(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued December 2, 1997 -- Decided March 25, 1998
COLEMAN, J., writing for a unanimous Court.
In this appeal, the Court addresses two issues: whether a medical examiner presenting opinion
evidence regarding the manner in which a motor vehicle was operated must have qualifications beyond those
required to be a medical examiner, and , if so, whether the medical examiner in this case possessed those
qualifications.
On Friday, January 31, 1992, defendant, Charles Jamerson, was the driver of a vehicle that was
involved in a fatal accident in Elk Township at the intersection of County Route 608 (also known as Clayton
Avenue) and County Route 553, also known as Buck Road. Beginning several hours prior to the accident,
Jamerson had been drinking beer and other alcoholic beverages. At the time of the accident, Jamerson was
traveling on Route 553 behind a vehicle operated by Robert McDermott. McDermott decided to make a
right turn onto Route 608. As he slowed and signaled that turn, McDermott noticed a light-colored station
wagon facing west (the opposite direction) on Route 608. That vehicle was operated by seventy-seven-year-old John Ballard. His wife, seventy-four-year-old Anna Ballard was a passenger in that vehicle. The facts
are in dispute concerning whether the Ballard vehicle was actually stopped at the stop sign on Route 608.
McDermott testified that, as he was making his turn, Jamerson crossed the double-yellow line on
Route 553, went into the left lane, angrily gestured, and passed McDermott's vehicle. After the Ballards'
car pulled into the intersection, the front end of Jamerson's vehicle struck the left center portion of the
Ballard's vehicle in the southbound lane of Route 553 in the intersection.
When Elk Township Police Officer Milton Sahms arrived at the scene, he called for a helicopter to
transport Mrs. Ballard to Cooper Hospital. An ambulance took Mr. Ballard to Washington Memorial
Hospital. He died within an hour of injuries he sustained in the accident. On April 5, 1992, Mrs. Ballard
died of complications caused by the accident.
Shortly after the accident, blood and urine samples were taken from Jamerson, who had been
boisterous at the scene of the accident. In addition, Officer Sahms smelled a strong odor of alcohol on
Jamerson's breath and observed beer cans inside and outside of Jamerson's car. Within an hour after the
accident, Jamerson's blood alcohol level was .186. According to Chief Forensic Scientist Dr. Charles
Tindall, .17 was the lowest blood alcohol level Jamerson would have had at the time of the accident.
Jamerson was charged with two counts of second-degree reckless manslaughter. During trial of the
matter before a jury, the defense strategy was to demonstrate that defendant's conduct did not satisfy the
recklessness standard. The question whether the victims' vehicle ran the stop sign was intertwined with the
issue of recklessness. The State introduced testimony through County Medical Examiner Dr. Claus Speth
that Jamerson was operating his vehicle in a reckless manner at the time it collided with the Ballards'
vehicle. Dr. Speth had been qualified at trial as a forensic pathologist and not as an accident
reconstructionist. That notwithstanding, during trial, the prosecutor questioned Dr. Speth regarding the
nonphysiological circumstances of Mr. Ballard's death. Dr. Speth concluded that Mr. Ballard's death was a
homicide rather than an accidental death. He further concluded that the testimony of a lay witness, who
testified that Mr. Ballard had failed to stop at the stop sign, was not credible based on his own observations
at the scene following the accident.
Following his conviction, the Appellate Division concluded that, although the medical examiner was
unqualified to render such an opinion because he was not qualified an automobile accident reconstructionist,
the objectionable testimony was harmless error.
The Supreme Court granted Jamerson's petition for certification.
HELD: The medical examiner in this case was qualified only as an expert in forensic pathology; opinion
evidence concerning whether a collision was accidental or the result of a driver's recklessness must be
presented through someone with special qualifications, such as an accident reconstructionist; it is beyond the
expertise of a medical examiner to present opinion evidence concerning the credibility of the testimony of a
fact witness.
1. For reckless manslaughter, the State must prove beyond a reasonable doubt causative acts of recklessness
that are different in kind from the acts involved in reckless driving that support a conviction for death by
auto. (pp. 16-19)
2. Crucial to the issue whether Jamerson recklessly caused the victims' deaths was whether Ballard
disobeyed the stop sign. (pp. 19-20)
3. Because Dr. Speth was qualified only as an expert in forensic pathology, his testimony should have been
limited to describing the physical properties of the implement that caused the Ballards' deaths, narrating the
physiological status of the bodies a the time of death, and ruling out the possibility that the injuries were self-inflicted or sustained as a result of mere inadvertence. (pp. 21-23)
4. An expert's testimony that expresses a direct opinion that a defendant is guilty of the crime charged is
wholly improper. (pp. 23-24)
5. The rules of evidence permit a person not qualified as an accident reconstructionist to present some lay
opinion evidence if the testimony is rationally based on the perception of the witness and the trial court is
satisfied that it will assist in understanding the witness's testimony or in determining a fact in issue. (pp. 24-27)
6. An expert may not testify regarding a witness's credibility, as that issue is particularly within the jury's
ken and one with which jurors ordinarily require no expert assistance. (pp. 27-28)
7. The jury instruction in respect of the weight to be accorded to and the assessment of expert opinion
testimony was not sufficient to overcome the prejudicial effect of Dr. Speth's statements because the jury
was laboring under the erroneous assumption that he was testifying to an area within his expertise. (pp. 28-29)
8. Given the contested evidence in this case, the prejudicial impact of the objectionable testimony of Dr.
Speth cannot be regarded as harmless error. (pp. 29-30)
9. The trial court's erroneous reinstruction of the jury regarding the difference between manslaughter and
death by auto was prejudicial to Jamerson because it lessened the State's burden of proof and made Dr.
