the camera's view. Flanagan landed at the southeast corner of Route 537 and Gravel Hill Road. Without stopping, the driver of the SUV essentially did a "K-turn" on Route 537, and when entering back onto Route 537, clearly ran over Flanagan's head and torso.
Cheryl Verdon, who had been driving in her vehicle behind the motorcycle for about five to ten minutes before the accident, testified that the motorcycle was traveling approximately fifty miles per hour on Route 537, which was the speed limit. She observed the motorcycle was driven at a consistent speed the entire time and did not swerve or exhibit other signs of erratic driving. As they approached the intersection of Route 537 and Gravel Hill Road, she observed a dark colored SUV go through the stop sign, saw white smoke coming from the back of the motorcycle, "heard a really loud pop," and saw the people on the motorcycle being "tossed up into the air" and land on the pavement.
Lori Parillo, who lives on Gravel Hill Road near the intersection with Route 537, was standing in her driveway with her husband and family members at the time of the collision. She heard sirens and then a crash, looked up, and saw two people fly through the air. She then observed a black SUV spin, turn around very fast and run over someone. Parillo went to the scene to render assistance and observed Flanagan moan and move.
Parillo's husband, Pietro, testified that after hearing sirens coming from the northbound side of Gravel Hill Road, he observed "a late model, dark SUV at a high rate of speed coming to the corner, pump on the brakes once, twice, slid through the stop sign, continued through 537," and saw the motorcycle hit the rear passenger side of the SUV. Both people on the motorcycle flew through the air and landed on Route 537. He also observed the SUV run over Flanagan and speed away.
Diane Oberley testified that Flanagan tried, but was unable, to avoid the collision. She also stated that Flanagan had consumed "a few" beers on the day of the accident.
Barbara Costanza, a registered nurse who drew defendant's blood on the night of the accident, testified that defendant consented to having his blood taken and the blood was taken and delivered to Patrolman DeAngelo pursuant to proper protocols. Agent Reginald Grant of the Monmouth County Prosecutor's Officer testified that he transported defendant's blood from the police station to the laboratory for testing on October 19, 2007.
Lieutenant Albert DeAngelis of the Crime Scene Unit of the Monmouth County Prosecutor's Office collected paint samples from the SUV and motorcycle for forensic testing. Testing at the state police lab showed transfer paint on defendant's SUV matched paint samples from the motorcycle. Paint chips matching defendant's vehicle were also found on Flanagan's leather bag.
Borough police officer Eduardo Santana testified that on October 4, 2007, he stopped defendant after discovering his license was suspended. Defendant was issued a summons for driving while suspended and the Black GMC Jimmy he was driving was impounded. Defendant subsequently pled guilty to that offense on January 15, 2008.
Township Deputy Municipal Court Administrator Jenny Zea-Acuna generally identified a motor vehicle summons issued to defendant, and testified that in January 1996 defendant pled guilty and was sentenced, in part, to a ten-year driver's license suspension. Howell Township Municipal Court Administrator Dominick Pondaco testified about two motor vehicle summonses issued to defendant. When he was asked to identify the first summons, Pondaco blurted out, "[t]his is a drunk driving offense." The prosecutor immediately asked, "No, it's a motor vehicle summons?" Pondaco responded, "It's a motor vehicle summons, yes." The prosecutor asked a few more questions about defendant's address and the defense moved for a mistrial, which was denied after Judge Kreizman said he would give a curative instruction. The prosecutor asked a few more questions and there was limited cross-examination, establishing that defendant lost his driver's license for a ten-year period following a guilty plea and sentence for that motor vehicle offense in March 1996, and for a consecutive ten-year period following his guilty plea and sentence in June 2006 for another motor vehicle offense. After Pondaco finished testifying, the court gave the following instruction:
You heard from the testimony of Mr. Pondaco as to the underlying charge. And this is not a case where the defendant is charged with drunk driving as a motor vehicle offense. You may hear it as part of the other offenses.
So remember I told you early on certain things I'm going to ask you not to consider. This is one of them. So when you add up those column of numbers, remember I told you add up 10 numbers, you eliminate that 10th number. You add them up.
So the reason for revocation at that stage is not something you should consider in this case. Don't consider that. As I told you it's hard not to consider things after you've heard them. But when you go into the jury room, remember, [t]he judge said don't consider it, so don't consider it.
The doctor who treated Oberley at Jersey Shore Medical Center testified that she sustained a cut thumb, concussion, a pubic bone fracture, and post-traumatic stress.
According to Dr. Andrew Falzon, the Middlesex County medical examiner, Flanagan's death was caused by "blunt force injuries of the head, neck, and chest" due to crushing of those organs and structures. The autopsy showed Flanagan survived the initial collision, but died due to the crushing effect of being run over by the SUV. Dr. Paul DiLorenzo, the defense's expert in the area of "traumatically induced orthopedic injuries," opined that Flanagan died immediately upon impact with defendant's vehicle of a fractured neck due to his sudden, frontal impact into defendant's vehicle. He disagreed with the medical examiner's opinion that Flanagan was killed by being run over by defendant's vehicle, concluding that, based on his review of the video, "[t]here was no evidence . . . of any type of contact that would cause any injury."
