Opinion
DOCKET NO. A-3414-13T2
06-27-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ANTONIO F. VARGAS, Defendant-Appellant.
Peter T. Blum, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Blum, of counsel and on the brief). Sevan Biramian, Assistant Prosecutor, argued the cause for respondent (James P. McLain, Atlantic County Prosecutor, attorney; Elliott J. Almanza, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz, Fasciale and Nugent. On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 12-02-0460. Peter T. Blum, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Blum, of counsel and on the brief). Sevan Biramian, Assistant Prosecutor, argued the cause for respondent (James P. McLain, Atlantic County Prosecutor, attorney; Elliott J. Almanza, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Antonio F. Vargas appeals from an August 13, 2013 judgment of conviction, entered following a jury verdict finding him guilty of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1) (count one); second-degree vehicular homicide, N.J.S.A. 2C:11-5 (count two); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count three); third-degree assault by auto, N.J.S.A. 2C:12-1(c)(2) (count four); two counts of fourth-degree assault by auto, N.J.S.A. 2C:12-1(c)(2) (counts five and six); third-degree causing death while driving under suspension, N.J.S.A. 2C:40-22(a) (count seven); and fourth-degree causing serious injury while driving under suspension, N.J.S.A. 2C:40-22(b) (count eight). The charges against defendant were premised on the State's position defendant was racing while intoxicated, resulting in a single car crash, where the passenger was killed and three pedestrians were injured.
On appeal, defendant requests we set aside the verdict and order a new trial because prejudicial trial errors led the jury to an unjust result. Specifically he argues:
POINT I
A NEW TRIAL SHOULD OCCUR BECAUSE LAY OPINION WAS IMPROPERLY ADMITTED AND, IN THE ALTERNATIVE, WAS NOT ACCOMPANIED BY ESSENTIAL JURY INSTRUCTIONS. U.S. CONST. AMEND. XIV; N.J. CONST. ART I, PARA. 1. (partially raised below).
A. The Detective's Lay Opinion that the Decedent Had Been in the Passenger Seat Was Improperly Admitted Because Special Expertise Was Required to Interpret the Confusing Aftermath of the Crash.
B. The Lay Opinion Was Improperly Admitted Because It Was Based Largely On What
The Detective Had Learned From Others During His Investigation, Not On His Own Perception.
C. Even if the Detective's Opinion Was Properly Admitted, the Court Erred in Failing to Instruct the Jury that the Detective, Who Had Been Testifying as an Expert, Was Testifying as a Lay Witness on the Decedent's Original Position. (not raised below).
POINT II
A NEW TRIAL SHOULD OCCUR BECAUSE THE DEFENSE DEPENDED ON MISTAKEN IDENTIFICATION, YET THE COURT FAILED TO GIVE THE JURY ANY INSTRUCTIONS ON EVALUATING IDENTIFICATION TESTIMONY. U.S. CONST. AMEND. XIV; N.J. CONST. ART I, PARA. 1. (not raised below).
POINT III
A NEW TRIAL SHOULD OCCUR BECAUSE THE COURT IMPROPERLY RESPONDED TO A JURY NOTE SEEKING TO CLARIFY THE DIFFERENCE BETWEEN THE OFFENSES BY TELLING THE JURORS THAT THEY COULD NOT HAVE ANY LEGAL EXPLANATIONS BEYOND THE MODEL INSTRUCTIONS. U.S. CONST. AMEND. XIV; N.J. CONST. ART I, PARA. 1. (partially raised below).
POINT IV
A NEW SENTENCING SHOULD OCCUR BECAUSE THE COURT IMPROPERLY DOUBLE-COUNTED THE DEATH OF THE VICTIM AND RELIED ON AGGRAVATING FACTOR TWO - THE GRAVITY OF THE HARM TO THE VICTIM - IN IMPOSING A MANSLAUGHTER SENTENCE. (not raised below).
Following our review, we affirm.
I.
These facts are found in the trial record. Defendant acquired a 1997 Honda Civic two-door hatchback, registered to his mother. The vehicle was modified for performance, including installation of an Acura engine, turbocharger, and high performance tires, which allowed the car to reach 100 miles per hour in less than ten seconds.