Speth's conclusion that this was reckless manslaughter more plausible. (p. 30)
The reckless manslaughter convictions are REVERSED and the matter is REMANDED to the Law
Division for retrial.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI and
STEIN join in JUSTICE COLEMAN's opinion.
SUPREME COURT OF NEW JERSEY
A-
39 September Term 1997
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CHARLES L. JAMERSON, a/k/a CHARLES
LESTER JAMERSON, CHARLIE, CHUCK,
Defendant-Appellant.
Argued December 2, 1997 -- Decided March 25, 1998
On certification to the Superior Court,
Appellate Division.
Abby P. Schwartz, Assistant Deputy Public
Defender argued the cause for appellant
(Ivelisse Torres, Public Defender, attorney).
Deborah C. Bartolomey, Deputy Attorney
General, argued the cause for respondent
(Peter Verniero, Attorney General of New
Jersey, attorney).
The opinion of the Court was delivered by
COLEMAN, J.
This appeal involves convictions for reckless manslaughter
based in part on operating a motor vehicle while under the
influence of alcohol. Defendant was tried before a jury on two
counts of second-degree reckless manslaughter, contrary to
N.J.S.A. 2C:11-4b(1). The defense strategy was to demonstrate
that defendant's conduct did not satisfy the recklessness
standard. The question whether the victims' vehicle ran a stop
sign was intertwined with the issue of recklessness. The State
introduced testimony through a county medical examiner that
defendant was operating his vehicle in a reckless manner at the
time it collided with the decedent's vehicle.
The critical issues raised are (1) whether a medical
examiner presenting opinion evidence regarding the manner in
which a motor vehicle was operated at a given time must have
qualifications beyond those required to be a medical examiner,
and (2) if such additional qualifications are required, whether
the medical examiner in this case possessed those qualifications.
In an unpublished opinion, the Appellate Division concluded that
although the medical examiner was unqualified to render such an
opinion because he was not qualified as an automobile accident
reconstructionist, the objectionable testimony was harmless
error. We granted defendant's petition for certification.
149 N.J. 35 (1997).
We reverse and hold that the medical examiner in this case
was qualified only as an expert in forensic pathology. Opinion
evidence concerning whether a collision was accidental or the
result of a driver's recklessness must be presented through
someone with special qualifications, such as an accident
reconstructionist. It is also beyond the expertise of a medical
examiner to present opinion evidence concerning the credibility
of a witness's testimony regarding whether a traffic sign was
obeyed.
On Friday, January 31, 1992, defendant, Charles Jamerson,
and his cousin, Eric Ingels, spent the day together celebrating
Ingels's twenty-eighth birthday. Defendant arrived at Ingels's
home at 9:30 a.m. and suggested that they get breakfast and go
out for some beers. They walked to a bar where they had an early
lunch between 10:30 and 11:00 a.m. They remained at the bar
until approximately 12:30 p.m. While at the bar, defendant
consumed more than forty-eight ounces of beer and three ounces of
Sambuca. Thereafter, they walked to defendant's father's house
to pick up some money and to borrow his car, a red Chevrolet
Cavalier that was involved in the fatal accident. Defendant and
Ingels then drove to defendant's sister's house, carrying with
them a twelve-pack of twelve-ounce beers. After consuming some
beers at defendant's sister's house, defendant drove his sister
to a bank. Upon returning, defendant continued to drink.
Shortly after 2:30 p.m., defendant and Ingels left to pick up
defendant's mother from her job in Glassboro. Ingels brought the
remaining cans of beer from the twelve-pack. During that trip,
the fatal accident occurred in Elk Township.
The accident occurred at the intersection of County Route
608, also known as Clayton Avenue, and County Route 553, known as
Buck Road. The day was gray and windy, but the road was dry.
Route 608 runs east and west and Route 553 runs north and south
with one lane in each direction. A double yellow line, signaling
“no passing,” runs down the center of Route 553. The speed limit
on Route 553 is fifty miles per hour. On Route 608, the posted
speed limit is forty-five miles per hour and there is a stop sign
at the road's intersection with Route 553. The stop sign is
posted forty-five feet before the intersection. Route 553, on
which defendant was proceeding northbound at the time of the
accident, is a through street.
Shortly before the accident, a Mercury Sable, operated by
Robert McDermott, pulled onto Route 553 in front of defendant.
McDermott testified that defendant and Ingels acted as though the
Mercury Sable was “cutting them off,” forcing them to slow down.
From McDermott's point of view he did not “cut off” defendant.
Rather, he maintains that when he pulled onto Route 553 defendant
was quite a distance away, but gained rapidly at an estimated
speed of between sixty-five and seventy miles per hour.
McDermott decided to make a right turn onto Route 608. As
he slowed and signaled a right turn, he noticed a light-colored
station wagon facing west (the opposite direction) on Route 608.
The facts are in dispute concerning whether the station wagon was
actually stopped at the stop sign on Route 608.
Seventy-seven-year-old John Ballard was the driver of the
station wagon. His wife, seventy-four-year-old Anna Ballard was
also in the car. McDermott testified that Mr. Ballard looked
directly at him, and then looked in the opposite direction before
proceeding into the intersection. According to McDermott,
defendant crossed the double-yellow line, went into the left
lane, angrily gestured, and passed as McDermott was turning.
After the Ballards' car pulled into the intersection, the front
end of defendant's vehicle struck the left center portion of the
Ballards' vehicle in the southbound lane of Route 553 in the
intersection.