John Brick, Ph.D., accepted by the court as an expert in the area of alcohol studies with a specialty in pharmacology and biology of alcohol consumption, testified for the State. Both he and the chemist who tested defendant's blood sample taken two hours after the crash reported that the sample had a blood alcohol concentration (BAC) of .1l percent. According to Dr. Brick, based on defendant's age, height, and weight, a BAC of that level demonstrated defendant had an "absolute minimum" of five drinks. Based on the rate of metabolization, Dr. Brick estimated defendant's BAC was between .10 and .14 percent at the time of the crash. The State's expert concluded that based on discovery he reviewed, defendant was intoxicated at the time of the collision as he exhibited decreased inhibitions and increased risk taking, evidenced by his high speed and ignoring the police car, and impaired psychomotor coordination evidenced by his inability to maintain lane position.
During cross-examination, the medical examiner reported the results of toxicology screens performed as part of Flanagan's autopsy that revealed the presence of ethanol at different percentages, including his blood (.06l percent BAC) and his brain (.145 percent). The defense's expert in forensic toxicology, Dr. Richard Saferstein, opined that brain alcohol content was "equivalent" to breath and blood levels; therefore, Flanagan was "significantly intoxicated" at the time of his death. He concluded that Flanagan's "alcohol intoxication" was "the proximate cause" of the accident. On cross-examination, however, Dr. Saferstein conceded that his statement that blood and brain levels are equivalent was based solely on his "experience and knowledge" and was not backed by any studies.
Steven Schorr, accepted by the court as an expert in forensic engineering and in accident reconstruction, testified for the defense that Flanagan was the proximate cause of the accident because he was following the vehicle in front of him too closely and should have approached the intersection with more caution by slowing down. Schorr also stated that if Flanagan's BAC was slightly above .05 percent, his perception-reaction time would have been delayed; otherwise he could have reacted "a little bit sooner," arrived at the intersection "a little bit later," and avoided the accident.
The jury returned a unanimous guilty verdict on all remaining counts of the indictment, except for resisting arrest which was downgraded to a disorderly person's offense. Defense counsel moved for a new trial, or alternatively, judgment notwithstanding the verdict. Judge Kreizman denied the motions.
Defendant first asserts as error the court's denial of his motion to sever count six, causing Flanagan's death while driving with a suspended license. He argues it was highly inflammatory and unduly prejudicial for the jury to be informed of his multiple driving license suspensions dating back to l996 and the summons issued on October 4, 2007 for driving while suspended, which would have been avoided by a sequential trial before the same jury. We discern no error and are satisfied Judge Kreizman performed the appropriate Cofield analysis and determined the evidence was admissible pursuant to N.J.R.E. 404(b) as motive for the eluding-related charges in counts one, two, and eight.
"The decision whether to sever an indictment rests in the sound discretion of the trial court." State v. Chenique-Puey, 145 N.J. 334, 341 (l996). "Central to the inquiry is 'whether, assuming the charges were tried separately, evidence of the offenses sought to be severed would be admissible under [N.J.R.E. 404(b)] in the trial of the remaining charges.'" Ibid.
(alteration in original) (quoting State v. Pitts, 116 N.J. 580, 601-02 (1989)).
In reviewing a decision to admit other crimes evidence, "[a]ppellate courts generally defer to trial court rulings on the admissibility of evidence of other crimes, unless those rulings constitute an abuse of discretion." State v. Erazo, 126 N.J. 112, 131 (1991). Pursuant to N.J.R.E. 404(b), "[e]xcept as otherwise provided by [N.J.R.E.] 608(b) evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith." However, such evidence may be admitted for other purposes, such as to show "motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake[.]" N.J.R.E. 404(b).
The underlying danger of admitting other crimes evidence is that the jury may convict the defendant simply because he is "a bad person in general." State v. Cofield, 127 N.J. 328, 336 (l992) (internal quotation marks omitted). Therefore, admissibility of evidence of other crimes is guided by a four-prong test:
1. The evidence of the other crime must be admissible as relevant to a material issue;
2. It must be similar in kind and reasonably close in time to the offense charged;
3. The evidence of the other crime must be clear and convincing; and
4. The probative value of the evidence must not be outweighed by its apparent prejudice. [State v. Koskovich, 168 N.J. 448, 483 (2001) (citing Cofield, supra, 127 N.J. at 338).]
However, "[w]hen motive . . . is sought to be shown through other-crime evidence, . . . similarity between the alleged other act and the one for which defendant is currently on trial is not a requirement for admissibility." State v. Collier, 316 N.J. Super. 181, 194 (App. Div. 1998), aff'd, 162 N.J. 27 (l999).
After engaging in a lengthy Cofield analysis, Judge Kreizman determined the evidence that defendant had been issued a motor vehicle violation for driving while suspended three days before the fatal collision with the motorcycle was relevant to the eluding offenses and "extremely probative of his motive to elude the police." He elaborated:
We have testimony from Officer Alaimo that it appeared that the defendant saw him behind and that the officer put on his lights and siren and he didn't stop. He eluded. And this gives a reason for that. The evidence will supply the jury with a reason as to why defendant fled the police.
