September 26, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MATTHEW W. FRITZ, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Sussex County, Indictment No. 08-02-00053.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 12, 2012
Before Judges Axelrad, Sapp-Peterson and Haas.
Tried before a jury on a one-count indictment, defendant was convicted of second-degree vehicular homicide, N.J.S.A. 2C:11-5. The trial judge had previously granted defendant's motion to acquit him of the motor vehicle charge of driving while intoxicated (DWI), N.J.S.A. 39:4-50. Following the jury's verdict, the judge found defendant guilty of disorderly persons possession of marijuana, N.J.S.A. 2C:35-10a(4), and disorderly persons possession of drug paraphernalia, N.J.S.A. 2C:36-2. With regard to the remaining motor vehicle offenses, the judge found defendant guilty of reckless driving, N.J.S.A. 39:4-96, and possession of a controlled dangerous substance (CDS) in a motor vehicle, N.J.S.A. 39:4-49.1, and not guilty of failure to wear a seatbelt, N.J.S.A. 39:3-76.2f.
The judge sentenced defendant to seven years in prison, subject to the provisions of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2, on the vehicular homicide conviction.*fn1 He was ordered to pay $5,000 in restitution, together with mandatory fines and penalties. The judge also sentenced defendant to 180 days incarceration on each of the two disorderly persons convictions, to run concurrent with each other and with his vehicular homicide conviction. The judge ordered defendant to pay a fine on the possession of CDS in a motor vehicle charge. Defendant's driver's license was suspended for an aggregate of four years.
On appeal, defendant challenges only his conviction for vehicular homicide and he raises the following contentions:
THE TRIAL COURT COMMITTED REVERSIBLE ERROR AND DEPRIVED DEFENDANT OF A FAIR TRIAL AND DUE PROCESS OF LAW BY DENYING DEFENSE COUNSEL'S MOTION TO SUPPRESS THE .04 BLOOD ALCHOHOL READING (BAC) AS EVIDENCE OF RECKLESSNESS UNDER N.J.S.A. 2C:5-11 BECAUSE THE BAC WAS INTRODUCED WITHOUT EXPERT TESTIMONY AS TO ITS SIGNIFICANCE THUS FORCING THE JURY TO IMPROPERLY SPECULATE ON ITS MEANING AND IMPROPERLY SHIFTING THE BURDEN OF PROOF ONTO THE DEFENDANT (Partially Raised Below).
POINT II: WHERE THE COURT HAD ACQUITTED DEFENDANT OF THE DWI BASED ON INSUFFICIENT EVIDENCE BEYOND A REASONABLE DOUBT THAT DEFENDANT WAS DRIVING UNDER THE INFLUENCE THE COURT COMMITTED REVERSIBLE ERROR AND DEPRIVED DEFENDANT OF A FAIR TRIAL BY:
A. INSTRUCTING THE JURY THAT IT COULD CONSIDER WHETHER DEFENDANT WAS UNDER THE INFLUENCE FOR PURPOSES OF DECIDING WHETHER DEFENDANT WAS RECKLESS IN THE DEATH BY AUTO TRIAL;
B. NOT INSTRUCTING THE JURY THAT DEFENDANT HAD BEEN ACQUITTED ON THE DWI SUMMONS AND ALLOWING THE STATE TO RAISE INTOXICATION ON SUMMATION; AND