Shortly after 8 p.m. on January 5, 2011, defendant and another racecar-enthusiast met and were drinking at Gregory's Bar in Somers Point. Among the various friends and acquaintances mingling with defendant was Kevin Botta, who repeatedly asked defendant to "take [the Honda] for a ride."
Shortly before 1 a.m. on January 6, 2011, defendant and Botta left the bar and entered the Honda; defendant was driving. The pair stopped at a convenience store, where Botta purchased cigarettes. A customer and the store clerk remembered the pair and surveillance video captured their return to the Honda at 12:50:20 a.m. Defendant entered the vehicle on the driver's side and Botta on the passenger's.
Leonard Foglio, a store employee, recognized Botta because he was a regular customer. Joseph Mooney, who waited in line behind the pair in the convenience store, also remembered Botta because of his physique, stating he "looked like one of those ultimate fighter type guys."
Mooney left the store approximately one minute after defendant and Botta, then drove south on Shore Road toward the hospital, where he worked. After parking his car in the hospital parking lot, Mooney saw the Honda stopped at the traffic signal located at Shore Road and New York Avenue. Mooney, who was approximately forty-four feet away, saw the driver look at him. The next day Mooney read an internet article about a crash with photographs of Botta and defendant. He immediately recognized Botta as the man he saw in the convenience store; it thereafter occurred to him that the other picture, of defendant, looked like the driver he saw. Pressed on cross-examination, Mooney could not provide details of the driver's appearance, but on redirect he was certain the man driving the Honda was not "the ultimate fighter guy."
When the traffic light changed, Mooney observed the Honda as it sped south on Shore Road toward Gregory's, describing for the jury the winding, increasingly loud sound of the car's engine. He specifically testified no one exited the Honda while the car was stopped at the light.
John McGowan was seated outside the hospital exit at the intersection of Shore Road and New York Avenue. He saw the Honda, then heard a noise "like a jet engine[] or airplane . . . taking off." He watched the Honda accelerate and "really, really pick up a lot of speed." Another driver, Nicholas Ballias, was leaving Gregory's traveling south on Shore Road. Familiar with cars modified for racing, Ballias saw the Honda as it passed him. He estimated its rate of speed was "well over [one] hundred miles an hour."
Within 100 yards of Gregory's, the Honda's driver lost control. The Honda spun counterclockwise, crossed into the opposing lane of traffic, hit the curb, dislodged a fire hydrant and knocked down a telephone pole, which tore electric wires and caused a neighborhood blackout. The impact with the fire hydrant and utility pole were on the Honda's passenger side. The vehicle continued to slide and its driver's side swiped a parked pick-up truck. The Honda finally came to rest when it hit Gregory's head-on. Also, surveillance video footage confirmed defendant drove from the convenience store's parking lot at 12:54:32 a.m. and the video stopped at 12:55:26 a.m. once the electrical wires were affected -- a total of fifty-five seconds.
Captain Michael C. Sweeney of the Somers Point Police Department, who also was a volunteer Assistant Fire Chief for Somers Point Fire Company Number Two, arrived at the scene. He noted emergency personnel, police and firemen had arrived. He directed his aid toward defendant, who was alive. Initially, defendant could not be removed from the Honda because he was pinned in the vehicle. Captain Sweeney observed defendant was "leaning over, face down over the [now compressed passenger] side of the car" atop Botta's legs; "his arms were out" of the Honda and from the armpits down he was in the vehicle. "From the chest down he was twisted. His body came across . . . and his feet were down in the driver's side foot well . . . [requiring] more work . . . by the Fire Department in order to free his lower extremities, his legs, from underneath what would be the steering column and dashboard on this side of the car." Captain Sweeney stated he saw "the dashboard and the steering wheel compressing on his [defendant's] mid-section down." On cross-examination Captain Sweeney was more specific, stating defendant's "mid-section . . . groin area down is what is twisted and still in the driver's side of the car and that is what had to be freed in order to remove" him from the vehicle.
Captain Sweeney also described Botta as having "rolled left" and become positioned behind the driver's seat. Botta's body was not moved during the extraction of defendant. When asked, Captain Sweeney responded negatively to whether he had an understanding as to which person was the Honda's driver.