The second Cofield factor, the similarity and temporal proximity, is irrelevant under Collier because the purpose of the evidence was to establish motive.
The third prong was satisfied by the State's introduction of competent evidence clearly and convincingly establishing defendant was driving with a suspended license on October 4, 2007, and was issued a citation for doing so on that date. Two municipal court administrators testified about defendant's guilty plea to three separate motor vehicle offenses in l996, resulting in three consecutive, ten-year driver's license suspensions continuing through 2026. Officer Santana's trial testimony further established that he stopped defendant three days before the collision, issued him a summons for driving with a suspended license, and impounded his vehicle, thus clearly establishing defendant's knowledge of his license suspension. Defendant's fear of the ramifications of a second violation of driving while suspended would be a motive not only for attempting to elude Patrolman Alaimo prior to the collision (count one) but also for fleeing the scene, and in the process, seriously injuring Oberley (count eight) and fatally injuring Flanagan (count two).
In considering the fourth factor, weighing the probative value against the prejudicial effect, Judge Kreizman properly found there was no undue prejudice to defendant in the jury being informed he was driving on a suspended license because "[i]t doesn't prove an element of the eluding crime charged in the indictment. It merely gives the jury a context in which to place the defendant's actions."
Defendant next argues the prejudice in failure to sever was compounded by Pondaco's testimony that the underlying reason for one suspension was a DWI, warranting a mistrial. He alternatively argues that Judge Kreizman's denial of the mistrial motion and his untimely and inadequate limiting instruction mandates reversal of his conviction. We are not persuaded by either argument.
"[I]t is axiomatic that '[n]ot every admission of inadmissible hearsay or other evidence can be considered to be reversible error . . . ; instances occur in almost every trial where inadmissible evidence creeps in, usually inadvertently.'" State v. Winter, 96 N.J. 640, 646 (1984) (quoting Bruton v. United States, 391 U.S. 123, 135, 88 S. Ct. 1620, 1627, 20 L. Ed. 2d 476, 484 (1968)). The decision whether inadmissible evidence is curable by a limiting instruction or requires a mistrial is within the competence of the trial judge, "who has the feel of the case and is best equipped to gauge the effect of a prejudicial comment on the jury in the overall setting." Winter, supra, 96 N.J. at 646-47. The judge's determination "must be upheld on appeal unless there is a 'clear showing that the court abused its discretion or that the defendant suffered actual harm.'" State v. L.P., 352 N.J. Super. 369, 379 (App. Div.) (quoting State v. Labrutto, 114 N.J. 187, 207 (1989)), certif. denied, 174 N.J. 546 (2002).
Where the error is inadvertent, a curative instruction is timely given after the offending testimony, the evidence of the defendant's guilt is strong, and the error is not of a constitutional dimension, the offending testimony will not be grounds for a mistrial unless it is "clearly capable of producing an unjust result." State v. La Porte, 62 N.J. 312, 318-19 (1973). Similar to the present case, in La Porte, during the examination of a police officer, the officer disclosed, in response to a question about how the officer became aware of the defendant, that the defendant was wanted for a hold-up and robbery. Id. at 317. The defendant's motion for a mistrial was denied and the jury was instructed to disregard the statement completely as it had nothing to do with the case. Id. at 318. The Supreme Court found the disclosure was improper, however, it did not warrant a mistrial in view of the "overall picture" of the trial. Ibid.
Here, too, the testimony was improper and dealt with a prior crime. There is no doubt from the transcript the prosecutor was as surprised as defense counsel by the municipal court administrator's response to his innocuous question -- in fact, at sidebar he told the court he had prepped the witnesses and asked if he could continue his direct with leading questions. However, Pondaco's reference to DWI was fleeting and isolated, and his comment was ignored by the prosecutor in his follow up questions. Moreover, given the curative instruction and the "overall picture" of the case, presented through police, eyewitness and expert testimony, defendant's BAC results, the forensic evidence from defendant's SUV, and most compelling, the videotape, we are not convinced defendant was so prejudiced by this comment that it had the potential to cause the jury to reach a result it would not otherwise have reached. Defendant's attack on the timeliness and adequacy of the curative instruction is likewise without merit. Curative instructions should be "accomplished without delay." State v. Vallejo, 198 N.J. 122, 134 (2009). The adequacy of the "curative instruction necessarily focuses on the capacity of the offending evidence to lead to a verdict that could not otherwise be justly reached." Winter, supra, 96 N.J. at 647. We "must assume that jurors can and do obey the court's restrictive admonition" to disregard certain statements and evidence. State v. Obstein, 52 N.J. 516, 527 n.1 (1968).
Here, the curative instruction was delivered "without delay" at the completion of Pondaco's testimony. Following the sidebar in which the court denied defense counsel's request for a mistrial, the direct examination was completed with two dozen leading questions and there was minimal cross-examination. We note that defendant interposed no objection to the content of the curative instruction and thus our review is one of plain error, i.e., error clearly capable of producing an unjust result. R. 2:10-2; Vallejo, supra, 198 N.J. at 140. Nonetheless, we are satisfied Judge Kreizman's instruction was not error, let alone plain error, as it was "firm, clear" and "alleviate[d] potential prejudice to  defendant[.]" Vallejo, supra, 198 N.J. at 134, 135.