C. ALLOWING THE JURY TO SPECULATE ON THE MEANING OF THE .04 BAC AND MARIJUANA.
THE COURT COMMITTED REVERSIBLE ERROR AND DEPRIVED DEFENDANT OF A FAIR TRIAL BY FAILING TO CHARGE THE JURY WITH VARIOUS STANDARDS OF CULPABILITY, INCLUDING NEGLIGENCE AND BY FAILING TO CHARGE THAT THE COURT COULD DECIDE LESSER INCLUDED CAR[E]LESS DRIVING (Partially Raised Below). POINT IV: THE COURT ERRED IN DENYING DEFENDANT'S MOTION FOR:
A. A DIRECTED VERDICT;
B. A NEW TRIAL OR IN THE ALTERNATIVE A JUDGMENT THAT THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE; AND
POINT V: THE COURT COMMITTED REVERSIBLE ERROR BY ALLOWING THE STATE'S ACCIDENT RECONSTRUCTION WITNESS TO STATE THAT THE .04 ALCHOHOL CONSUMPTION HAD A NEGATIVE EFFECT ON DEFENDANT'S ABILITY TO OPERATE HIS MOTOR VEHICLE AS HE HAD NOT BEEN QUALIFIED AS AN EXPERT IN THAT AREA AND THERE WAS NO FOUNDATION LAID FOR HIS ASSERTION.
POINT VI: THE CUMULATIVE EFFECT OF THE ERRORS RENDERED THE TRIAL UNFAIR.
POINT VII: IMPOSITION OF A SEVEN-YEAR NERA SENTENCE ON A YOUTHFUL, NON-VIOLENT FIRST-TIME OFFENDER WAS EXCESSIVE WHERE THE JUDGE IMPROPERLY RELIED UPON AGGRAVATING FACTORS NOT SUPPORTED BY THE RECORD AND IGNORED MITIGATING FACTORS CLEARLY PRESENT ON THE RECORD, THE MITIGATING FACTORS OUTWEIGHED THE AGGRAVATING FACTORS, AND THE COURT MISINTERPRETED DEFENDANT'S STATEMENTS AND DEMEANOR.
After reviewing the record in light of the contentions advanced on appeal, we reverse defendant's vehicular homicide conviction and remand for further proceedings.
The State developed the following proofs at trial. On the evening of February 23, 2007, defendant met a friend, James Moraski, and drove him to a bar in New York. At the bar, the two men played pool and drank. Defendant told police he had three shots of liquor and one mixed drink over the course of three hours.
The men left the bar after midnight and returned to New Jersey, again in defendant's car. Defendant told police he was driving around fifty-five to sixty miles per hour. As he approached a bend in the road, defendant claimed he tapped his brakes and lost control of the car on "black ice." The car struck a rock embankment. Moraski was ejected from the car by the impact. He was pronounced dead at a nearby hospital at 4:06 a.m. The parties stipulated that Moraski's death was caused by the motor vehicle crash.
Defendant survived the crash and the police briefly interviewed him at the scene. The police made no observations, like slurred speech or the smell of alcohol, that would indicate defendant was intoxicated. The police did not see any ice on the roadway, although there was snow on the side of the road.
Defendant was airlifted to a hospital, where a blood sample was taken. A subsequent test revealed his blood alcohol content (BAC) was 0.04%. The police found three small bags of marijuana and two pipes in the vehicle. Traces of marijuana were found on one of the pipes. Defendant's blood sample was negative for marijuana and other drugs. In a subsequent interview with police, however, defendant admitted he had smoked marijuana the day before the crash.
Emily Brisbane, a friend of both men, testified that defendant had called her on his cell phone between 2:45 and 3:00 a.m., while the men were driving home. Defendant was talking when, suddenly, Brisbane heard a crashing sound, along with screaming and yelling. Brisbane shouted defendant's name and he answered "I'm here" in a faint voice. The phone then went dead. In his statement to police, defendant denied speaking with Brisbane on his cell phone. No phone records were submitted in evidence at trial.
Sergeant Robert Babitz, a crash reconstructionist with the State Police, testified that, based upon his observations at the scene that night and scientific tests he had performed, defendant was driving at approximately 107 miles per hour at the time of the crash. A defense expert, Lloyd Patton, criticized Babitz's findings. Patton opined that, based upon his testing, defendant had been driving between 57 and 68 miles per hour prior to the crash.
Defendant contends five errors occurred during trial which separately or cumulatively require reversal of his vehicular homicide conviction. Because they are determinative of the present appeal, however, we focus our attention on the two arguments he raises concerning the trial judge's instructions to the jury on the elements of vehicular homicide. First, defendant argues that, because the judge had found him not guilty of driving while intoxicated, the judge erred by instructing the jury it could nevertheless consider whether defendant had committed that motor vehicle offense in deciding whether he had driven recklessly. Second, defendant contends the judge's explanation of the term "recklessly" was not in accord with governing case law and was confusing to the jury.