Simultaneously, Michael R. Sweeney, Fire Chief of the Somers Point Volunteer Fire Department and no relation to Captain Sweeney, took command and directed the extrication of the occupants of the vehicle by cutting the Honda's roof. From outside the vehicle Chief Sweeney observed "one victim was partially ejected out of the driver's side and one person was partially ejected out the passenger side." He stated Botta's head was out the rear window on the driver's side and defendant's was "over towards the passenger side of the vehicle" and explained defendant's upper body lay atop Botta's legs with "[h]is waist and stuff . . . and his lower legs and everything would be in the driver's compartment foot well," as the compressed and collapsed dashboard had him "trapped to the driver's side of the car."
Chief Sweeney noted neither defendant nor Botta wore seatbelts. He too stated defendant's legs -- from his mid-shin to his feet -- were trapped under the steering column, with the gas and brake pedals in "very close proximity" to his feet, in the "driver foot well area."
As a result of the crash, three of Gregory's patrons suffered injuries. Botta was dead. The autopsy revealed Botta suffered critical injuries to the right side of his head and body, suggesting a "severe impact" to the right side during the crash. Defendant suffered a closed head brain injury that caused amnesia, along with respiratory failure, and multiple fractures and lacerations on the right side of his body. Defendant was immediately removed from the car and taken to a ballfield where he was flown by a medevac helicopter to an Atlantic City medical facility.
Defendant's blood alcohol concentration at 2:17 a.m. was .126 percent. Robert Pandina, MD, the State's toxicology expert, extrapolating from samples taken at 3:10 a.m., opined defendant's blood alcohol concentration was at least .10 percent at the time of the crash and could have been as high as .14 percent. Dr. Pandina's opinion considered defendant's reported weight and the fact he was drinking light beer for three and one-half to four hours, using a fifteen percent metabolic rate.
The State also presented testimony of Dr. Sherri Kacinko, a blood toxicology expert, who, using head space gas chromatography, supervised a blood alcohol analysis of defendant's blood and reported the alcohol concentration was .07 percent.
When he was discharged from the hospital, defendant was charged in an eight count indictment. At trial, his defense challenged the State's assertion he was driving when the Honda crashed. In support of his defense, defendant emphasized the variations in eyewitness accounts, which described the positions of the two crisscrossed bodies inside the Honda when it came to rest. The defense presented testimony from Michele Irizzary, a first responder emergency medical technician, who described her on-scene observations. Irizzary was working at the Hammonton Rescue Squad building on Shore Road when she heard a car speeding past the building headed southbound. Shortly thereafter, her pager notified her to respond to an accident at Gregory's Bar. When she arrived, paramedics had arrived and police were on the scene along with ten to fifteen bystanders.
Irizzary attempted to take defendant's pulse. She described him as lying face down, over the passenger side from the waist up, with his head hanging from the window. She noted his left "foot was between the driver and passenger side, right in the middle, underneath the dash," with his right leg "pulled back a little." At trial, Irizzary was asked: "based upon your training and experience as an EMT for about eight years . . . [h]aving to be [sic] at the number of motor vehicle crashes you went to, having made the observations you made, do you have an opinion as to who was the passenger in that vehicle?" She responded affirmatively and stated defendant was the passenger.
Irizzary admitted she did not record her observation of the placement of defendant's feet or her opinion he was a passenger in any of her reports or the statement she gave to defendant's investigator prior to trial. Under cross-examination, Irizzary also acknowledged her report did not label either occupant as "driver" or "passenger," which she asserted was done only when "the driver was restrained in the driver seat." Moreover, Irizzary's report made no mention of defendant's feet. Instead, it stated defendant was "partially ejected from the vehicle, patient entrapped by his legs, upper torso, partially ejected, patient lying partially out of car on passenger side." Her report also stated "driver injured" and listed "none" under "drugs/alcohol." Finally, she agreed she had limited training in accident reconstruction and no training in accident reconstruction computerized programs, kinematics, speed calculation, using laser equipment to diagram a scene, or forensic pathology.