In Point III, defendant also challenges, as plain error, Judge Kreizman's response to the jury's question asking for the definitions of "probability" and "possibility" and his instruction that a BAC of .08 percent or greater constitutes DWI under N.J.S.A. 39:4-50. Again, we find no error in either instance, let alone plain error.
The court properly used the model jury instruction for aggravated manslaughter, N.J.S.A. 2C:11-4a, the relevant portion being "[i]f, in light of all the evidence you find defendant's conduct resulted in a probability as opposed to a mere possibility of death, then you may find that he acted under circumstances manifesting extreme indifference to the value of human life." (emphasis added). During deliberations, the jury asked Judge Kreizman to define "possibility" and "probability." He responded that "possibility" is "an uncertain thing which may happen" and "probability" is "more likely of something happening." After noticing the jury still looked "puzzled," he repeated the definitions, and the jury did not ask anything further.
In evaluating plain error in the jury instruction, "[t]he alleged error is viewed in the totality of the entire charge, not in isolation." State v. Chapland, 187 N.J. 275, 289 (2006).
It is firmly established that "'[w]hen a jury requests a clarification,' the trial court 'is obligated to clear the confusion.'" State v. Savage, 172 N.J. 374, 394 (2002) (quoting State v. Conway, 193 N.J. Super. 133, 157 (App. Div.), certif. denied, 97 N.J. 650 (1984)). "[T]he trial judge is obliged to answer jury questions posed during the course of deliberations clearly and accurately[.]" Pressler & Verniero, Current N.J. Court Rules, comment 7 on R. 1:8-7 (2011). "An appropriate judicial response requires the judge to read the question with care to determine precisely what help is needed. Sometimes a question is direct and simple to answer." State v. Parsons, 270 N.J. Super. 213, 221 (App. Div. 1994).
Where the jury requests clarification as to language, the court should attempt "to translate what had been a formal and somewhat legalistic charge into language [that] would be understood by the jury." Conway, supra, 193 N.J. Super. at 157.
Defendant cites no law, nor do we find any, that Judge Kreizman's response to the jury's inquiry was inadequate as a matter of law. Instead, defendant baldly asserts that the court was required to define probability as "an extremely high likelihood of death." We note that parties to an appeal are obligated to support their arguments by citation to legal authority. R. 2:6-9. See also State v. Hild, 148 N.J. Super. 294, 296 (App. Div. 1977). We are satisfied Judge Kreizman's clarification of the terms was consistent with their recognized definitions and did not prejudice defendant's rights.*fn4
We also reject as without merit defendant's newly raised claim that the court's instruction on aggravated manslaughter, that .08 percent BAC was the legal threshold for DWI, "was wrong legally and unfairly hamstrung" Dr. Saferstein's argument that Flanagan was driving under the influence based on his brain alcohol content.
Appropriate and proper jury charges are necessary for a fair trial. Savage, supra, 172 N.J. at 387. When evaluating the propriety of a trial court's charge, the charge should be examined in its entirety to determine its overall effect. State v. Dixon, 346 N.J. Super. 126, 135 (App. Div. 2001), certif. denied, 172 N.J. 181 (2002); State v. Delibero, 149 N.J. 90, 106-07 (1997). Our review of the jury charge focuses on whether or not, taken as a whole, it is ambiguous or misleading as to the controlling law. State v. R.B., 183 N.J. 308, 324 (2005).
Defendant again cites no law supporting his contention that the court was incorrect to instruct on a per se DWI using blood alcohol content as opposed to brain alcohol content. The law is clear that venous blood is to be used to determine a blood alcohol content, which in turn determines whether a person, as a matter of law, has operated a motor vehicle while under the influence of intoxicating liquor. See N.J.S.A. 39:4-50 (defining operation of a motor vehicle "while under the influence of intoxicating liquor" as a BAC of .08 percent or over); see also State v. Chun, 194 N.J. 54, 74-77, cert. denied, 555 U.S. 825, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008); State v. Downie, 117 N.J. 450, 457-59, cert. denied, 489 U.S. 819, 111 S. Ct. 63, 112 L. Ed. 2d 38 (l990). It is also clear that if "there is evidence that the driver may have been impaired by the use of alcohol, but no evidence that he was driving while intoxicated under the statutory standard, the court should instruct the jury on the BAC required for a per se DWI." State v. Atwater, 400 N.J. Super. 319, 339 (App. Div. 2008).
The record amply supports Judge Kreizman's denial of defendant's motion for either a judgment of acquittal or for a new trial based on an against-the-weight-of-the-evidence challenge.
R. 3:18-1. The State's proofs met the State v. Reyes, 50 N.J. 454, 458-59 (1967) standard, as the evidence viewed in the entirety, with the benefit of all favorable inferences, was sufficient to support the jury's determination beyond a reasonable doubt that defendant was guilty of the crimes charged, particularly the charge of aggravated manslaughter. See State v. Sims, 65 N.J. 359, 373 (l974) (holding that an appellate court should defer to the views of the trial judge in certain areas when reviewing a motion for a new trial following a jury verdict).