Elk Township Police Officer Milton Sahms arrived at the
scene at 2:49 p.m. The officer called for a helicopter to
transport Ms. Ballard to Cooper Hospital. An ambulance took Mr.
Ballard to Washington Memorial Hospital. He died within an hour.
Officer Sahms stated that when he arrived, defendant was
acting “boisterous,” “walking around the vehicle, hollering [and]
speaking loudly,” and had some minor injuries. The officer
directed defendant to sit on the side of the road to await an
ambulance. Defendant told Sahms that the accident occurred when
he was going around a car turning right and that Ballard ran the
stop sign. Sahms smelled a strong odor of alcohol on defendant's
breath and observed beer cans inside and outside of defendant's
car. Sahms did not observe defendant slurring his speech or
staggering, nor did he ask defendant when he had had his last
drink. Sahms did not perform any field sobriety tests.
Defendant and Ingels were taken to Washington Hospital.
The Gloucester County Medical Examiner, Dr. Claus Speth,
arrived at the accident scene shortly after 3:00 p.m. After
observing the crash scene and interviewing police officers who
had obtained statements from witnesses, Dr. Speth went to the
emergency room at Washington Hospital. He requested a physician
to obtain blood and urine samples from defendant. Dr. Speth
learned that Mr. Ballard had been pronounced dead. Dr. Speth
proceeded to the Cooper Trauma Center to determine Ms. Ballard's
condition and to notify her of her husband's death.
Dr. Speth performed an autopsy on Mr. Ballard the next
morning. He found crushing injuries to the left side of Mr.
Ballard's body, consisting primarily of crushed ribs on the left
side. Those crushed ribs caused the left lung to collapse. Mr.
Ballard's pelvis, backbone, and spleen were crushed, and his
liver and heart were torn. Death was caused by major injuries to
the ribs, lungs, heart, liver, and spleen.
Ms. Ballard sustained a significant head injury, a ruptured
spleen, several rib fractures, a bruised lung, and significant
injuries above and below the diaphragm. On April 5, 1992, she
died of complications caused by the accident.
Kathleen Sandelier was an eye witness to the accident and
was called as a witness by defendant. She testified that she was
driving behind defendant's car at the time of the accident. She
testified that the Ballards' car entered the intersection without
stopping for the stop sign. Her testimony was consistent with
her statements to the investigating police officer at the
accident scene. However, she gave conflicting statements to Dr.
Speth in a post-accident interview. Sandelier acknowledged
speaking to Dr. Speth and stated that he “had [her] extremely
confused as to what [she] saw.” She admitted during cross-examination that trees on the side of the road partially
obstructed her view of Route 608 and that she did not see clearly
whether or not Ballard stopped for the stop sign. It was her
“impression,” however, that Ballard ran the stop sign.
Valerie Kennedy was also an eye witness to the accident.
She was traveling on Route 553 toward defendant when she observed
McDermott turning right onto Route 608. She saw defendant's car
come from behind McDermott and partially enter her lane. She was
forced to pull halfway onto the shoulder to avoid a possible
collision. She estimated that the majority of defendant's car
was in her lane traveling at a speed of “high 50s [to] 60s.” She
observed defendant's vehicle strike the Ballard vehicle on the
driver's side. She could not say whether the Ballard vehicle
stopped for the stop sign.
Officer Seibert, who had investigated fatal accidents in Elk
Township for six years, testified that the point of impact was in
the southbound lane of Route 553. He found no skid marks on the
road. Based on his investigation, he concluded that the cause of
the accident was defendant's improper passing and drunk driving,
and that Ballard did not seem to be at fault. He opined that if
defendant had stayed in his lane and had not gone around
McDermott the accident would not have occurred.
Charles Kearney, Senior Forensic Scientist at the New Jersey
State Police Lab, tested defendant's blood using a gas
chromatograph within an hour of the accident. He determined that
defendant's blood alcohol level was .186. Dr. Charles Tindall,
the Chief Forensic Scientist in charge of four State crime
laboratories, was qualified as a witness in forensic toxicology.
He testified that a man defendant's size with a blood alcohol
level of .186 would have consumed approximately eight twelve
ounce beers, or twelve ounces of 80 proof spirits. Dr. Tindall
also testified that a person with a blood alcohol level of .186
is over twenty-five times more likely to be involved in an
accident than a person who has not been drinking. He stated that
with a .17 blood alcohol level, the lowest level that defendant
would have had at the time of the accident, a person would not be
able to drive safely.
Lieutenant Leo Selb, an accident reconstruction expert,
reconstructed the accident for the prosecution. Based on his
investigation, he asserted that the crash occurred in the
southbound lane of Route 553 and that defendant's car was moving
back into the northbound lane when the crash occurred. He opined
that at impact, defendant was traveling within the legal limit at
about fifty miles per hour, which is seventy-five feet per
second. He conceded that defendant's driving may only have been
careless, but taking into account that defendant did not slow
down, was passing in a no-passing zone, and had a .186 blood
alcohol level, Selb characterized defendant's conduct as
reckless.
Selb made a supposition "that Mr. Ballard stopped at the
stop sign" and then proceeded into the intersection, accelerating
to approximately twenty-six miles per hour at impact. The stop
sign was posted forty-five feet before the intersection. Selb
theorized that Ballard noticed McDermott's vehicle as the
immediate hazard and proceeded into the intersection only after
yielding to him.See footnote 1 Thus, Selb testified that “had Mr. Jamerson
remained in his lane . . . Mr. Ballard would have been able to
safely negotiate that intersection and cross it.” Furthermore,
Selb indicated that once the drivers “got to where they were” in
the intersection, they had .79 seconds to react. He concluded
therefore, that neither driver could have avoided the accident,
even if they had normal reaction time.