Defendant also presented a private investigator who interviewed Mooney. The investigator photographed cars stopped at the designated intersection, purporting to depict Mooney's angle of sight.
Finally, defendant's expert, Leo W. Burns, MD, conducted a record review and identified the nature and location of injuries defendant suffered in the accident. Dr. Burns noted "[t]he vast majority of those injuries were on the right side of his body[,]" concluding defendant suffered blunt force trauma to the right side of his body, which could result from a car accident. He also identified inconsistencies he found in the reports recording defendant's medical treatment regarding whether he was identified as the driver or the passenger of the Honda. Dr. Burns could not discern whether defendant was restrained by a seat belt. On cross-examination, he admitted that although he reviewed reports recording Botta's injuries, he was not requested to compare them to those suffered by defendant.
Following the nine-day trial, the jury convicted defendant on all counts. Defendant moved for a new trial, which was denied. The trial judge sentenced defendant to an aggregate term of incarceration of twenty-nine years, with a twenty-two year parole ineligibility period. This appeal ensued.
II.
Defendant seeks a new trial, arguing the judge erroneously admitted testimony, failed to properly instruct the jury regarding the limited use of testimony, and improperly responded to the jury's questions. We address the issues presented seriatim.
A.
Defendant's first challenge is directed to the testimony of Detective Sergeant Kevin Hincks, who testified as the State's expert in accident and crash reconstruction. Because the detective was not qualified to address occupant kinematics, defendant argues the judge erred in introducing Detective Hincks' lay opinion Botta was in the passenger seat of the Honda when it crashed. Further, defendant insists the error was compounded when no instruction was given to the jury identifying the use of the non-expert opinion.
"Accident reconstructionists commonly testify about . . . vehicle mass, the direction of skid marks, vehicle dimensions, dents, paint transfers, road surface textures, and physics principles such as inertia, velocity, coefficients of friction, and the operating characteristics of vehicles." State v. Locascio, 425 N.J. Super. 474, 491 (App. Div.), certif. denied, 212 N.J. 459 (2012). Moreover, biomechanics is "[t]he science concerned with the action of forces, internal or external, on the living body." Ibid. (alteration in original) (quoting Stedman's Medical Dictionary 205 (27th ed. 2000)).
Prior to reviewing this issue, it is necessary to detail Detective Hincks' testimony. We will concentrate on Detective Hincks' statements regarding the occupants of the vehicle, without describing the accident reconstruction.
Detective Hincks arrived on-scene approximately forty-five minutes after the crash; Botta's body remained in the wreckage, but defendant had been attended to by paramedics and taken to the hospital. At trial, Detective Hincks identified photographs taken of the wreckage, depicting the rescue work to the vehicle and the position of Botta's body.
When describing a picture of Botta prior to removal of his body, Detective Hincks stated: "This is Mr. Botta right here. Again, this is the driver's seat and Mr. Botta, you can't see it, is occupying the passenger seat of the car . . . . " Asked why he ordered a blood sample obtained from defendant, Detective Hincks stated:
Once I get to the scene and I was able to pull the tarp back, it was clear to me who the driver and passenger were in the vehicle. I believe the driver had already been removed from the vehicle and since Mr. Botta had been pronounced dead . . . we automatically, through an autopsy, get toxicology results from him. So another important fact would be for the other occupant in the vehicle, who we believed to be the driver, to get a blood draw from him to rule out the possibility of any narcotics or alcohol . . . in the system at the time of the crash.
Detective Hincks' other testimony touching on the position of the vehicle's occupants, included:
[PROSECUTOR]: [I]f you found [defendant]'s DNA on the passenger air bag, would that have any significance . . . in determining who is the driver?Detective Hincks also noted the steering wheel had been cut and removed prior to his arrival, most likely in the life saving efforts to remove defendant from the vehicle. No objection resulted from any of this testimony.
[DETECTIVE HINCKS]: No, because from what Somers Point police told me [defendant] was from the driver's side of the vehicle over into the passenger side of the vehicle.