It is undisputed that "[a]ppropriate and proper jury charges are essential for a fair trial." State v. Green, 86 N.J. 281, 287 (1981). The trial judge must guarantee jurors receive accurate instructions on the law as it pertains to the facts and issues of each case. State v. Thompson, 59 N.J. 396, 411-12 (1971). The charge must be read as a whole to determine whether there was any error. State v. Adams, 194 N.J. 186, 207 (2008)(citing State v. Jordan, 147 N.J. 409, 422 (1997)). Because of the importance of accurate jury instructions, however, "erroneous instructions on material issues are presumed to be reversible error." State v. Marshall, 173 N.J. 343, 359 (2002).
Defendant was charged with DWI and vehicular homicide. Because DWI is a motor vehicle offense, it would normally be prosecuted in the municipal court. State v. DeLuca, 108 N.J. 98, 110 (1987). Vehicular homicide, on the other hand, is an indictable offense which must be tried in the Superior Court. Id. at 110-11. Significant double jeopardy issues would be raised if the motor vehicle and indictable offenses were tried by separate courts at separate times. For example, an acquittal by a municipal court on a reckless driving charge would bar a subsequent prosecution in Superior Court on a vehicular homicide charge because "driving recklessly" is also an element of the indictable offense. State v. Muniz, 118 N.J. 319, 328 (1990). This result would occur even though the municipal court determining the motor vehicle offense lacks jurisdiction over the indictable offense. Ibid.
To avoid these double jeopardy issues, the Supreme Court has adopted a procedure that requires that a vehicular homicide and any motor vehicle charges be joined in a single trial, with the jury first deciding guilt on the vehicular homicide charge and the judge, exercising the jurisdiction of the municipal court, thereafter deciding the motor vehicle charges. Id. at 332-33. At the conclusion of the trial, the judge must instruct the jury there are motor vehicle offenses "the determination of which will be the sole responsibility of the court." Id. at 332.
The Model Jury Charge for "Vehicular Homicide: Death by Auto or Vessel with Drunk Driving or Refusal" (2004) implements the Supreme Court's directive in Muniz by requiring that the trial judge instruct the jury as follows:
The State alleges that the defendant's conduct involved [a] violation[s] of the motor vehicle laws of this State. Specifically, it is alleged that the defendant [list motor vehicle violations alleged and their elements]. It may be necessary for you to determine whether defendant operated a motor vehicle while in violation of New Jersey's drunk driving law [and/or that defendant thereafter refused to submit to a breathalyzer examination as required by New Jersey law], as I will explain shortly. [Charge where appropriate]: However, with that one possible exception, whether defendant is guilty or not of a motor vehicle offense will be determined by an appropriate court. In other words, it is not your job to decide whether (he/she) is guilty or not guilty of any motor vehicle offense other than drunk driving (and/or refusal).
The Model Charge, however, permits the jury to consider the evidence presented at trial concerning the DWI charge and, if it believes defendant did violate the DWI law, to infer he had driven his car recklessly. The Model Charge states:
In any event, you may consider the evidence that (he/she) committed [a] motor vehicle offense[s] in deciding whether (he/she) was reckless, and you may draw an inference that defendant was driving recklessly if you are satisfied that he/she was driving while intoxicated in violation of New Jersey's drunk driving law. However, you are never required or compelled to draw this inference. It is your exclusive province to determine whether the facts and circumstances shown by the evidence support any inference and you are always free to accept or reject the inference as you deem appropriate.
In the present case, the procedure established in Muniz was not followed. At the conclusion of the trial, a jury charge conference was held. At that conference, defense counsel made a motion, pursuant to Rule 3:18-1, to acquit defendant of the DWI charge. The State objected, arguing, under Muniz, the judge's decision on the DWI charge should await the jury's verdict on vehicular homicide. The judge denied defendant's request and proceeded to advise the parties that the standard model charge on vehicular homicide would be given, together with the language permitting the jury to draw an inference that defendant had been driving recklessly if it were satisfied he had violated the DWI statute.
