SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-2352-93T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
vs.
THOMAS J. LANE,
Defendant-Appellant.
Argued November 28, 1995 - Decided December 27, 1995
Before Judges Baime, Villanueva and
Kimmelman.
On appeal from Superior Court of New Jersey,
Law Division, Somerset County.
Michael B. Jones, Assistant Deputy Public
Defender, argued the cause for appellant
(Susan L. Reisner, Public Defender, attorney;
Mr. Jones, of counsel and on the brief).
Deborah Bartolomey, Deputy Attorney General,
argued the cause for respondent (Deborah T.
Poritz, Attorney General of New Jersey,
attorney; Ms. Bartolomey, of counsel and on
the letter brief).
The opinion of the court was delivered by
VILLANUEVA, J.A.D.
Defendant Thomas J. Lane appeals from his convictions of
reckless manslaughter, N.J.S.A. 2C:11-4b(1), death by auto,
N.J.S.A. 2C:11-5, and various motor vehicle offenses. We affirm.
At about 2:00 a.m. on April 4, 1992, at the
intersection of Route 27 and Juliet Lane in Franklin Township,
defendant drove his Pontiac Trans-Am into the rear of a Honda CRX
driven by Dr. Robert Ochner. Dr. Ochner was stopped at a red
light in the right hand lane of a four-lane highway. The road
was dry and visibility was good. Upon impact, the Honda was
propelled into the intersection, where it spun around several
times before coming to a stop on the northbound side of Route 27.
Defendant's Trans-Am stopped when it hit a utility pole.
Prior to the collision, Leonard Cacciatore, who was stopped
next to Dr. Ochner in the left lane, noticed defendant's car
approaching from behind in the right-hand lane. The posted speed
limit was 40 miles per hour, but Cacciatore estimated that
defendant's Trans-Am was going about 60 miles per hour.
Cacciatore testified that he never heard the sound of brakes
being applied before the collision.
A Somerset County Grand Jury returned an indictment charging
defendant with aggravated manslaughter, N.J.S.A. 2C:11-4a (count
one), and death by auto, N.J.S.A. 2C:11-5 (count two). Defendant
was also charged with several motor vehicle offenses.
The State attempted to show that defendant's car struck the
victim's Honda before the red light turned green. The State's
expert in accident reconstruction, William Pauli, opined that
defendant's car was traveling at about 54 miles per hour when it
struck the victim's car. No skid marks were made by defendant's
car prior to hitting the victim's car. Neither defendant's car
nor the victim's car had any mechanical defects that would have
affected operation of either car.
Christopher Santi arrived on the scene shortly after the
collision and helped defendant out of his car. Santi smelled a
strong odor of alcohol emanating from defendant, and asked
defendant if he had been drinking. Defendant replied that he had
had "a cocktail or two."
Dr. Ochner was taken by medical personnel to Robert Wood
Johnson Hospital where he was diagnosed with an overwhelming head
injury and a broken neck. Because Dr. Ochner's heart had stopped
beating, a trauma team opened his chest and massaged his heart.
The team was unable to revive his heart so that it would beat on
its own and was also unable to observe any evidence of brain
function. Dr. Ochner was pronounced dead at about 5:00 a.m. The
cause of death was a fatal hemorrhage of the lining of the brain
and the brain itself. A CAT scan revealed that the injuries were
consistent with being struck from behind by a car traveling at a
high speed.
A test of defendant's blood alcohol level performed at about
3:00 a.m. showed the level to be 0.253 percent, from which Dr.
Charles Tindall opined that defendant was severely impaired and
under the influence of alcohol at the time of the accident. At
such a level defendant's reaction time, peripheral vision, and
night vision would have been impaired.
Defendant's sister, Nellie Harris, testified that defendant
was home watching television on the night of April 3, 1992, and
that he had nothing to drink. She admitted that he left the
house in his Trans-Am between 12:15 and 12:30 a.m. on the
following morning.
John Desch testified on behalf of defendant as an expert in
accident reconstruction. Desch opined that defendant was
traveling at about 45 miles per hour when he struck the victim's
car. Both experts used the same formula to estimate the speed of
the Trans-Am at the point of impact. Desch guessed that the
victim's car may have been airborne for about thirty feet. On
rebuttal, the State's expert Pauli disagreed with this assertion,
stating that if the car had been airborne for that distance it
would have left a discernable mark on the road where it landed.
The defense theory was that the traffic light had turned
green just before the accident and defendant was traveling only 5
miles per hour over the speed limit. The jury acquitted
defendant of aggravated manslaughter, but convicted him of the
lesser-included offense of reckless manslaughter, N.J.S.A. 2C:11-4b(1), and death by auto, N.J.S.A. 2C:11-5. Thereafter, the
judge found defendant guilty of several motor vehicle offenses.