Detective Hincks additionally related defendant's arrest and his voluntary statement "I wasn't driving because my mother would kill me." He identified numerous photographs of the Honda and the roadway, explaining damage sustained to the Honda and the sequence of its path of travel as it impacted the fire hydrant, telephone pole, parked truck and the Gregory's building.
In concluding his direct testimony, the State posed this inquiry:
Q. Did you come to a conclusion in this case as to who was the driver and who was the passenger?
A. Yes, we did.
Q. And what did you rely upon to reach that conclusion?
A. Evidence at the scene. Photographs that were taken. Medical reports from [defendant]. The autopsy and toxicology report for Mr. Botta. The toxicology report for [defendant]. Witness statements. The video from the [convenience store]. I believe that's everything.
. . . .
[DEFENSE COUNSEL]: Objection. Can we approach?
After a lengthy side-bar discussion, the judge essentially sustained the objection. He determined Detective Hincks had no medical expertise and could not correlate injuries to the damage on the Honda. The judge determined lack of expertise in kinematics limited Detective Hincks' testimony to his observation of the final resting place of Botta's body and visible external injuries. The judge expressly barred the witness from testifying as to any movement within the vehicle before or during the crash, stating: "I don't think he can draw a conclusion as to where the body is other than what he saw after the accident." The State resumed questioning as follows:
Q. [Detective] Hincks, based upon your training and experience, due to the substantial damage to the right passenger side of the vehicle --
A. Yes.
Q. — was the initial impact damage caused to the right passenger side of the vehicle?
A. Yes.
Q. When you first observed Mr. Botta in the vehicle, did you note injuries to him externally . . . visibly as you're looking at him?
A. Yes.
Q. What did you observe?
A. Most predominately w[ere] the injuries to the right side of his face.
Q. Could you describe that please?
A. It was covered in blood. There appeared to be fracture, an open wound . . . about the skull level. There was definitely deformity. Looked like some of the bones were crushed inward because it's a flap of skin on the right side.
Q. Based on your observation of Mr. Botta at the scene, did you conclude whether he was the driver or the passenger?
A. Yes.
Q. And what did you conclude?
A. He was the passenger.
Defense counsel did not interpose or object to this testimony. Prior to commencing cross-examination, defendant sought a limiting instruction regarding the use of defendant's driver's abstract, and specifically that they are not evidential as to who operated the Honda or that defendant drove recklessly on the date of the crash. The judge agreed to do so. Defense counsel did not request, nor did the court provide, a limiting instruction to the jury explaining Detective Hincks was not offering an opinion as an expert.
On cross-examination, Detective Hincks acknowledged he did not speak to emergency personnel as they had left the scene and admitted he did not investigate a notation in a report by Mid-Atlantic Medi-vac ARMC, prepared by a first responder, discussing defendant's condition and stating "this patient was front passenger in a two[-]vehicle MVC. MVC specifics include driver was deceased at the scene." Redirect then highlighted other errors in the statement, including designation of a multi- vehicle accident, with the patient taken to Shore Memorial Hospital.
We first examine defendant's challenge to Detective Hincks' testimony that Botta was the passenger. Defendant's argument suggests because Detective Hincks was testifying as an expert he either (1) could not offer lay opinions or (2) absent instructions, the jury could be confused that lay testimony was expert testimony. After reviewing the totality of the trial evidence, we cannot agree the error was one "prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." State v. Burns, 192 N.J. 312, 341 (2007) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)). Therefore, any error was harmless. See R. 2:10-2 (stating the plain error standard).
Lay witness testimony, permitted by N.J.R.E. 701, "can only be admitted if it falls within the narrow bounds of testimony that is based on the perception of the witness and that will assist the jury in performing its function." State v. McLean, 205 N.J. 438, 456 (2011). Certainly, lay witness testimony "may be admitted if it (a) is rationally based on the perception of the witness and (b) will assist in understanding the witness' testimony or in determining a fact in issue." N.J.R.E. 701. Also, lay testimony may include opinions where no scientific analysis is required. See State v. Johnson, 120 N.J. 263, 294-95 (1990) (permitting police detective to testify as lay witness about footprint identification); State v. LaBrutto, 114 N.J. 187, 199-201 (1989) (allowing police officer's lay testimony regarding point of impact of car collision); see also McLean, supra, 205 N.J. at 457-58 (listing various authorities regarding the scope of permissible lay opinion testimony).