Here, the jury heard the testimony of Patrolman Alaimo that defendant was driving well over the speed limit, refused to stop despite being pursued with lights and sirens, proceeded into the intersection after braking quickly at the intersection and, after the collision, turned, drove over Flanagan's body, and fled the scene. The jury also heard the testimony of various other eyewitnesses who saw defendant collide with the motorcycle and speed away. Furthermore, the jury heard expert testimony that defendant was aware he was driving with a suspended license and his BAC was .11 percent, well over the legal limit of .08 percent. Most importantly, the jury saw the video which corroborated the officer's testimony and clearly showed that defendant did not stop at the stop sign, but only momentarily hit his brakes as a self- preservation move to avoid colliding with the cars passing in front of him.
The evidence adduced at trial clearly permitted the inference that in driving under the influence, with a suspended license, proceeding through the stop sign, and then fleeing the scene and running over Flanagan, defendant acted with "extreme indifference to human life[.]" See N.J.S.A. 2C:11-4a(1); see also State v. Scher, 278 N.J. Super. 249, 272 (App. Div. 1994) (finding sufficient evidence to support an aggravated manslaughter charge where defendant drove recklessly on a highway at a high rate of speed while intoxicated), certif. denied, 140 N.J. 276 (1995); State v. Radziwil, 235 N.J. Super. 557, 570 (App. Div. 1989) (affirming the denial of a motion for judgment of acquittal where defendant was convicted of aggravated manslaughter when defendant struck another vehicle at a high rate of speed, fled the scene without trying to render aid, and such evidence permitted the jury to infer defendant was intoxicated), aff'd, 121 N.J. 527 (1990); State v. Bogus, 223 N.J. Super. 409, 419 (App. Div.) (finding "ample evidence that defendant acted recklessly and with extreme indifference to human life" when defendant drove intoxicated through a red light onto a main road), certif. denied, 111 N.J. 567 (1988).
Defendant next argues he is entitled to a new trial based on a variety of comments by the prosecutor during summation that he contends constituted prosecutorial misconduct. Although a prosecutor has considerable latitude in presenting his or her closing argument, he or she "may not exceed the parameters of 'permissibly forceful advocacy' established by decisional law." State v. Munoz, 340 N.J. Super. 204, 217 (App. Div.) (citing State v. Marshall, 123 N.J. 1, 161 (1991), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993)), certif. denied, 169 N.J. 610 (2001). Prosecutorial misconduct can be grounds for reversal where the prosecutor's behavior was so egregious that it deprived the defendant of a fair trial. Marshall, supra, 123 N.J. at 153.
In determining whether a prosecutor's misconduct was sufficiently egregious, an appellate court "must take into account the tenor of the trial and the degree of responsiveness of both counsel and the court to improprieties when they occurred." Ibid. See also State v. Scherzer, 301 N.J. Super. 363, 433 (App. Div.), certif. denied, 151 N.J. 466 (1997). Specifically, we must consider (1) whether defense counsel made timely and proper objection to the improper remarks; (2) whether the remarks were withdrawn promptly; and (3) whether the court ordered the remarks stricken from the record and instructed the jury to disregard them. Marshall, supra, 123 N.J. at 153.
Courts have found prosecutorial comments to be improper in instances where the State's remarks diverted the jury's attention from the facts of the case. State v. Ramseur, 106 N.J. 123, 322 (1987). To warrant reversal, however, courts will examine the prosecutor's statements within the context of the trial in its entirety. See, e.g., id. at 323; State v. Tirone, 64 N.J. 222, 229 (1974).
Prejudice resulting from any improper statement may be cured by the court's cautionary instruction. See R.B., supra, 183 N.J. at 329. In the absence of a curative charge, a prejudicial statement may be deemed harmless where the proof of defendant's guilt is overwhelming. See State v. Feal, 194 N.J. 293, 312-13 (2008). Furthermore, "[a] prosecutor is not forced to idly sit as a defense attorney attacks the credibility of the State's witnesses; a response is permitted." State v. Hawk, 327 N.J. Super. 276, 284 (App. Div. 2000). Rather, when reviewing the State's response, the court "'must not only weigh the impact of the prosecutor's remarks, but must also take into account defense counsel's opening salvo.'" Munoz, supra, 340 N.J. Super. at 216 (quoting United States v. Young, 470 U.S. 1, 12, 105 S. Ct. 1038, 1045, 84 L. Ed. 2d 1, 11 (1985)).
We note that the majority of the comments referenced on appeal, many of which defendant refers to as "egregious," were not objected to at trial. Generally, if no objection was made, the remarks will not be deemed prejudicial. Ramseur, supra, 106 N.J. at 323. The failure to object suggests that defense counsel did not believe the remarks were prejudicial at the time they were made and deprives the court of an opportunity to take curative action. State v. Bauman, 298 N.J. Super. 176, 207 (App. Div.), certif. denied, 150 N.J. 25 (1997).