Immediately prior to summations, however, the issue was revisited, with defendant again arguing he should be found not guilty of DWI. The State again objected to the court considering the DWI charge until after the jury had reached a verdict on vehicular homicide. However, the judge proceeded to consider defendant's motion. The judge found that defendant's
0.04% BAC was below the statutory limit for the offense. The judge also found that there was no "independent evidence," such as defendant slurring his speech, smelling of alcohol or being unresponsive to police inquiries at the scene, that would prove beyond a reasonable doubt that he was intoxicated. Thus, the judge found defendant not guilty of DWI because the evidence was insufficient to warrant a conviction. R. 3:18-1.
By finding defendant not guilty of DWI, the judge had found, as a matter of fact and as a matter of law, that defendant had not committed this offense. Therefore, the jury could no longer be instructed, as set forth in the Model Jury Charge, that it could consider the evidence that he committed this offense in determining whether he was reckless. Because defendant had been acquitted of DWI, the jury could also no longer be permitted to draw an inference that he was driving recklessly if it was satisfied that he was driving while intoxicated "in violation of New Jersey's drunk driving law."
Nevertheless, and over defendant's objection, the judge refused to alter the proposed jury charge from what had been proposed prior to defendant's acquittal of DWI. Instead, the judge instructed the jury as follows:
The State alleges in this case that the defendant's conduct involved a violation of the motor vehicle law prohibiting operation of a motor vehicle while under the influence of a narcotic or habit producing drug or alcoholic beverages, or with a blood alcohol reading in excess of .08 percent. It is not your determination as to whether the defendant is guilty or not guilty of that particular motor vehicle offense. However, you do have the right to consider evidence that he committed a motor vehicle offense in determining whether he was reckless. If you are satisfied that he was driving a vehicle while intoxicated, you may draw an inference with regard to those facts. However, you are never required or compelled to draw an inference. It is your exclusive province to determine whether the facts and circumstances shown by the evidence support any inference, and you are always free to [ac]cept or reject the inference as you deem appropriate.
To find a defendant violated the drunk driving law, the State has the burden to prove beyond a reasonable doubt that the defendant operated a motor vehicle while under the influence of intoxicating liquor, narcotic, hallucinogenic, or habit producing drug, or operated a motor vehicle with a blood alcohol concentration of 0.08 percent or more by weight of alcohol in his blood.
And just so you understand, the phrase under the influence means a substantial impairment of one's mental and/or physical capabilities.
Under the circumstances of this case, this instruction was erroneous. It is well established that model jury charges must be molded by a trial judge to explain the law to the jury in the context of the material facts of the case. State v. Concepcion, 111 N.J. 373, 379 (1988). "An instruction that is appropriate in one case may not be sufficient for another case." Ibid. Although defendant's acquittal of DWI significantly changed the factual and legal landscape of this case, the judge simply provided the jury with the Model Jury Charge, without changing it to take defendant's acquittal into account. Thus, the jury was erroneously instructed, contrary to what the judge had ruled by finding defendant not guilty of DWI, that it could still consider whether he had committed this offense and, if it were satisfied he had, to draw an inference that he had driven recklessly.
Contrary to the State's argument, this error was not harmless in the context of the case. An improper instruction is harmless if it does "not demonstrably impair the ability of the jury to deliberate impartially upon its verdict" or if it "does not deflect the jury from a full consideration of the competent evidence of record and from reaching a verdict of guilt which is supported overwhelmingly by properly admitted evidence." State v. Simon, 79 N.J. 191, 207 (1979)(citations omitted). That standard was not met here.
While the State had presented other evidence to demonstrate that defendant had driven recklessly on the night of the crash, such as Brisbane's testimony that defendant had been talking to her on his cell phone and the expert testimony it presented that defendant was driving over 100 miles per hour, that evidence was disputed. In his statement to the police, defendant had denied using his cell phone that evening and the defense presented its own expert in an attempt to show that he was driving at a much lower speed at the time of the crash.