Dr. Speth's problematic testimony was introduced in the following manner. He was qualified at trial as a forensic pathologist and not as an accident reconstructionist. Apart from describing the injuries found at the time of autopsy and the physiological causes of the deaths, Dr. Speth was questioned by the prosecutor regarding the nonphysiological “circumstances” of
Mr. Ballard's death. During direct examination, Dr. Speth
stated:
Under the guidelines for a medical examiner,
a medical examiner should be aware of the
criteria by which one distinguishes what
would be considered an accident versus a
homicide. Now the medical examiner can use
his determination as the evidence that any -
this goes beyond the expertise. It's the
evidence that any common man would use to
reach the same conclusion. That's called
prima facie evidence and the medical examiner
uses the facts that he has collected to make
determinations which are called prima facie;
and based on all the evidence, I reached the
conclusion that this was a homicide.
Thus, Dr. Speth concluded that Mr. Ballard's death was a homicide
rather than an accidental death.
He further explained what he meant:
Well the circumstances that would constitute
that is that I determine [from] my own
investigation and by my looking at the facts
and the witness statements that the car crash
had been caused by the red Cavalier and that
this crash had caused the death of Mr.
Ballard and that this -- that the operator of
the Cavalier had been driving under the
influence in a manner --
[Defense Attorney]: I object, Your Honor.
He's not an expert. He's here as a
pathologist. I certified him as a
pathologist. I have never been given his
report that he sets that forth. He's not an
expert. We're going to hear from Dr.
Tindall. I think that should be stricken. I
do not certify that Dr. Speth, and I have a
great respect for Dr. Speth, I've known him
some time, but he's not here as an alcohol
expert.
THE COURT: [Mr. Prosecutor], do you have some
foundation upon which this conclusion is
based, that this witness can testify to, that
is?
At that point defense counsel continued his objection,
arguing that Dr. Speth was qualified only as a pathologist and
not as an “alcohol expert.” In response to the objection, the
prosecutor elicited information from Dr. Speth that qualified him
to testify as an expert regarding the effects of alcohol on the
human body. Dr. Speth testified that on Mr. Ballard's death
certificate, he listed the cause of death as "vehicular
homicide," meaning that "the crash involved circumstances that
would qualify it to be a homicide rather than an accident." He
stated that if he had regarded this as an "accident," he would
have listed the cause of death as a "vehicular accident."
During cross-examination, defense counsel explored Dr.
Speth's opinion that Mr. Ballard's death was a homicide.
According to the defense, the aim of the questioning was to
neutralize the objectionable testimony elicited on direct.
Defense counsel asked Dr. Speth whether it was always a homicide
when an accident occurred while the driver was intoxicated. Dr.
Speth answered “no,” and continued:
Well, what I am speaking about here is, is
that I'm not judge and jury, I'm talking
about prima facie evidence of facts. The
facts are that we had a level above the per
se level and we had driving conduct which was
such, based on witness statements and scene
evidence, the three factors [the alcohol, not
slowing down and passing in a no passing
zone] I discussed that I decided that this
was a homicide, Mr. Sanderson.
Q. Okay. You did not base that opinion on, however, what the facts were out of the accident scene. You just based it on the
fact that one, there was a death; two, there
was a motor vehicle accident; and three, that
defendant was above the prescribed level.
A. No, no. You've totally misquoted me. I
said that I understood the circumstances of
the crash. I didn't say that there was an
accident. I understood the circumstances of
the crash and I took that into account when I
made my determination.
Q. Well, you are not an accident
specialist, are you?
A. I don't know the term "accident
specialist." I --
Q. Well, accident reconstruction or someone
who has been trained in motor vehicle
accidents.
A. Well, are we getting back into
qualifications here?
Q. Well, you -- can't you tell me Doctor,
whether you've got that?
A. There are four levels of training in
accident --
Q. No, I didn't ask you to give the
qualifications. I asked you if you are an
expert. That is again, yes or no.
THE COURT: I don't think he can answer this
one, yes or no. I think he's allowed to
elaborate on this one.
[DEFENSE COUNSEL]: But, Judge, if the answer
is no, then we don't need any more
qualifications -- we don't need any more
statements.
THE COURT: No, I think he's got to state what
he understands your question to mean and then
answer it in that context.
[DEFENSE COUNSEL]: I'll withdraw the
question.
Thereafter, defense counsel examined the possibility that
Mr. Ballard had run the stop sign in order to impeach Dr. Speth's
opinion that it was a vehicular homicide rather than a vehicular
accident. Dr. Speth and defense counsel had the following
colloquy:
Q. Doctor, in making up your determination,
did you try to conclude how much time my
client had to avoid the accident?
A. I don't understand the question.
Q. Well, before determining that this was a
homicide, did you, in talking -- you told us
you talked to the witnesses, you told us you
were at the scene. Did you make a conclusion
as to how much time my client had to avoid
the collision?
A. Well, I don't understand how your client
can have time to avoid a collision that he
caused. The person who can avoid a collision
is the person who is not causing the
collision.
Q. In other words, you think that a man on
a through road who is confronted by a driver
who comes out of a stop sign caused the
collision.
A. Well, you're assuming facts here that
are not in evidence. If you want me to
assume facts that are not in evidence, you'll
have to present --
Q. I beg your pardon, Doctor, they are in
evidence.
A. You'll have to --
Q. I beg your pardon, they are in evidence.
We've had witnesses to that effect.
THE COURT: What's the next question, please?
Q. Didn't you know that Mr. Ballard came
out of a stop sign, the decedent?
