NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 3, 2012
On appeal from Superior Court of New Jersey, Law Division, Morris County, Indictment No. 06-10-1399.
Joseph E. Krakora, Public Defender, attorney for appellant (Karen E. Truncale, Assistant Deputy Public Defender, of counsel and on the brief).
Robert A. Bianchi, Morris County Prosecutor, attorney for respondent (Matheu D. Nunn, Assistant Prosecutor, on the brief).
Before Judges Grall, Koblitz and Accurso.
Defendant Eugene Baum was driving while intoxicated, when his car struck and killed two teenage girls who were walking on the road's shoulder. Both died as a consequence of multiple blunt force injuries and resulting internal damage.
A jury found defendant guilty of two counts of aggravated manslaughter, N.J.S.A. 2C:11-4a, a crime of the first degree punishable with a term of imprisonment between ten and thirty years, N.J.S.A. 2C:11-4c, and two counts of second-degree death by auto, N.J.S.A. 2C:11-5b. The judge found defendant guilty of driving while under the influence, N.J.S.A. 39:4-50, and he merged defendant's convictions for death by auto and driving while under the influence with his convictions for aggravated manslaughter. Defendant was sentenced to two consecutive twenty-year terms, both subject to terms of parole ineligibility and supervision mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and the mandatory fines, assessments, costs, surcharges, license suspension and requisite attendance at the intoxicated driver's resource center were imposed.
On appeal defendant argues:
I. THE COURT FAILED TO ISSUE AN UNDERSTANDABLE LIMITING INSTRUCTION ON THE USE OF DEFENDANT'S VIDEOTAPED STATEMENT, WHICH WAS NOT OFFERED AS SUBSTANTIVE EVIDENCE. (Not Raised Below).
II. THE COURT CHANGED THE WORDING IN THE MODEL CHARGE ON MENTAL DISEASE OR DEFECT IN SUCH A MANNER THAT THE DEFENSE OF DIMINISHED CAPACITY WAS NEGATED.
III. THE TRIAL COURT ERRED IN PRECLUDING THE DEFENSE OF PATHOLOGICAL INTOXICATION IN A PRETRIAL RULING THAT DID NOT TAKE INTO ACCOUNT THE OPINION OF DR. SEMEL, THE DEFENSE PSYCHIATRIST WHO TESTIFIED AT TRIAL. (Partially Raised Below).
A. It Was Incorrect To Hold A Pretrial Hearing.
B. The Pretrial Ruling Was Wrong On The Evidence Presented.
C. The Court Should Have Reconsidered Its Decision After Dr. Semel's Trial Testimony.
IV. THE DEFENDANT WAS TOO INTOXICATED TO VALIDLY WAIVE HIS MIRANDA RIGHTS AND HIS VIDEOTAPED STATEMENT SHOULD HAVE BEEN SUPPRESSED.
V. THE COURT ERRONEOUSLY ASSESSED THE AGGRAVATING FACTORS AND FAILED TO FIND RELEVANT MITIGATING FACTORS WHICH RESULTED IN A MANIFESTLY EXCESSIVE SENTENCE ABOVE THE MID-POINT RANGE FOR FIRST-DEGREE AGGRAVATED MANSLAUGHTER.
Robert Alesandro and his son Michael heard the accident, which occurred at 8:05 p.m. on April 20, 2006. They live on a property fronting the road defendant was traveling. The road is a major thoroughfare with a bike lane that is regularly used in the evenings by cyclists, runners and walkers. That bike lane is between the roadway and its shoulder, and a guardrail separates the shoulder from the land beyond it.
Michael went to get the mail that evening. It was dusk, and the weather was clear. The Alesandros' mailbox is at the road's shoulder, and as Michael walked down their driveway he heard the teenagers' voices. At the mailbox, Michael could see the girls walking toward him on the road's shoulder, right next to the guardrail. As he returned, Michael continued to hear their voices but did not look back until he heard a loud crash. He saw the mailbox and other "objects' flying through the air.
Robert also heard the crash and suspected someone had hit a deer. He and Michael went to see if the car's driver needed help, and Michael placed a call for assistance. The car was about 600 feet past their property in the bike lane. Defendant, the car's driver and only occupant, was stumbling. The Alesandros smelled alcohol and noticed that his eyes looked glassy and his speech was slurred. Although defendant first denied hitting anything, he went with the Alesandros to the spot where their mailbox had been. When Michael asked about the girls he had seen moments earlier, Robert told defendant to sit on the guardrail.