Without citation to the record, defendant claims the prosecutor repeatedly denigrated defense counsel by referring to his arguments as "nonsense" and "ridiculous," mischaracterizing the defense arguments as opposed to "the real facts of this case," and commenting "the defense picks and chooses its facts." We note that Judge Kreizman instructed the prosecutor not to use the word "nonsense" after objection from the defense. Only once afterwards, the prosecutor used the word "nonsense" again. The prosecutor also used to the word "ridiculous" in addressing the defense's arguments that Flanagan was following the car in front of him too closely and thus caused the accident because had he been "one quarter of a second back" the accident would not have happened. None of these comments, when considered in context and in the totality of the summation, rise to the level of being so inflammatory as to deny defendant of a fair trial.
Defendant also now finds objectionable the prosecutor's statement to the jury, "don't be insulted by . . . this innuendo of [defendant] not touching a drop of alcohol until after the crash. There's no evidence that indicates to that respect." This comment was clearly in response to the defense's argument during summation that defendant might have begun drinking after the accident, and amounts to fair comment on the evidence, and a fair response to the defense's "opening salvo" under Munoz.
The third statement defendant now takes issue with is the prosecutor saying
My gosh, I couldn't believe that the distance that there was between that car, the last car in front of him and where that motorcycle is. Two car lengths according to Mr. Schorr. Mere quarter of a second. Look at it. I invite you. And I'm sure you will look at it.
Four car lengths, easy. Five was more likely. And it's just very convenient how Mr.
Schorr attempts to rely on the one test, according to the manual it talks about time. [Emphasis added.]
It is accepted that "a prosecutor's expression of personal belief is error only when the jury understands the belief to be based upon information outside the evidence[.]" State v. Roman, 382 N.J. Super. 44, 60 (App. Div. 2005). Here, the prosecutor's couching his statement with "I couldn't believe" would not suggest to the jury facts outside the evidence, and furthermore, the statement explicitly invited the jury to look at the evidence and determine if Schorr's opinion was credible. When viewed in its entire context and in light of the tenor of trial, it is apparent this comment was not prejudicial and did not deprive defendant of his right to a fair trial. See Marshall, supra, 123 N.J. at 153.
Defendant contends the prosecutor also improperly commented on defendant's right to remain silent when he said, "Did [defendant] go home and call the police and say 'I was involved in a bad motor vehicle accident?' Oh no, that's not what happened here." After the defense objected, the court promptly instructed "[t]he defendant has no obligation to say anything at any time."
Defendant claims the prosecutor made a second inappropriate reference to what he could have said, but did not, while defendant was speaking to his mother from police headquarters -- "Did [defendant] say to his mother, 'I was involved in a horrible accident? Somebody drove right into me?'" -- to which his objection was overruled.
In New Jersey, "evidence regarding pre-arrest silence is admissible if, when viewed objectively and neutrally in light of all circumstances, it generates an inference of consciousness of guilt that bears on the credibility of the defendant when measured against the defendant's apparent exculpatory testimony." State v. Brown, 118 N.J. 595, 615 (1990). No constitutional right is implicated in pre-arrest silence. Id. at 613. Therefore, pre-arrest silence may be admitted for impeachment purposes -- provided the absence of government compulsion -- and its admissibility is to be determined as whether the silence's probative worth bears on credibility in light of the surrounding circumstances. Ibid. However, evidence of pre-arrest silence is not admissible to show consciousness of guilt if the defendant "does not testify and therefore is not available to explain his silence." State v. Marshall, 260 N.J. Super. 591, 597 (App. Div. 1992).
The judge promptly instructed the jury after sustaining defendant's objection to the first comment and defense counsel voiced no objection to the adequacy of the curative instruction. Even if the second statement was an improper comment on post-arrest silence, we are not convinced this fleeting comment rose to the level of reversible error based on the totality of the summation and the testimony and evidence presented at trial that overwhelmingly established defendant's guilt.
Finally, defendant claims the prosecutor made a "battle cry for justice" in several statements that warrant reversal. The first statement at issue is:
This man shouldn't be driving. This man shouldn't be on the road. Had he obeyed the motor vehicle laws he wouldn't be here. Had he obeyed the courts that told him you can't drive for ten years, . . . [he had] three opportunities to get in his head, [defendant], you can't be driving.
Does he adhere to any of those? Hard to believe he wouldn't have stopped after the first one. But he probably figures what the heck. I've lost it for so long I might as well just take my chances and drive.
The prosecutor also said "[j]ustice is to tell [defendant] that he's guilty" and "Timothy Flanagan was run over by [defendant]. Physically run over. The only thing he has left is his name which was also run over."
"So long as a prosecutor bases [his or] her comments and inferences on facts in the record, 'what is said in discussing them, by way of comment, denunciation or appeal, will afford no ground for reversal.'" Roman, supra, 382 N.J. Super. at 60 (quoting State v. Smith, 167 N.J. 158, 178, (2001)). Furthermore, "a prosecutor's closing argument must be limited to the facts in evidence and inferences reasonably to be drawn therefrom." State v. Bey, 129 N.J. 557, 620 (1992).