At sentencing the judge merged the death-by-auto conviction
and the other motor vehicle convictions with the reckless
manslaughter conviction under count one of the indictment. He
sentenced defendant to the presumptive term of seven years for
reckless manslaughter, and committed him to the custody of the
Commissioner of the Department of Corrections. In addition,
defendant's driver's license was revoked for a two-year period
consecutive to the custodial term and defendant was assessed a
$100 V.C.C.B. penalty.
On appeal, defendant argues:
ISSUE I THE JUDGE ERRED IN REFUSING TO DEFINE THE
DISTINCTION BETWEEN RECKLESS MANSLAUGHTER AND
DEATH BY AUTO.
ISSUE II THE COURT ABUSED ITS DISCRETION BY ALLOWING THE
STATE TO REFER TO THE VICTIM AS A DOCTOR AND BY
ALLOWING THE STATE TO INTRODUCE INFLAMMATORY AND
IRRELEVANT EVIDENCE RELATING THERETO.
ISSUE III THE JUDGE ERRED IN CHARGING THE JURY REGARDING
THE ISSUE OF INTOXICATION AT 0.10 PERCENT BLOOD
ALCOHOL CONTENT AND THE PROSECUTION'S SUMMATION
COMPOUNDED THAT ERROR.
ISSUE IV THE JUDGE IMPROPERLY RESTRICTED THE TESTIMONY OF
DEFENDANT'S EXPERT WITNESS.
ISSUE V THE DEFENDANT'S SENTENCE WAS MANIFESTLY
EXCESSIVE AND MUST BE REDUCED.
The defendant argues that the trial court judge erred in not adequately defining the difference between reckless manslaughter and death by auto. Defendant raised this issue in his motion for a judgment of acquittal and, in the alternative, in his motion for a new trial. Because the harmless error rule applies, a reversal is not required unless the appellate court finds that there was error "capable of producing an unjust result." R. 2:10-2. Any error is harmless unless there is reasonable doubt that the error contributed to the verdict. State v. Macon, 57 N.J. 325, 338 (1971); State v. Slobodian, 57 N.J. 18, 23 (1970).
Defendant contends that the jury did not understand that "separate acts of recklessness" must be proven in addition to
reckless driving before a jury can convict a defendant of
reckless manslaughter. Defendant apparently presumes that the
jury relied on defendant's intoxication as a separate act of
recklessness, but argues that intoxication by itself is not a
separate act of recklessness to justify a manslaughter
conviction.
Both sides agree that State v. Jiminez,
257 N.J. Super. 567
(App. Div. 1992), is controlling law. In Jiminez, the defendant
was acquitted of aggravated manslaughter but was convicted of
reckless manslaughter. Id. at 572. The defendant successfully
argued that the matter should be reversed on the ground that the
jury instructions were confusing and did not accurately set forth
the law. Id. at 572, 583. After first briefly tracing the
history of the current death-by-auto statute, N.J.S.A. 2C:11-5,
and noting that in State v. Milligan,
202 N.J. Super. 336 (App.
Div. 1985), aff'd o.b.,
104 N.J. 67 (1986), the Appellate
Division held that an individual could be charged with aggravated
manslaughter and/or death by auto , but could not be charged with
reckless manslaughter and death by auto because the conduct
prohibited by these latter two statutes was identical. Jiminez,
supra, 257 N.J. Super. at 575-76.
The Supreme Court affirmed Milligan substantially for the
reasons set forth by the Appellate Division. Justice Clifford,
however, wrote a forceful dissent. Milligan, supra, 104 N.J. at
68-80. Justice Clifford opined that the death-by-auto statute
evolved from "the fact that under the common law all recklessly-caused homicides were punishable as manslaughter," and
consequently "grand juries were reluctant to indict and petit
juries were loathe to convict some defendants despite the fact
that they plainly had committed reckless vehicular homicide."
Id. at 71-72 (Clifford, J., dissenting). Thus, the Legislature
amended the death-by-auto statute to provide for a lesser penalty
for a vehicular homicide than that called for by a manslaughter
conviction. Id. at 72 (Clifford, J., dissenting).
Justice Clifford concluded that while death by auto is
clearly a lesser-included offense of aggravated manslaughter when
death is caused by a motor vehicle, death by auto was also
intended by the Legislature to be a lesser-included offense of
reckless manslaughter. Id. at 72, 76 (Clifford, J., dissenting).