A. I knew something very definite. I knew
that Mr. Ballard had not -- that there was no
evidence available, there were no facts in
evidence at any time that I knew of that Mr.
Ballard had violated the stop sign. What I
knew, and let me finish my answer please,
what I knew from all of my investigation
based on witness statements, personal
observations of the crash scene is that Mr.
Ballard -- Mr. Jamerson was passing a
northbound vehicle over a double line before
the intersection, was in the wrong lane and
broad-sided a slow-moving station wagon to
such a degree that despite the mass
difference between the station wagon and the
Cavalier, caused the station wagon to
completely reverse its direction without
almost any drag in the direction that the
station wagon was going.
Q. Uh-huh.
A. And despite the small mass of the
Cavalier and that therefore, my conclusion
was, based on witness statements and my
observations, that the Cavalier was driving
in the wrong lane, passing illegally and
broad-sided a car in the middle of an
intersection in the wrong lane. Now I might
-- therefore, I could not answer your
question where you asked me, did he have a
chance to react or avoid an accident when
he's the one causing it? How can I answer
your question then?
Q. Did you review the statement of Kathleen
Sandlier?
A. Yes. And for that reason, I took my own
statement from her which I have on a cassette
here with me today if you would like to hear
it.
Dr. Speth testified that he interviewed Kathleen Sandelier, a witness to the accident, who testified that it was her impression that the Ballard vehicle ran the stop sign. Dr. Speth determined that although she previously stated that the Ballard
car ran the stop sign, she was not in a position actually to see
the stop sign at the time of the accident. He explained that he
went back to the scene and checked the location where Sandelier
was positioned. Based on his own observations, he concluded that
Sandelier could not have seen the stop sign.
Defendant argues that because Dr. Speth was qualified only
as an expert in forensic pathology, and not as an accident
reconstructionist, he was not competent to testify that the
accident was a homicide or that defendant's driving was reckless.
Defendant also maintains that Dr. Speth was unqualified to
comment on the credibility of Ms. Sandelier and that a witness's
credibility is not a subject requiring expert testimony.
The State argues that because much of the disputed testimony
was elicited by the defense during cross-examination, it cannot
be grounds for reversal. The State also argues that Dr. Speth
need not have been an accident reconstructionist because he based
his opinions on personal observations and witness interviews
following the accident.
The crime of reckless manslaughter, of which defendant was
convicted, is based on N.J.S.A. 2C:11-4b(1). That statute
provides that "[c]riminal homicide constitutes manslaughter when
. . . [i]t is committed recklessly." Ibid. To determine whether
the Ballards' deaths were homicides, the jury had to decide
whether defendant operated his vehicle recklessly by consciously
disregarding a substantial and unjustifiable risk that death
would result from his conduct. N.J.S.A. 2C:2-2(b)(3); State v,
Bowens,
205 N.J. Super. 548, 553 (App. Div. 1985), aff'd,
108 N.J. 622 (1987). Because the deaths were caused by a motor
vehicle and the Code of Criminal Justice also contains a
subsection proscribing death by auto, N.J.S.A. 2C:11-5, we must
begin our legal analysis by identifying the elements of the
reckless manslaughter offense.
Before 1988, the standard of conduct proscribed in both the
reckless manslaughter and the death by auto statutes was
identical: recklessness. State v. Milligan,
202 N.J. Super. 336
(App. Div. 1985), aff'd,
104 N.J. 67 (1986). A conviction on
only one of those offenses was permitted. Subsequent to the
Supreme Court's decision in Milligan, (in which Justice Clifford
dissented) the Legislature amended the death by auto statute to
provide that if warranted by the evidence, a conviction for both
offenses is permitted. It also provided that where a
manslaughter indictment is based on the operation of a motor
vehicle, death by auto shall be considered a lesser-included
offense. L. 1988, c. 75 (codified at N.J.S.A. 2C:11-5d).
The elements of reckless manslaughter in this case are (1)
that defendant was the operator of the motor vehicle that struck
the Ballards' vehicle, (2) that the Ballards' deaths were caused
by the collision, and (3) that defendant caused those deaths by
operating his vehicle recklessly.
The recklessness required for manslaughter is not the same
as that required for death by auto. For reckless manslaughter,
the State must prove beyond a reasonable doubt causative acts of
recklessness that are different in kind from the acts involved
in reckless driving that support a conviction for death by auto.
State v. Jiminez,
257 N.J. Super. 567, 584 (App. Div. 1992).
Those additional acts of recklessness must also contribute to
causing the death of a victim.
Although driving while intoxicated may alone satisfy the
recklessness required by the death by auto statute, State v.
LaBrutto,
114 N.J. 187, 204 (1989), more is required for reckless
manslaughter. When, as here, the State relies on the extent of
drinking as one of "the additional act[s] of death causative
recklessness," that drinking must "be more than casual drinking
and more than mere intoxication, rather, it would have to be
exceptional drinking to a marked extent." State v. Scher,
278 N.J. Super. 249, 269 (App. Div. 1994), certif. denied,
140 N.J. 276 (1995). In other words, a defendant's predriving conduct,
such as drinking, and conduct associated with the driving must be
so extraordinary and extreme as to satisfy the reckless
manslaughter standard. Ibid. That standard is "quantitatively
greater than the recklessness contemplated in a death-by-auto
charge and qualitatively less than the recklessness required to
support an aggravated manslaughter case." Milligan, supra, 104
N.J. at 73 (Clifford, J., dissenting). That is so because "[t]he
practice in our State implicitly recognizes that only a gross
deviation from reasonable care amounts to recklessness" required
in a reckless manslaughter case. State v. Concepcion,
111 N.J. 373, 382 (1988) (Handler, J., concurring).
Although defendant's vehicle collided with the driver's side
of the Ballards' station wagon, defendant has maintained
throughout that the cause of the accident was Mr. Ballard's
failure to obey the stop sign. Based on that factual contention
defendant asserted that Ballard's running the stop sign, rather
than the manner in which defendant operated his vehicle,
proximately caused the accident. That contention raised a
remoteness exculpation defense in terms of the cause of the
accident, impacting the State's burden to prove that defendant
recklessly caused the victims' deaths.
