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State v. Liepe

Superior Court of New Jersey, Appellate Division

February 2, 2018

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
WILLIAM T. LIEPE, Defendant-Appellant.

          Submitted October 11, 2017

         On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 12-12-2766.

          Jill R. Cohen, attorney for appellant.

          Damon G. Tyner, Atlantic County Prosecutor, attorney for respondent (John J. Lafferty, IV, Assistant Prosecutor, of counsel and on the brief).

          Before Judges Fisher, Fasciale and Sumners.

          OPINION

          FISHER, P.J.A.D.

         In this appeal, we chiefly focus on the sentencing judge's imposition of consecutive prison terms of twenty, seven, and five years as a result of defendant's conviction for first-degree aggravated manslaughter and his two convictions for second-degree aggravated assault, all arising from a tragic 2011 auto accident in Hamilton Township. We reject defendant's arguments regarding his convictions, but we remand for resentencing because the judge appears to have applied a presumption in favor of consecutive terms in such circumstances, and because the aggregate thirty-two year sentence, all subject to an eighty-five percent period of parole ineligibility, shocks the judicial conscience, particularly when imposed on an offender who was fifty-eight at the time of the incident and sixty-two at the time of sentencing.

         I

         On an early Sunday afternoon in April 2 011, defendant William T. Liepe was driving southbound on Cologne Avenue in Hamilton Township. Although intoxicated, defendant was driving within the fifty mile per hour speed limit and within the proper lane of travel. Defendant, however, averted his eyes from the roadway to observe a ballgame on the opposite side of the road. That inattention caused defendant's vehicle to slam into the back of a Honda Accord, which had stopped in the same travel lane to make a left turn. And that collision forced the Honda into oncoming traffic, causing a collision with a northbound Cadillac Escalade. A nine-year old passenger in the Honda was killed, and the driver as well as another Honda passenger sustained serious permanent injuries; occupants of the Escalade were treated for minor injuries.

         Defendant's vehicle struck a tree, and he was taken to a nearby hospital for treatment. Police secured defendant's consent to draw blood and determined he had a .192 blood alcohol content (BAC) at that time.

         II

         Defendant was indicted and charged with: first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a); second-degree vehicular homicide, N.J.S.A. 2C:11-5; two counts of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); two counts of third-degree assault by auto, N.J.S.A. 2C:12-1(c)(2); and one count of fourth-degree assault by auto, N.J.S.A. 2C:12-1(c)(2). Defendant moved to dismiss for various reasons; the judge dismissed only the aggravated manslaughter charge. We denied but the Supreme Court granted the State's motion for leave to appeal and remanded to us to review the interlocutory order. By way of an unpublished opinion, we reversed and ordered reinstatement of the aggravated manslaughter count. State v. Liepe, No. A-5363-12 (App. Div. Apr. 10, 2014).

         Defendant moved to suppress BAC evidence, arguing the State required but lacked a search warrant for drawing defendant's blood at the hospital. At the conclusion of an evidentiary hearing, the judge denied the motion for reasons contained in a written decision.

         Trial commenced in September 2014 but defendant failed to appear for the second day of jury selection; it was learned he attempted suicide.[1] A six-day jury trial occurred in March 2015, at the conclusion of which defendant was convicted on all counts. He was sentenced to a twenty-year prison term on the aggravated manslaughter conviction, consecutive five-year and seven-year prison terms on the aggravated assault convictions, and a concurrent one-year term on the assault-by-auto conviction - an aggregate prison sentence of thirty-two years. And the terms imposed on the manslaughter and aggravated assault convictions were subject to an eighty-five percent period of parole ineligibility, N.J.S.A. 2C:43-7.2. An amended judgment of conviction directed that the periods of mandatory parole supervision for the three consecutive terms should also run consecutively, for an aggregate period of mandatory parole supervision of eleven years.

         III

         Defendant appeals, arguing:

I. IN LIGHT OF THE FACTS OF THE CASE AND THE UNBLEMISHED RECORD OF DEFENDANT, THE COURT'S SENTENCE WAS CLEARLY ERRONEOUS AND "SHOCKS THE CONSCIENCE OF THE COURT."
II. THE LOWER COURT ERRED IN DENYING DEFENDANT'S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT AND MOTION FOR A NEW TRIAL.
III. THE EXTRACTION OF [DEFENDANT'S] BLOOD FOR THE PURPOSES OF DETERMINING HIS [BAC] VIOLATED ESTABLISHED CONSTITUTIONAL PRINCIPLES AND SHOULD HAVE BEEN SUPPRESSED.
IV. THE COURT ERRED IN ALLOWING THE STATE'S EXPERT TO TESTIFY WITHOUT SCIENCE AND OPINE THAT [DEFENDANT] WAS SIXTY TIMES MORE LIKELY TO BE INVOLVED IN A FATAL ACCIDENT (NOT RAISED BELOW).
V. THE COURT IMPROPERLY ALLOWED BIAS AND EMOTION INTO THE TRIAL AND ALLOWED THE STATE TO INTRODUCE HIGHLY PREJUDICIAL PHOTOGRAPHS ALL WHICH DEPRIVED [DEFENDANT] OF HIS CONSTITUTIONAL RIGHTS (PARTIALLY RAISED BELOW).
VI. THE COURT ERRED IN FAILING TO DISMISS A JUROR FOR CAUSE WHEN SHE RECOGNIZED HER BEST FRIEND TREATED ONE OF THE VICTIMS (NOT RAISED BELOW).
VII. PLAIN ERROR AND CUMULATIVE ERROR REQUIRE REVERSAL.

         With the exception of Point I, we find insufficient merit in defendant's arguments to warrant further discussion except for the following brief comments. R. 2:11-3 (e) (2) .

         Our rejection of defendant's Point II - in which he argues the evidence could not support a conviction of first-degree aggravated manslaughter - is based on our earlier interlocutory decision in reversing the pretrial dismissal of that count. See Lombardi v. Masso, 207 N.J. 517, 538 (2011). Our rejection of defendant's Point III is based on the fact the judge found, at the conclusion of an evidentiary hearing, that defendant knowingly and voluntarily consented to the drawing of blood; those findings are deserving of our deference. See State v. Reece, 222 N.J. 154, 166 (2015). As for Point IV - in which defendant argues prejudice from a prosecution expert's testimony about the effect of alcohol on an individual's behavior - we note that defendant did not object at trial, and we are not persuaded that any error, if any occurred, was capable of producing an unjust result. R. 2:10-2. In Point V, defendant argues the judge allowed emotion to seep into the trial through admission of what defendant refers to as "highly prejudicial photographs" and through testimony that elicited information about the victims' injuries. Defendant, however, has not provided us with the photographs he believes were prejudicial. And we do not view the few examples offered by defendant about information concerning his victims' injuries to support his argument that the prosecutor's summation exceeded the bounds of proper advocacy or had the effect of unnecessarily evoking the jury's emotions. In his Point VI, defendant contends the judge erred by failing to dismiss a juror who, upon admission of photographs of one of the victims engaged in physical therapy, realized the victim's therapist was a friend. The juror brought this to the judge's attention, and the judge questioned the ...


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