The Justice concluded that "if there is proof of recklessness
beyond that required to sustain a death-by-auto charge -- that
is, proof of acts of recklessness, in addition to defendant's
reckless driving of his automobile, that caused the victim's
death -- then a manslaughter prosecution should be allowed." Id.
at 75 (Clifford, J., dissenting).
Turning back to State v. Jiminez, supra, we pointed out that
after Milligan the Legislature amended the death-by-auto statute
to add paragraph "d." Jiminez, supra, 257 N.J. Super. at 576.
That subsection reads:
Nothing herein shall be deemed to preclude, if the evidence so warrants, an indictment and conviction for manslaughter under the provisions of N.J.S. 2C:11-4. If an indictment for manslaughter is brought in a case involving the operation of a motor
vehicle, . . . death by auto . . . shall be
considered a lesser-included offense.
[N.J.S.A. 2C:11-5d.]
In that case, we framed the issue as whether the jury
instructions properly explained the quantitatively greater
recklessness contemplated for manslaughter than that required for
a death-by-auto conviction. Jiminez, supra, 257 N.J. Super. at
582. We found it "fair to read the legislative rejection of
Milligan as an endorsement of the dissenting view expressed by
Justice Clifford." Ibid. Thus, we held that the current death-by-auto statute, N.J.S.A. 2C:11-5, "requires the trial judge to
craft a charge to a lay jury explaining the subtle and
sophisticated distinctions between the concept of recklessness
envisioned by the Legislature in death by auto as distinguished
from the recklessness envisioned in the manslaughter statute."
Id. at 583.
Our review of the original charge satisfies us that it
followed the dictates of Jiminez. Therefore, there was no error.
During deliberations, the jury requested that the judge
repeat the definition of recklessness as it applies to
manslaughter and death by auto, and define what constitutes
"separate acts."See footnote 1 Defendant argues that the judge erroneously
refused to guide the jurors, and by essentially repeating the
charge suggested in Jiminez, the judge "deprived the jury of any
clear understanding of what separates death-by-auto from
manslaughter." Defendant reasons that if intoxication by itself
can constitute a separate act of recklessness, "then,
functionally, death-by-auto is no longer an available verdict for
drunk drivers" because a drunk driver who kills someone as a
result of reckless driving is always guilty of manslaughter.
Defendant proposes that the "resolution to this obvious dilemma
is that, while intoxication may play a part in evaluating
recklessness, it cannot, by itself, constitute the necessary
separate act to justify a manslaughter conviction."
Justice Clifford's dissent in Milligan contradicts
defendant's theory. Justice Clifford specifically addressed the
issue of intoxication as a separate act of recklessness:
I suggest . . . that under certain
circumstances drinking would constitute an
additional act of recklessness that would
justify a manslaughter prosecution. The
circumstances surrounding the drinking would
have to have extraordinary characteristics.
[Milligan, supra, 104 N.J. at 78 n.2
(Clifford, J., dissenting).]
In State v. Labrutto,
114 N.J. 187, 204 (1989), the Supreme
Court stated that a defendant's intoxication is a factor to be
considered by a jury in determining whether a defendant is guilty
of death by auto. In short, it is for the jury to decide whether
a defendant's intoxication constitutes a separate reckless act to
warrant a manslaughter conviction; sometimes it will be enough by
itself and sometimes it will not.
The State presented evidence that defendant was intoxicated
when his car struck the victim's car, he was speeding, and he ran
a red light. This evidence is similar to the facts in State v.
Scher,
278 N.J. Super. 249 (App. Div. 1994), certif. denied,
140 N.J. 276 (1995), where we stated:
Consideration of these factors separately,
which is defendant's thesis here, may be
insufficient in itself to elevate death by
auto to reckless manslaughter. However, when
a combination of the factors exist, the test
has been met. It is enough to say that the
record fairly shrieks of defendant's guilt.
[Id. at 271.]
The defendant disputes these allegations but admits that if
the jury found in favor of the State regarding any combination of
these events, charges on both manslaughter and death by auto were
appropriate. Nonetheless, defendant insists that the jury needed
more guidance as to what constitutes separate acts of
recklessness.
Defendant relies in part on a letter dated December 6, 1993,
sent by a juror to the trial judge wherein the juror expressed
concern about whether defendant's intoxication could constitute a
separate reckless act to justify a reckless manslaughter
conviction. Defendant also stresses Justice Clifford's
admonition that to use drinking as a separate act the
"circumstances surrounding the drinking would have to be
extraordinary." Defendant then concedes that, although
intoxication may sometimes be a separate act, the jury was not
told this.