On the other hand, testimony concerning defendant's alleged intoxication permeated the trial. Although the judge had dismissed the DWI charge, the State was still permitted to argue intoxication to the jury in its summation. The jury was still permitted, due to the erroneous instruction, to find defendant had violated the DWI law and to use that finding to draw the inference that he had driven recklessly. The erroneous instructions on DWI clearly related to a material issue in the case and, therefore, they constituted "reversible error." Marshall, supra, 173 N.J. at 359.
While a reversal of defendant's vehicular homicide conviction is required due to the improper charge on DWI, we nevertheless consider defendant's argument that the trial judge also erred in instructing the jury on the concept of "recklessness" by declining to compare that mental state with "negligence." We agree this instruction was erroneous.
In order to prove a defendant guilty of vehicular homicide, the State must establish beyond a reasonable doubt (1) that defendant was driving a vehicle; (2) that defendant caused the victim's death; and (3) that defendant caused this death by driving the vehicle recklessly. N.J.S.A. 2C:11-5a. Here, the trial judge instructed the jury on these elements and specifically defined the term "recklessness" in accordance with the Model Jury Charge.
When a jury thereafter asks a question in which it indicates that some members may not sufficiently understand the concept of "recklessness," the Supreme Court has held that the model charge definition of this term should not simply be repeated. Instead, the judge should explain the requirement that the State prove that the defendant acted "recklessly" by comparing this term with other mental states, such as "purposely," "knowingly," and "negligently." State v. Concepcion, supra, 111 N.J. at 381.
In State v. Atwater, 400 N.J. Super. 319 (App. Div. 2008), we held the trial court erred by failing to distinguish between recklessness and negligence in a vehicular homicide case. In Atwater, the defendant was speeding when he struck two pedestrians. His BAC of 0.07% was below the legal limit. Id. at 323-26. During its deliberations, the jury asked three times for clarification of the term "recklessness." The court, however, denied defendant's request that this term be compared with negligence in order to respond to the jury's apparent confusion. Instead, the court merely repeated the model charge, which only defined the term "recklessness." Id. at 329-31. Finding that the court's failure to provide the jury with a comparison of the applicable mental states was error based upon the Supreme Court's holding in Concepcion, we reversed and remanded for a new trial. Id. at 332.
Soon after it began its deliberations in this case, the jury submitted a note in which it asked, "Can we have the definition of the charge in writing." After conferring with counsel, the judge decided to deny that request and to simply re-read the charge on vehicular homicide to the jury. However, defense counsel then asked if the jury could be reinstructed as to the meaning of the term "recklessness" by comparing it to the mental state required to prove "negligence." The State objected, arguing that any reinstruction should await the jury asking a specific question concerning the recklessness standard. If the court were inclined to address the issue, however, the State argued that the mental state of recklessness should be compared with the mental state necessary to prove the motor vehicle offense of careless driving, rather than with negligence.
At that point, we believe the judge had two options. First, the judge could have given a written copy of the instructions to the jury as it had requested. See State v. O'Brien, 200 N.J. 520, 540-41 (2009)(holding a trial judge has the discretion to provide written instructions to the jury and that a judge "should make an individualized decision regarding the submission of written instructions to the jury on the basis of what is before [him or her] and not on any preconceived policy rationale"). Alternatively, because the jury had not yet expressed any confusion about any specific aspect of the charge, the judge could have re-read it to them as had been originally proposed.
Here, however, the judge determined to revise the charge on vehicular homicide to incorporate a comparison of the term "recklessly" with "a lesser standard of careless operation." Defendant objected to the revised charge and again argued the proper comparison was with negligence, not with the mental state required to prove a lesser motor vehicle charge. The judge rejected this argument. In recharging the jury, he repeated the elements of the vehicular homicide charge, including the requirement that the State prove that defendant had driven recklessly. He repeated the Model Jury Charge definition of the term "recklessness." In an attempt to further explain this term, the judge then instructed the jury as follows:
[W]ith regard to this concept of reckless conduct, under our motor vehicle statutes, there is a specific statute prohibiting reckless driving. That statute states, "A person is reckless who drives a vehicle heedlessly, in willful or wanton disregard of the rights or safety of others in a manner so as to endanger or be likely to endanger a person or property."