The Code requires the State to establish a causal
relationship between a defendant's conduct and the resulting harm
to a victim. There is a "but for" requirement that is satisfied
if "the result in question would not have occurred" without
defendant's conduct. N.J.S.A. 2C:2-3a(1); State v. Martin,
119 N.J. 2, 11 (1990). The "but for" requirement must be interpreted
in the context of the mental culpability required by the Code for
each offense. N.J.S.A. 2C:2-3a(2).
Regarding the recklessness culpability required for the
manslaughter involved in this case, the Code provides:
When the offense requires that the defendant
recklessly . . . cause a particular result,
the actual result must be within the risk of
which the actor is aware . . . or, if not,
the actual result must involve the same kind
of injury or harm as the probable result and
must not be too remote, accidental in its
occurrence, or dependent on another's
volitional act to have a just bearing on the
actor's liability or on the gravity of his
offense.
N.J.S.A. 2C:2-3c.
Therefore, crucial to the issue whether defendant recklessly
caused the victims' deaths was whether Ballard disobeyed the stop
sign. Defendant contends that but for Ballard violating the
stop-sign law, the collision would not have occurred and that the
collision was so dependent on Ballard's volitional act that the
objectionable testimony of Dr. Speth rendered his causation
defense a nullity. If the killings were "accidental" or
carelessly or negligently caused, a finding of not guilty would
have been required. State v. Reyes,
50 N.J. 454, 464-65 (1967);
State v. Curtis,
195 N.J. Super. 354, 369 (App. Div.), certif.
denied,
99 N.J. 212 (1984).
The prejudicial impact of Dr. Speth's objectionable
testimony must be evaluated in light of the foregoing principles
characterizing the State's burden of proof obligation,
particularly whether defendant consciously disregarded a
substantial and unjustifiable risk of death. Thus, an evaluation
of prejudicial impact requires us to focus on whether Dr. Speth's
testimony exceeded the scope of his expertise.
The New Jersey Rules of Evidence define the qualifications
of persons permitted to give expert opinion testimony and provide
for when such evidence is required. N.J.R.E. 702 provides that
to be qualified as an expert, an individual must possess special
"knowledge, skill, experience, training, or education." Ibid.
Expert testimony is permitted only if it "will assist the trier
of fact to understand the evidence or to determine a fact in
issue." Ibid.
Generally, there are three basic requirements for the
admission of expert testimony: “(1) the intended testimony must
concern a subject matter that is beyond the ken of the average
juror; (2) the field testified to must be at a state of the art
such that an expert's testimony could be sufficiently reliable;
and (3) the witness must have sufficient expertise to offer the
intended testimony.” State v. Kelly,
97 N.J. 178, 208 (1984);
N.J.R.E. 702.
Dr. Speth was qualified only as an expert in forensic
pathology. In that capacity, his testimony should have been
limited to describing the physical properties of the implement
that caused the Ballards' deaths, narrating the physiological
status of the bodies at the time of death, and ruling out the
possibility that the injuries were self-inflicted or sustained as
a result of mere inadvertence. See, e.g., State v. Chew, 150 N.J. 30, 87 (1997)(allowing medical examiner to testify that scratches on victim's face were caused while victim was either restrained or not moving and were not self-inflicted); Gaido v. Weiser, 227 N.J. Super. 175, 188 (App. Div. 1988)(noting that “medical examiners are uniquely situated to draw conclusions as to physiological causes of death”), aff'd, 115 N.J. 310 (1989); People v. Reyes, 879 F.2d 646 (9th Cir. 1989)(finding forensic pathologist qualified to give opinion on position of victim's body at time he was shot); United States v. Williams, 36 M.J. 785 (U.S. Army Ct. of Mil. Rev. 1993)(holding pathologist may testify to time of death and location of bruises); Medlock v. State, 430 S.E.2d 754 (Ga. 1993)(holding trauma to baby's body was not consistent with accidental fall); Boyce v. State, 401 S.E.2d 578 (Ga. Ct. App. 1991)(permitting testimony regarding relative height from which bullet was fired); Kutscheid v. State, 592 N.E.2d 1235 (Ind. 1992)(permitting testimony regarding trajectory of bullet); State v. Hicks, 607 So.2d 937 (La. Ct. App. 1992)(allowing testimony that bruise patterns were consistent with being struck with shoe); State v. Vining, 645 A.2d 20 (Me. 1994)(holding testimony that victim's death was homicide went beyond medical examiner's expertise because there was no physical evidence to prove death was accidental); State v. House, 481 A.2d 1129 (Me. 1984)(permitting testimony that angle of and trauma to bodies of two persons thrown from car can determine who was driving); State v. Vestal, 180 S.E.2d 755 (N.C. 1971)(allowing
testimony regarding lapse of time between victim's last meal and
death); Commonwealth v. Smith,
513 A.2d 1371 (Pa. 1986)(allowing
testimony regarding caliber of bullet used to kill victim);
Commonwealth v. Guess,
416 A.2d 1094 (Pa. Super. Ct.
1979)(allowing testimony regarding location of bullet wounds and
effect of such wounds on internal systems); State v. Nazario,
694 A.2d 666 (R.I. 1997)(allowing testimony regarding distance of gun
from victim's head); State v. Triplett,
421 S.E.2d 511 (W. Va.
1992)(allowing testimony that it was impossible for knife wound
to be accidental). A forensic pathologist's testimony is
therefore restricted to describing the mechanics of death.