The judge clearly followed the charge suggested by this
court in Jiminez and properly instructed the jury on the elements
of aggravated manslaughter, reckless manslaughter, and death by
auto, and also correctly and thoroughly defined "reckless." The
judge thus properly left it to the jury to determine, based on
the evidence and the charge, whether defendant committed separate
reckless acts in addition to his reckless driving on the night in
question. We find that the judge's response to the jury's
request was proper because the determination of whether defendant
was responsible for additional acts of reckless conduct to
justify a manslaughter conviction was within the province of the
jury. Any error in the charge or any failure to charge was
harmless.
Defendant argues that the trial court abused its discretion and he was deprived of a fair trial due to both the prejudicial impact of references to the victim as "Doctor" and the prejudicial and irrelevant testimony of Dr. Louis D'Amelio.
Dr. D'Amelio, who was qualified as an expert in trauma surgery, testified that Dr. Ochner had come to the hospital to help care for a young man who had been in an automobile accident. He testified further that when Dr. Ochner left the hospital he was an "awake, alert, healthy, and . . . vibrant young man."
Generally, the character of the victim is irrelevant to the magnitude of the crime, but here, because of the circumstances and early morning hour of the accident, the jury was entitled to know from where the victim was coming. Moreover, even if Dr. D'Amelio's testimony had the potential to inflame the jury, there
is no evidence that it did. Any error in admitting the testimony
was harmless, and the trial court judge did not abuse his
discretion in refusing to exclude the evidence pursuant to
N.J.R.E. 403.
Defendant also complains that he was prejudiced by the
prosecutor's references to the victim as a doctor. The
prosecutor's brief opening remark referring to the fact that
prior to the accident Dr. Ochner was at the hospital in his
capacity as a surgeon and then was taken back to the same
hospital, where he died from his injuries a few hours later, was
not capable of producing an unjust result. R. 2:10-2.
Furthermore, had the jury been unfairly influenced by status of
the victim, it probably would have convicted defendant of
aggravated manslaughter, not the lesser-included offense of
reckless manslaughter.
Defendant additionally relies on a portion of the
prosecutor's closing remarks. These remarks were in part in
response to remarks made by defendant's attorney admonishing the
jury not to base a decision on sympathy for the victim and were
not "so egregious that [they] deprived defendant of a fair
trial," State v. Ramseur,
106 N.J. 123, 322 (1987).
Parties are not entitled to a perfect trial, but only to a
fair trial. Brown v. United States,
411 U.S. 223, 231-32,
93 S.
Ct. 1565, 1570,
36 L. Ed.2d 208, 215 (1973); Bruton v. United
States,
391 U.S. 123, 135,
88 S. Ct. 1620, 1627,
20 L. Ed.2d 476, 484 (1968) (quoting Lutwak v. United States,
344 U.S. 604,
619,
73 S. Ct. 481, 490,
97 L. Ed. 593, 604 (1953)); State v.
Mallozzi,
246 N.J. Super. 509, 518 (App. Div.), certif. denied,
126 N.J. 331 (1991). Defendant received a fair trial.
Defendant argues that the judge erroneously instructed the jurors that if they found defendant's blood alcohol level was 0.10 percent or higher they could presume recklessness.
We find that the judge never mentioned a presumption, but merely told the jurors that if they found this level of blood alcohol, it was one factor from which they could infer recklessness. This was proper.
Further, the judge did not improperly exclude testimony as to two portions of defendant's expert witness' report. Defendant was not entitled to present this information through an expert since it was based upon facts not in evidence, erroneous conclusions and pure speculation.
Lastly, defendant argues that his sentence was manifestly excessive and it should have been for only five years.
A sentence should not be disturbed on appeal unless it represents an abuse of discretion by the trial court, State v. Gardner, 113 N.J. 510, 516 (1989), and shocks the judicial conscience, State v. Roth, 95 N.J. 334, 364 (1984).
The judge found two aggravating factors and no mitigating factors: the risk that defendant will commit another crime and the need to deter defendant and others, N.J.S.A. 2C:44-1a(3),
(9). The judge noted that the second degree offense of reckless
manslaughter carries with it a presumption of incarceration
pursuant to N.J.S.A. 2C:44-1d. The judge stated that because
defendant's record revealed only one prior conviction of an
indictable offense, defendant could be sentenced at the lower
range for a second degree offense. Because defendant had an
extensive driving record and he was driving while on the revoked
list when the fatal accident occurred, the judge imposed a
sentence greater than the minimum, but not the maximum. The
sentence does not shock the judicial conscience.
The conviction and sentence under review are affirmed.
Footnote: 1 The judge had previously defined the term "reckless."