We reject defendant's suggestion Detective Hincks was limited to provide solely expert testimony. Our Supreme Court has permitted the same individual, who "qualified as an expert in one field to offer an opinion on a subject outside of that field of expertise as a lay opinion." Id. at 458 (citing Johnson, supra, 120 N.J. at 293-95). The Court concluded "the lay opinion was one which required no expert qualifications, making the conceded field of expertise irrelevant." Ibid.
Importantly, the judge sustained the defense objection limiting Detective Hincks' expert opinion to accident reconstruction, prohibiting his opinions on the movement of the occupants in the vehicle during the various impacts as the accident unfolded. This did not prohibit him from relating his observations. Detective Hincks, as well as other State and defense witnesses, testified as to what they saw when viewing the two men in the wreckage.
Interestingly, defendant's challenge focuses only on Detective Hincks' final statement, not his initial comments, which essentially related the same facts as the other fact witnesses, without objection. The State's last inquiry was specifically limited by the phrase: "[b]ased on your observation." Also, Detective Hincks explained his opinion was based on perceptions, not expertise. No additional objection arose following these questions. Further, although defendant requested a limiting instruction on the use of the documentary evidence prior to commencing cross-examination, he never requested an instruction directed toward Detective Hincks' final statement.
In support of his argument, defendant relies on State v. Locascio, where we held a medical examiner who was an expert in pathology, could not testify as to who had been the driver and who had been the passenger after an accident without required special expertise in accident reconstruction or biomechanics. Locascio, supra, 425 N.J. Super. at 491-92. Defendant narrowly interprets this holding to mean that to testify to the location of the passenger and driver always requires special expertise in occupant kinematics. This overarching assertion is an over simplification of our holding.
In Locascio, the two vehicle occupants were thrown from the car following the crash. Id. at 478. One was thrown some fifteen to twenty-five feet out of the car, onto a pile of rocks, and died. Ibid. Defendant was found outside the car on the passenger side. Ibid. In our opinion, we considered the propriety of the medical examiner, who permissibly testified "about the physical forces that caused the [decedent]'s fatal injuries" and also opined on who was driving the car. Id. at 477. Because the pathologist was not an expert in biomechanics or accident reconstruction, we reversed and remanded for a new trial. Id. at 492, 496. We concluded "it was improper for him to render opinions about the probable movements of the occupants within the car as it decelerated and crashed, including an analysis of how the passenger's body allegedly 'cushioned' the driver's body during the accident." Id. at 477-78.
Contrary to defendant's assertions, Locascio did not mandate that testimony regarding the positions of occupants in a car be provided by an expert in occupant kinematics. In fact, we held it would have been "perfectly acceptable for [the pathologist] to render opinions that [an occupant's] skull was crushed by the tree," and "[f]rom that conclusion, he could also render an opinion — without getting into the biomechanical forces within an automobile — as to where [that occupant] was sitting in the car when he suffered that injury." Id. at 492-94.
Here, unlike Locascio, both defendant and Botta remained in the vehicle following the crash, making the question of whether by observation one could tell who was driving was not necessarily one requiring expert biomechanical opinion. Several witnesses testified as to their view of the bodies in the wreckage, including defendant's witness EMT Irizzary, who offered her opinion on the very issue.
During oral argument before us, defendant candidly acknowledged if Detective Hincks' lay opinion is inadmissible then Irizzary's opinion would also be inadmissible. This would eliminate the only direct evidence supporting defendant's defense.
We recognize defendant's theory of the case challenged the State's position he was the driver. This does not alter our analysis. Generally, "[t]estimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact." N.J.R.E. 704; see also State v. Mujahid, 252 N.J. Super. 100, 115 (App. Div. 1991) (permitting the State to present eyewitness testimony that the defendant set the fire in an arson case), certif. denied, 127 N.J. 561 (1992).