In State v. Odom,
116 N.J. 65, 77 (1989), the Court
reaffirmed that "[t]he determination of facts that serve to
establish guilt or innocence is a function reserved exclusively
to the jury. Hence, an expert's testimony that expresses a
direct opinion that a defendant is guilty of the crime charged is
wholly improper." Ibid.
As we previously noted, the jury was required to determine
certain crucial facts before deciding defendant's guilt or
innocence. Those facts were whether Ballard disobeyed the stop
sign and whether defendant was operating his vehicle recklessly
at the time of the collision. The ultimate factual-legal
conclusion was whether the collision was a "vehicular homicide"
or a "vehicular accident." Dr. Speth was qualified only as an
expert in forensic pathology and not qualified as an accident
reconstruction expert. Yet he testified that the deaths were
homicides, defendant was reckless, defendant's recklessness
caused the deaths, and that Sandlier, who testified that Ballard
did not obey the stop sign, was mistaken because she could not
possibly have seen the stop sign from her position.
Although our rules of evidence permit a person not qualified
as an accident reconstructionist to present some lay opinion
evidence, most of the objectionable testimony did not comport
with that rule. N.J.R.E. 701. There are two preconditions to
the admission of such testimony: (1) the testimony must be
"rationally based on the perception of the witness" and (2) the
trial court must be satisfied that it "will assist in
understanding the witness' testimony or in determining a fact in
issue." Ibid.; State v. LaBrutto, supra, 114 N.J. at 197-200
(holding that police officer can testify as lay witness regarding
point of impact based on personal observations at crash site).
First, Dr. Speth was not present at the time of the
accident. Nor did he outline in detail the facts upon which his
opinions that the accident was a homicide and that defendant was
driving recklessly were based. He merely stated that “based on
all the evidence, I reached the conclusion that this was a
homicide.” In response to the inquiry “Doctor, based on the
facts as you saw them and determined them to be, would you
characterize Mr. Jamerson's driving as reckless?,” he answered
“Yes” and continued by explaining that this response was based
upon ”personal observations at the scene and observations of the
crash.”
Second, Dr. Speth's experiences investigating over 40 fatal
car crashes were based upon his statutory duty to “fully
investigate the essential facts concerning the medical causes of
death” in his capacity as a forensic doctor. N.J.S.A. 52:17B-87.
During those investigations, he was engaged to determine the
physiological causes of the victims' deaths, not the causes of
the accident to which he testified in the present case.
We reject the State's contention that because much of the
objectionable testimony of Dr. Speth was introduced during the
cross-examination, defendant invited the error. It was the State
that initially elicited testimony from Dr. Speth that permitted
him to say the crash was a homicide. Defense counsel conducted a
proper cross-examination and had every right to assume that if a
question required an answer beyond Dr. Speth's expertise, Dr.
Speth would have declined to answer based on his lack of
qualifications. Instead, Dr. Speth provided answers that
exceeded his expertise and did not properly inform the jury that
he was testifying as a lay person when he reconstructed the
accident. In any case, as a lay witness, he could not testify
regarding the way defendant operated his vehicle because such
testimony was not rationally based on his perceptions.
Consequently, the Court's statement about an overzealous expert
witness in another case describes Dr. Speth in this case:
An expert witness should distinguish between
what he knows as an expert and what he may
believe as a layman. His role is to
contribute the insight of his specialty. He
is not an advocate; that is the role of
counsel. Nor is he the ultimate trier of the
facts; that is the role of the jury or the
judge, as the case may be. The trier of the
facts may be misled if the expert goes beyond
what he can contribute as an expert.
[In re Hyett,
61 N.J. 518, 531 (1972)].
We are also satisfied that Dr. Speth should not have been permitted to testify that this was a reckless homicide rather than an accidental killing. First, that question was ultimately for the jury to decide. Second, under the evidence in this case, it was an issue on which an expert could not be of assistance to the jury. Here, there were no wounds to analyze. Instead, there were circumstances leading up to the accident that were within the understanding of the average juror. The jury was as competent as Dr. Speth to analyze the facts and determine whether the Ballards' deaths were the result of an accident or of defendant's recklessness. As the dissent in Biro v. Prudential Insurance Co. expressed, permitting Dr. Speth to testify that the crash was a homicide or that defendant's driving was reckless “tends to mislead the jury into thinking that he knows something that they do not know.” 110 N.J. Super. 391, 404 (App. Div.) (Matthews, J., dissenting), rev'd on the dissent, 57 N.J. 204 (1970). What Dr. Speth did know and the jurors did not were the physiological causes of the Ballards' deaths. Based on the evidence in this case, Dr. Speth was in no better position as a forensic pathologist to conclude that the collision was not an accident than the jurors themselves. Therefore, we conclude that
Dr. Speth's testimony that the collision was not accidental was
improperly placed before the jury.