As the State acknowledged at oral argument, the prosecutor's battle cry comments came close to the line, but we are not convinced in any of these instances that the prosecutor overstepped the bounds of propriety warranting reversal of defendant's conviction. The prosecutor's statements about defendant's having a revoked driver's license and driving anyway was grounded in the evidence and amounted to a fair comment. The Supreme Court has recognized that the "charged atmosphere created frequently" in a criminal trial "makes it arduous for the prosecuting attorney to stay within the orbit of strict propriety." State v. Bucanis, 26 N.J. 45, 56, cert. denied, 357 U.S. 910, 78 S. Ct. 1157, 2 L. Ed. 2d 1160 (1958).
Furthermore, Judge Kreizman cured any potential prejudice from the prosecutor's statement with the following lengthy and forceful instruction during the jury charge:
[Y]ou can't say [defendant] committed this offense before October 7, 2007, he must be a bad guy, therefore he must be guilty. That's not the purpose. You can't use it for that purpose . . . .
In this case the evidence concerning defendant's act of driving suspended on October 4th and his subsequent plea of guilty to that motor vehicle summons was introduced for the following limited purpose. This is the only reason you can use it, if you want to. . . . The defendant had knowledge that his driving privileges were in fact suspended on October 7, 2007, . . . [a]nd two, that he had a motive to elude Patrolman Alaimo . . . .
However, you must not use this evidence to decide if defendant has a tendency to commit crimes, that he is a bad person. . . . That is, you may not decide that just because defendant committed other wrongs he must be guilty of this crime.
Moreover, the comment about doing justice by finding defendant guilty clearly does not rise to the level of the "send a message" cases because in those cases an appeal to send a message to the community is typically seen. See, e.g., State v. Rose, 112 N.J. 454, 520-23 (1988) (finding prosecutor erred in urging the jury to impose the death penalty in order to "send a message" to the community and by stating that "the law" mandated the death penalty for the defendant); State v. Rodriguez, 365 N.J. Super. 38, 52 (App. Div. 2003) (finding reversible error where the prosecution told the jury to "[l]et the battle for justice be won" by refusing to find the defendant not guilty by reason of insanity), certif. denied, 180 N.J. 150 (2004); Hawk, supra, 327 N.J. Super. at 282 (finding error where the prosecution asked the jury to send a message to the community and the defendant); State v. Acker, 265 N.J. Super. 351, 356 (App. Div.) (finding error where the prosecutor told the jury it was their function "to protect young victims of alleged sexual offenses as a group"), certif. denied, 134 N.J. 485 (1993). Here, the prosecutor made fair comments on the evidence as the basis for finding defendant guilty.
Moreover, as in Ramseur, Judge Kreizman gave the standard detailed instruction that an attorney's statements are not evidence. Thus, under the totality of the circumstances, the challenged comments did not have the effect of depriving defendant of a fair trial.
In Point VI, defendant challenges limited aspects of the court's suppression ruling. He contends the evidence and all subsequent statements made by defendant should have been suppressed because Patrolman Otlowski acted outside his territorial jurisdiction by "taking it upon himself" to propose and execute his investigation and arrest of defendant in the Township. According to defendant, despite the longstanding mutual aid agreement between the Borough and Township, his actions are distinguishable from the conduct approved by our court in State v. Montalvo, 280 N.J. Super. 377, 385-87 (App. Div. l995), because the officer's assistance was not solicited by the Township, nor was his aid requested.
Defendant further contends Patrolman Otlowski unconstitutionally detained defendant without reasonable suspicion or probable cause. Defendant notes that immediately upon the officer's arrival on defendant's property, he summoned defendant, urging that no reasonable person would have felt free to disobey or leave the presence of police under such circumstances. See State v. Stovall, 170 N.J. 346, 355 (2002).
Defendant additionally challenges the legality of Judge Kreizman's ruling that removing the blanket from defendant's car did not constitute a search, as well as the factual basis for his alternate finding that damage to the vehicle was in plain view of Patrolman Otlowski when he arrived at defendant's house. Defendant thus urges that all evidence and statements obtained as a result of the warrantless removal of the blanket should have been suppressed.
In reviewing a motion to suppress, an appellate court "must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007) (internal quotation marks omitted); State v. Locurto, 157 N.J. 463, 474 (1999). We defer to the trial judge because he or she had the opportunity to hear and see the witnesses and establish a "feel" of the case. Elders, supra, 192 N.J. at 244. The trial court's findings should only be reversed when so clearly mistaken "'that the interests of justice demand intervention and correction.'" Ibid. (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).
We are not persuaded by defendant's arguments. Judge Kreizman provided cogent reasons for finding Patrolman Otlowski had jurisdiction to proceed to defendant's residence in the Township based on his observations, the configuration of the municipalities, the longstanding mutual aid agreement, and the protocol that he followed. We have nothing further to add on this point. R. 2:11-3(e)(1)(E).
Contrary to defendant's assertion, we have recognized that removing a blanket from a portion of a vehicle does not constitute a search under the Fourth Amendment. State v. Ball, 219 N.J. Super. 501, 508 (App. Div. 1987). In Ball, a police officer removed a blanket from the hood of a vehicle, revealing what the officer believed to be a stolen engine. Id. at 504-05. Relying on the general rule that there is no expectation of privacy in the exterior of a car, the court reasoned the general purpose of placing a covering over an engine would be to protect it from the elements, not shield it from view, therefore there was no violation of a protected privacy interest in removing the blanket. Id. at 508. We further held that, even if the removal of the blanket constituted a search, no warrant was required given the officer had probable cause to believe the engine was stolen, and the "ready mobility" of the vehicle would have enabled it to be moved. Id. at 509-10.