The Alesandros saw a cell phone near the guardrail and shoes and purses in their driveway and near their mailbox. Michael found one of the girls behind the guardrail and the other in a ditch behind it. He placed a second call for assistance, this time requesting an ambulance.
An expert in accident reconstruction employed by the county prosecutor was summoned to the scene by the first responders, and he concluded defendant was traveling at a speed between thirty-four to forty mph on the road's shoulder and struck the girls from behind, without making any discernible effort to avoid hitting them. The rented 2005 Kia Optima defendant was driving had no mechanical defects and its odometer indicated that it had been driven about 20, 000 miles. In its console were two beverage containers, one of which contained liquid that was 7.7 percent ethyl alcohol.
When the police arrived, defendant was still sitting on the guardrail and neither of the girls had a pulse or was breathing. Defendant stood up as the officers approached him but had difficulty maintaining his balance and was unsteady on his feet. He told the officers he might have hit a deer. Two officers helped defendant walk to a police car, handcuffed him and placed him inside. Because the odor of alcohol was so strong, an officer put the windows down.
At headquarters, defendant was advised of his rights in accordance with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). His responses were slurred and delivered slowly. They did not question him at that time or consider having him perform sobriety tests because his intoxication was apparent and they generally obtain blood tests when there is a fatal accident. Defendant was photographed and fingerprinted. Although fingerprints are generally not taken in DWI cases and no one told the officer to take defendant's prints, he thought defendant might be charged.
The officers who dealt with defendant at headquarters described the observations that supported defendant's arrest — inability to hold the placard under his chin steady while his picture was taken, bloodshot and swollen eyes and imbalance that led one officer to stand behind defendant so he would not fall. Indeed, out of concern for defendant's condition, given the accident and his apparent intoxication, they summoned members of the first aid squad, who "cleared" defendant.
Detectives from the Morris County Prosecutor's Office took defendant to the hospital for a blood test. By stipulation, the blood was properly drawn at 10:41 p.m. At that point, defendant's blood had an ethanol level of .305 — adjusting for a five-percent margin of error in either direction, it was between .289 and .320. Because of the delay between the accident and the taking of the samples, extrapolation evidence estimating defendant's blood-alcohol level at the time of the accident was presented by the State and defendant. The State's expert opined it was between .327 and .377, and defendant's expert concluded it was .340. Every estimate was markedly higher than the .08 legal limit.
In addition to alcohol, defendant's blood contained Librium and metabolites of Librium. Although defendant had a prescription for Paxil, an anti-depressant, nothing in his blood indicated he had taken it.
The experts agreed that Librium would exacerbate the impairments defendant would have experienced as a consequence of his blood-alcohol level alone but would not have elevated the level of alcohol in his blood. Their effect is "synergistic, " and according to one of defendant's experts, unpredictable.
At about 12:07 a.m. on April 21, four hours after the accident, defendant was taken to an interview room at the prosecutor's office. The recording of the interrogation, video and audio, depicts defendant being advised in conformity with Miranda and waiving his rights by printing his name and date on and signing the waiver form.
During the interview, defendant gave a detailed account of his activities on the day of the accident. He told the officers he had cereal, a banana and coffee for breakfast, took Librium to control his "shakes, " purchased a liter of vodka at 9:30 a.m., went home and then to visit two clients in Monmouth County. He then went home and drank vodka mixed with diet Sprite before deciding he should not be drinking and pouring the remaining vodka out. After discarding the bottle, defendant left his home in Dover to drive to his mother's home in Kinnelon. Defendant described the route he took, naming the streets he traveled, the direction he turned at an intersection and some of the buildings on the route — the high school and a sleep center.
Defendant acknowledged knowing that drinking alcohol and taking Librium would increase the effect of the alcohol but not thinking about that when he drank. He said he should not have done that, but he was an alcoholic. By his account, he had been battling with alcoholism for about seven years and had been hospitalized with pancreatitis that month and twice before. He also explained that he had a May 1 appointment to return to the hospital to be followed-up by attending six weeks of therapy involving daily three-hour sessions in the evenings.
Defendant also described the events between the accident and the recorded interview. He said he spoke with people who lived near the accident who mentioned a child, going to a police station and the hospital and then being ...