We also agree with defendant that Dr. Speth's comment on the
credibility of Sandlier's testimony that Ballard ran the stop
sign was improper. It is well-settled that an expert may not
testify regarding a witness's credibility. State v. Michaels,
136 N.J. 299, 323 (1994); State v. Abronski,
281 N.J. Super. 390,
403 (App. Div. 1995), aff'd,
145 N.J. 265 (1996); State v. J.Q.,
252 N.J. Super. 11, 39 (App. Div. 1991), aff'd,
130 N.J. 554, 578
(1993); State v. Gunter,
231 N.J. Super. 34, 42 (App. Div.),
certif. denied,
117 N.J. 80 (1989). Experts may not offer such
testimony because “credibility is an issue which is peculiarly
within the jury's ken and with respect to which ordinarily jurors
require no expert assistance.” J.Q., supra, 252 N.J. Super. at
39. Moreover, the jury is charged with making credibility
determinations based on ordinary experiences of life and common
knowledge about human nature, as well as upon observations of the
demeanor and character of the witness. Ibid. Additionally, Dr.
Speth told the jury that the operator of the Ballard vehicle did
not ignore the stop sign; that was ultimate-fact testimony
prohibited by Odom, supra.
Next, we focus on the jury instructions. The State argues that the trial court's instruction to the jury that they could
reject Dr. Speth's testimony was sufficient to cure any prejudice
that may have resulted from the doctor's impermissible
conclusions. We reject that argument.
Odom, supra, directs trial courts to
carefully instruct the jury on the weight to
be accorded to and the assessment of expert
opinion testimony. It should be emphasized
that the determination of ultimate guilt or
innocence is to be made only by the jury.
[116 N.J. at 82.]
The trial court complied with that directive. That instruction, however, was not sufficient to overcome the prejudicial effect of Dr. Speth's statements. By definition, a jury cannot give the “proper” amount of weight to an expert's opinion when they labor under the erroneous assumption that the expert is testifying to an area within his expertise. Furthermore, “'[t]he aura of special reliability and trustworthiness surrounding expert testimony, which ought to caution its use, especially when offered by the prosecution in criminal cases, poses a special risk'” when it involves the question of a defendant's guilt. State v. Odom, 225 N.J. Super. 564, 571 (App. Div. 1988), rev'd on other grounds, 116 N.J. 65 (1989)(quoting United States v. Brown, 776 F.2d 397, 401 n.6 (2d Cir. 1985)(citations omitted)). This special risk arises "'because the jury may infer that the [expert's] opinion about the criminal nature of the defendant's activity is based on knowledge of the defendant beyond the evidence at trial.'” Ibid. In addition, this risk increases
"when the opinion is given by 'the very officers who were in
charge of the investigation.'” Ibid.
Viewing the extent of Dr. Speth's objectionable testimony in
the context of the State's burden of proof, it can fairly be said
that “the record had imprinted upon it a personal opinion which
by its unique expression had a greater impact upon the jury's
verdict than all the evidence proven in the whole trial by both
the prosecution and defense.” State v. Landeros,
20 N.J. 69, 75
(1955).
This is a tragic case. Two elderly people died as a result
of the automobile collision. Nonetheless, the State had the
burden of proving beyond a reasonable doubt that defendant
recklessly caused their deaths. The State's evidence consisted
mainly of defendant crossing double yellow lines to pass a
vehicle turning right, driving with a blood alcohol level of
.186, and not slowing from a lawful fifty miles-per-hour speed as
he approached the intersection where the collision occurred.
Defendant insists that none of this caused the deaths but rather
that Mr. Ballard's failure to stop and yield at the stop sign was
the cause of the accident. Given the contested evidence in the
case, the prejudicial impact of the objectionable testimony of
Dr. Speth cannot be regarded as harmless error.
Finally, the trial court's erroneous reinstruction of the
jury regarding the difference between manslaughter and death by
auto was prejudicial to defendant. The reinstruction informed
the jury that the additional acts of recklessness required for
manslaughter beyond defendant's reckless driving may be satisfied
by "a combination of the recklessness in driving and another one
or more acts of recklessness." Rather than combining the
reckless driving with other acts of recklessness, the jury should
have been told that the additional conduct had to be independent
of the reckless driving. The error was prejudicial because it
not only lessened the State's burden of proof, but it also made
Dr. Speth's conclusion that this was reckless manslaughter more
plausible.
We conclude that the numerous errors committed in the trial
court had the clear capacity to produce an unjust result. State
v. Marrero,
148 N.J. 469, 494-95 (1997); State v. Jordan,
147 N.J. 409, 422 (1997); State v. Macon,
57 N.J. 325, 336 (1971); R.
2:10-2. If the jury was guided improperly either to reject the
defense that Ballard disobeyed the stop-sign law, or to conclude
that defendant recklessly caused the collision, those errors were
"sufficient to raise a reasonable doubt as to whether [they] led
the jury to a result it otherwise might not have reached."
Macon, supra, 57 N.J. at 336.
We reverse both reckless manslaughter convictions and remand
the matter to the Law Division for retrial.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI, and STEIN join in JUSTICE COLEMAN's opinion.
NO. A-39 SEPTEMBER TERM 1997
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CHARLES L. JAMERSON, a/k/a
CHARLES LESTER JAMERSON,
CHARLIE, CHUCK,
Defendant-Appellant.
DECIDED March 25, 1998
Chief Justice Poritz PRESIDING
OPINION BY Justice Coleman
CONCURRING OPINION BY
DISSENTING OPINION BY
Footnote: 1Because of the stop sign, the law required Ballard to bring his vehicle to a complete stop within five feet of a real or imaginary stop line or crosswalk before entering the intersection and then proceed "only after yielding the right of way to all traffic on the intersecting [roadway] which is so close as to constitute an immediate hazard." N.J.S.A. 39:4-144. A motorist facing a stop sign is not only under a duty to stop before entering the intersection, but also is required to make further observation while proceeding through the intersection. Cresse v. Parsekian, 43 N.J. 326, 328 (1964).