The facts here are similar to Ball in that defendant's SUV was visible to the general public, thus there was no expectation of privacy. As the use of a blanket to cover a car is typically not to shield it from public view, Judge Kreizman correctly found there was no search. Furthermore, even if there was a search within the purview of the Fourth Amendment, no warrant would be required under Ball because Patrolman Otlowski had probable cause to believe defendant was involved in the fatal collision based on the description of him and the vehicle and the proximity to the crash, as well as the mobility of the car coupled with the ease with which defendant could have washed off the evidence.
The court's alternative finding of a plain view exception to the warrant requirement is also sustainable. A search without a valid warrant is presumptively unreasonable, and is prohibited unless it falls within a recognized exception. State v. PenaFlores, 198 N.J. 6, 18 (2009). Such exceptions include plain view, consent, community caretaking, search incident to arrest, emergency, hot pursuit, deceptive guest and the automobile exception. See ibid. The Supreme Court has established a three-prong test to determine if the plain view exception applies.
First, the police officer must be lawfully in the viewing area. Second, the officer has to discover the evidence "inadvertently," meaning that he did not know in advance where evidence was located nor intend beforehand to seize it. Third, it has to be "immediately apparent" to the police that the items in plain view were evidence of a crime, contraband, or otherwise subject to seizure. [State v. Bruzzese, 94 N.J. 210, 236 (1983) (internal citations omitted) (citing Coolidge v. New Hampshire, 403 U.S. 443, 465-70, 91 S. Ct. 2022, 2037-40, 29 L. Ed. 2d 564, 582-85 (1971)), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984).]
Applying these factors to the instant case, Patrolman Otlowski was lawfully on defendant's driveway as there is no privacy interest in a publicly accessible driveway. See State v. Gibson, 318 N.J. Super. 1, 10 (App. Div. l999). He had no way of knowing he would observe blood and flesh on the SUV even though he went to the residence to investigate a fatal accident. Such discovery was inadvertent, and there was probable cause to associate the damaged vehicle and the human tissue with criminal activity because the fatal collision occurred close to the residence, and the car and defendant matched the descriptions.
Patrolman Otlowski also had ample basis to question and detain defendant. "A police officer may conduct an investigatory stop if, based on the totality of the circumstances, the officer had a reasonable and particularized suspicion to believe that an individual has just engaged in, or was about to engage in, criminal activity." Stovall, supra, 170 N.J. at 356 (citing Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968)). It is apparent Patrolman Otlowski had a reasonable and particularized suspicion that defendant was involved in the fatal crash based on the description of defendant, his vehicle, and the location of the accident.
Defendant's penultimate challenge to the conviction is that reversal is required in light of the "voluminous" and "striking" error in this case. As none of defendant's previous assertions have any substantive merit, this argument also must fail.
Lastly, defendant challenges his sentence as excessive, claiming a forty-four year sentence with no parole for twenty-eight years shocks the "judicial conscience or anyone else's conscience." He also generally asserts that the statutes requiring mandatory consecutive sentences for the same offenses create a cruel and unusual punishment.
When reviewing a claim of excessive sentence, the role of the Appellate Division is sharply circumscribed. State v. Bieniek, 200 N.J. 601, 607-08 (2010). The trial judge is afforded considerable discretion in the imposition of the sentence. Ibid. Provided the trial judge's findings of statutory aggravating and mitigating factors "were based upon competent credible evidence in the record," and the judge imposed a sentence within the permissible range for the offense, we should not substitute our view of a proper sentence for the sentence imposed by the trial judge. Id. at 608 (quoting State v. Roth, 95 N.J. 334, 364 (1984)).
When reviewing a trial court's sentence, an appellate court must: (1) find that the trial court exercised discretion based on "findings of fact that are grounded in competent, reasonably credible evidence[,]" (2) find that the trial court applied "correct legal principles in exercising its discretion[,]" and (3) modify a sentence only when the facts and law show "such a clear error of judgment that it shocks the judicial conscience." Roth, supra, 95 N.J. at 363-64. So long as trial judges exercise their discretion in accordance with the principles set forth in Roth and in the Criminal Code, "they need fear no second-guessing." Bieniek, supra, 200 N.J. at 607-08 (quoting State v. Ghertler, 114 N.J. 383, 384-85 (1989)).
We are satisfied the trial judge's findings of four aggravating factors and no mitigating factors were supported by the record and the judge properly followed and applied the sentencing guidelines and criteria. Defendant's sentence does not constitute an abuse of discretion; it is neither manifestly excessive, nor unduly punitive; and does not shock our judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); Ghertler, supra, 114 N.J. at 387-88; Roth, supra, 95 N.J. at 362- 64. Accordingly, we discern no grounds to disturb the decision of Judge Kreizman who presided over twelve days of trial.