On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-10-3478.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 31, 2012 -
Before Judges Carchman, Fisher and Baxter.
Following a fifteen-day jury trial, defendant Natasha White*fn1 was convicted of the disorderly persons offense of criminal mischief, N.J.S.A. 2C:17-3a, amended down from the third degree; two counts of third-degree possession of a weapon to use unlawfully against a person or property, N.J.S.A. 2C:39-4d; first-degree murder, N.J.S.A. 2C:11-3a(1), (2); first-degree vehicular homicide by recklessly operating a motor vehicle in violation of N.J.S.A. 39:4-50 within 1,000 feet of a school, N.J.S.A. 2C:11-5a, b(3)(a); second-degree vehicular homicide by driving recklessly, N.J.S.A. 2C:11-5a; and third-degree vehicular homicide while operating a vehicle in violation of N.J.S.A. 39:3-40, N.J.S.A. 2C:40-22a; as well as simple assault, N.J.S.A. 2C:12-1a, as a lesser-included offense of second-degree aggravated assault, N.J.S.A. 2C:12-1b(1). The trial judge sentenced defendant to an aggregate sentence of forty-four-andone-half years in prison with a period of parole eligibility of thirty-four years.*fn2 We affirm the judgment of conviction.*fn3
These convictions arose out of two related incidents, and ultimately, the motor vehicle death of Zachary Sanders caused by defendant's intentional conduct. In the first incident, defendant purposefully rammed her vehicle into Sanders' vehicle and attempted to hit him with her vehicle before driving off. In the second incident, nine days later and at the same location, an intoxicated defendant again purposefully rammed her vehicle into Sanders, hitting him and another individual with her vehicle. Sanders was run over and dragged under the vehicle. He died as a result of his injuries.
We now provide a more expansive discussion of the background of these incidents, which facts were adduced at trial. Sanders lived in West Orange with his fiancee Latoisha Richardson and their two children. For approximately two years prior to his death, Sanders carried on an affair with defendant.
On March 31, 2007, Sanders was at the Rubicon Bar with a childhood friend, Desmond Jones, and defendant. While there, Sanders and defendant began to argue; the argument escalated into a shouting match, although Jones claimed that Sanders seemed nonchalant about the argument. According to Jones, at this point Richardson arrived, said hello to several people and went outside with Sanders. Defendant followed the couple outside, and Jones soon followed as well.
The bar owner, Willie Johnson, stated that Jones, Sanders and defendant were at the bar, and that Richardson was not present. Sanders and defendant were arguing, and Johnson told the two to stop arguing. Instead, the two went outside, and approximately ten minutes later, Johnson heard vehicles crashing together.
According to Richardson, when she arrived at the bar at approximately 2:00 a.m., she drove by and noticed Sanders arguing with a woman, whom she later recognized as defendant. Although Richardson was aware of Sanders' and defendant's affair, she was unaware that it was still going on. While Richardson and Sanders spoke in the parking lot, defendant got into her vehicle and used it to ram Sanders' vehicle "a good four times." Sanders was pushed into a pole in front of the vehicle. Next, defendant left the parking lot, but quickly returned and attempted to hit Sanders with her vehicle. The police were called, and defendant drove off.
Two officers from the Orange Police Department responded to the bar and interviewed Sanders, as well as other witnesses. Both officers noticed that Sanders' face was scratched as a result of his fight with defendant, but he refused medical attention. Approximately fifteen minutes after the police arrived, defendant returned to the bar. She had been on the phone with police headquarters and was persuaded to return to the scene. She revved her engine as she approached the bar, and stopped quickly enough for her vehicle to fishtail on the road. She exited the vehicle, leaving it in the middle of the road, and yelled while approaching the officers. She claimed that Sanders had hit her, although the officers did not see any marks on her. She was arrested for simple assault, criminal mischief, and possession of a weapon (her automobile) for an unlawful purpose.
On April 9, 2007, Sanders and Jones were again at the Rubicon Bar. Despite the March 31 incident, defendant was there as well, working as a bartender. Jones overheard defendant tell Sanders that she felt good about having tried to hit him with her vehicle. Jones then left the bar to get something to eat. He returned after Sanders was killed.
When Johnson, the owner, arrived at the bar earlier that evening, he noticed that defendant and Sanders were arguing again. He fired defendant and told her to leave the bar. He also suggested that Sanders stay in the bar and not follow defendant. Johnson was later told by Bernard Kelly, one of Sanders' friends, that defendant had run Sanders over with her vehicle.
Kelly was also at the Rubicon Bar on April 9, 2007. He came to the bar at Sanders' invitation, left for a short period of time, and then returned. He noticed that defendant and Sanders were arguing and surmised from what they were saying that Sanders was ending their affair. Kelly overheard defendant threaten Sanders by stating that she had people looking for him. Kelly interjected at this point and told defendant that such a statement was not necessary. In response, defendant told Kelly to mind his business or he would "get some, too." He claims that defendant then went to the kitchen, and at that point he told Sanders that it was time to leave. Kelly and Sanders left through the front door, and defendant left through a side door into the parking lot.
Kelly then went to his vehicle, which was parked next to defendant's vehicle, and spoke with her, telling her to calm down before driving anywhere. He noticed that defendant seemed calm. Sanders then walked towards the pair and shouted an obscenity towards her, at which point Kelly stated "all hell broke loose." Defendant got in her vehicle and backed out of the bar's parking lot. Sanders and Kelly were standing on the sidewalk next to Lincoln Avenue when defendant used her vehicle to ram Sanders' vehicle. Defendant's vehicle became stuck on the curb, and she spun her tires in the course of freeing it. Kelly told Sanders that they should go back inside the bar. Sanders was intoxicated.