Also, under our motor vehicle law is a lesser standard, not reckless, but careless. And that particular statute provides that a person is guilty of careless driving when operating a vehicle carelessly or without due caution and circumstances in a manner so as to endanger or be likely to endanger a person or property. So that those particular motor vehicle offenses give context to the State's obligation to prove beyond a reasonable doubt reckless conduct in order for that particular element of the crime to be satisfied.
The jury soon asked to have the three elements of the offense repeated. Again, defendant asked that the charge include a comparison between the mental states of recklessness and negligence. The judge rejected this request and provided the jury with a nearly identical instruction comparing the motor vehicle offenses of reckless and careless driving.
We find these instructions were inherently confusing and plainly capable of misleading the jury as to the mental state required to prove the indictable offense of vehicular homicide. The instructions did not, as directed by Concepcion, supra, use the mental states of negligently, knowingly and purposely to further explain the mental state of recklessness. All four of these terms are defined in our Criminal Code. N.J.S.A. 2C:2-2b(1) to -b(4). However, there is no Title 2C definition for "carelessly," since careless behavior does not constitute a crime under our Criminal Code. See N.J.S.A. 2C:2-2a (stating that a person cannot be guilty of an offense "unless he acted purposely, knowingly, recklessly or negligently, as the law may require, with respect to each element of the offense"). While careless conduct is often characterized as negligent conduct, this characterization is usually applied in the context of civil litigation. Under the definition of "negligence" in the Criminal Code, the Legislature has made clear that "'[n]egligently' or 'negligence,' when used in this code, shall refer to the standard set forth in this section and not to the standards applied in civil cases." N.J.S.A. 2C:2-2b(4). Thus, the judge erred by including a definition of the term "carelessly" in an instruction for an indictable conviction where that mental state has no relevance.
Moreover, this charge introduced the offense of "careless driving" for the first time. The jury was not instructed whether this was a charge that was also pending against defendant, whether it was a lesser-included offense of a pending charge, or, most significantly, whether it was a charge that the judge would consider pursuant to Muniz, supra.
The State's reliance upon our decision in State v. Piqueiras, 344 N.J. Super. 297 (App. Div. 2001), certif. denied, 171 N.J. 337 (2002), is misplaced because that case is readily distinguishable. In Piqueiras, we held that the trial judge did not err in denying defendant's request that the jury be instructed on the mental state of negligence in an aggravated assault case, where the defendant had caused severe and permanent injuries to a passenger when he crashed his car. Id. at 313-14. Unlike the present case, however, there was no evidence in Piqueiras that the jury was confused about the definition of recklessness. Instead, the focus of the jury's questions was on "the heightened element of circumstances manifesting extreme difference to human life," an element of aggravated assault. Id. at 316. Because there was no need to further explain the concept of recklessness to the jury, we held that the judge was not required to do so. Id. at 317.
In the present case, however, the judge decided, after hearing arguments from counsel, to provide a revised charge that included a further explanation of the term "recklessly." Thus, this case squarely falls under our decision in Atwater, supra. As in that case, once the judge decided to further explain the term "recklessly," that explanation should have been accompanied by a comparison to the other mental states included in, and defined under, Title 2C. This was not a harmless error because whether defendant acted recklessly was clearly a material element of the offense of vehicular homicide. Marshall, supra, 173 N.J. at 359. An accurate charge was therefore required. Because the instruction was erroneous, defendant's vehicular homicide conviction must be reversed.
Based upon our ruling on the arguments raised by defendant concerning the jury charge, there is no need to consider his remaining contentions concerning evidentiary and sentencing issues. We thus vacate defendant's vehicular homicide conviction and remand for further proceedings.
Reversed and remanded.