Next, defendant drove to the back of the parking lot again and sat, revving her engine. At this point Sanders and Kelly started to head back towards the bar, and defendant drove towards them. She steered towards Sanders, and Kelly ran, jumped in the air, and heard a loud noise as defendant hit both Sanders and Kelly. Kelly was hit on the leg and flung into the air; he landed on the ground near the passenger side of defendant's vehicle. Sanders was struck and landed on the middle of the hood. He proceeded to bang on the windshield and yell for defendant to stop the vehicle.
With both hands on the steering wheel, defendant looked at Sanders, "stomped" on the gas, and drove over the sidewalk onto Lincoln Avenue. Sanders continued to yell for her to stop. His hands then flew off the vehicle and up in the air, and he fell under the vehicle while defendant continued driving to the next intersection. The vehicle was traveling too fast for Kelly to catch up to it. Kelly ran behind the vehicle, yelling for defendant to stop; when he reached the vehicle he turned it off and pulled defendant from the vehicle. They struggled, and Kelly hit defendant twice before he was stopped by the police. The responding officers on April 9, were the same as those responding on March 31.
Defendant was cited for driving on a suspended license and for driving while intoxicated. The officer placed defendant, whom he recognized from the March 31 incident, in the patrol vehicle. Under defendant's vehicle, Sanders was twitching and severely injured. The police were unable to lift the vehicle off Sanders until the fire department arrived. After the vehicle was lifted off of Sanders, he was declared dead by emergency medical services.
At trial, various experts opined as to the operability of defendant's vehicle, finding that defendant's vehicle, a Lexus, had front-end collision damage, while Sanders' vehicle, a blue Dodge Durango, had collision damage on the rear end passenger side. The Lexus was generally well-maintained and had properly functioning brakes.
Robert Havier, of the New Jersey State Toxicology Laboratory, was qualified as an expert in toxicology and concluded that Sanders had a blood-alcohol content of 0.271% while defendant's blood-alcohol content as 0.123%, which was over the statutory limit of 0.08%.*fn4
The Assistant Medical Examiner in Essex County at the time of the incident, Dr. Alex Zhang, performed an autopsy on Sanders' body and concluded that the physical evidence was consistent with Sanders being dragged on his back by a vehicle. Among other things, there were tire marks on Sanders' upper left arm and several broken ribs. The medical examiner concluded that Sanders had been run over and that the heavy weight of the vehicle compressed his chest. The cause of death therefore was mechanical asphyxia, and the manner of death was a "homicide." The court cautioned the jury to keep in mind that it was the final arbiter of guilt or innocence.
An Essex County Prosecutor's Office detective, Arnold Anderson, who specializes in investigating serious automobile accidents, responded to the scene. When he arrived, he observed the Lexus, which was approximately 140 feet from the Durango. Sanders' body was lying in the street, and his work-identification badge was found approximately forty-five feet away. The detective did not notice any skid marks, or other evidence of heavy braking that would indicate, if present, that defendant had tried to avoid hitting something. However, he noted that at a low rate of speed, there may not have been skid marks because of the vehicle's anti-lock brakes. Because of the odd position of Sanders' body, it appeared that Sanders had been run over while on the ground and then dragged under the vehicle.
On cross-examination, Anderson responded to counsel's inquiries and concluded that this incident was a homicide based upon the prior domestic violence incident between defendant and Sanders, which involved defendant attempting to run Sanders over in her vehicle; the fact that this was not a random act, but was targeted at Sanders; and the lack of attempts to avoid Sanders, despite the lack of traffic in the road, and the ability to do so. Had Sanders been holding on to the hood of defendant's Lexus and the brakes been applied, Sanders would have been propelled off the hood and onto the street in front of the vehicle. For Sanders to end up under the vehicle, defendant would have had to accelerate and drive over Sanders' body after it fell to the street.
Defendant claimed that she was negligent, wherein Sanders was intoxicated, jumped onto defendant's hood, and eventually fell off, causing him to be run over. The defense countered the State's case with Salvatore Fariello, an expert in pedestrian accident reconstruction, as its sole witness.
Fariello agreed with the number, type and general cause of Sanders' injuries and opined that Sanders was crushed when defendant applied the brakes in her vehicle which caused "front end dive." The body was then dragged only a short distance while the vehicle came to a stop. He pointed out that the anti-lock braking system on defendant's Lexus prevented it from leaving skid marks. Fariello suggested that Sanders rode on the hood for approximately one hundred feet while traveling less than twenty miles per hour. After he fell off the front of the vehicle, defendant was unable to avoid him, and that the death was the result of an unavoidable accident.
The jury convicted defendant, and this appeal followed. On appeal, defendant raises the following arguments:
THE DEFENDANT WAS DENIED A FAIR TRIAL WHEN TWO STATE WITNESSES PROFFERED AN OPINION THAT ASSUMED THE ULTIMATE FACT THAT THE DEFENDANT WAS GUILTY OF HOMICIDE. (PARTIALLY RAISED BELOW).
A. DR. ALEX ZHANG'S TESTIMONY.
B. DETECTIVE ARNOLD ANDERSON'S ...