Detective Hincks began his testimony expressing his observational opinion, stating "it was clear to me who the driver and passenger were in the vehicle. I believe the driver had already been removed from the vehicle . . . ." His final statement did not vary from this view. His response was prefaced by the explanation he was to offer "his observations," which he stated included the damage to the Honda, Botta's visible injuries, and the manner Botta remained pinned in the vehicle, which led him to believe "the driver had already been removed" when he arrived at the scene and "Botta was the passenger."
We reject as lacking merit the arguments stating Detective Hincks' opinion was based on hearsay and the opinion was one directly asserting defendant's guilt. R. 2:11-3(e)(2). --------
Our conclusion on this issue is further guided by the understanding that when
determining whether defendant has demonstrated that the errors here had "'a clear capacity to bring about an unjust result,'" we assess "'the overall strength of the State's case.'" State v. Nero, 195 N.J. 397, 407 (2008) (quoting State v. Chapland, 187 N.J. 275, 288-89 (2006)); see also State v. Sowell, 213 N.J. 89, 107-08 (2013) (affirming conviction given strength of evidence against defendant despite admission of improper expert testimony).Reviewing the record as a whole, we cannot conclude the introduction of Detective Hincks' observational opinion was harmful error.
[State v. Weston, 222 N.J. 277, 295 (2015).]
B.
In a related argument, defendant claims "if [Detective] Hincks' opinion on Botta's position was properly admitted, the court failed in its obligation to tell the jury [he] was testifying as a lay witness." Also, he argues "the court failed to give the jury any instructions on evaluating identification testimony." These issues are raised for the first time on appeal as defendant failed to object to an omitted limiting instruction. We must evaluate the arguments under the plain-error rule set forth in Rule 2:10-2.
Our review requires a "fact-specific inquiry" to determine whether prejudice resulted from the failure to give a sufficiently limiting instruction. State v. G.S., 145 N.J. 460, 473 (1996); see also State v. Singleton, 211 N.J. 157, 182 (2012) ("[T]here is a presumption that the charge was not error and was unlikely to prejudice the defendant's case."). As we have stated, "[t]he strength of the evidence against a defendant . . . is a factor to be considered in determining prejudice to a defendant." State v. Marrero, 148 N.J. 469, 497 (1997).
Here, the direct and circumstantial evidence included: the convenience store video and eyewitness testimony showing defendant entered the driver's side of the Honda as it headed toward Gregory's; Mooney and another affirmatively stating the Honda's occupants did not switch seats or exit the vehicle while stopped at the light immediately prior to the crash; the elapsed time of a mere fifty-five seconds from defendant exiting the convenience store lot to the crash; Mooney seeing the driver, albeit from a distance, and consistently stating it was not Botta, whom he recognized from the convenience store encounter; the Captain and Chief Sweeney both offering eyewitness testimony describing how defendant's legs were pinned toward the driver's side of the vehicle; and testimony detailing the significant injuries suffered to Botta's right side, resulting in his death along with injuries defendant suffered on his right side. In light of this evidence, we do not agree the jury was misled by Detective Hincks' statement based on his own observation that Botta was the passenger.
The jury was told of Detective Hincks' expertise in accident reconstruction. He spent much of his time explaining how he determined the order and nature of the series of impacts to the Honda from the stop light by the hospital to its final position crashing head-on into the front of Gregory's Bar. As we noted above, Detective Hincks began his testimony by explaining what he observed upon arriving on the scene. This included his view the driver had been removed. The questions posed at the conclusion of his accident reconstruction remarks returned to a recitation of his observation as the basis for his view Botta was the passenger.
Importantly, a lengthy discussion occurred prior to Detective Hincks' final remarks. Yet, defendant did not request a limiting instruction during trial. While we agree precision in jury instructions is always preferable and had defendant requested more differentiated charges, the judge would most likely have accommodated that request. However, viewing the entire trial record, including the judge's instructions to the jury to make factual findings considering the credibility of each witness, we cannot conclude the court's failure to sua sponte provide an instruction differentiating fact and lay testimony rises to the level of plain error. See State v. R.K., 220 N.J. 444, 456 (2015) ("When a defendant fails to object to an erroneous or omitted limiting instruction, . . . . the error will be disregarded unless a reasonable doubt has been raised whether the jury came to a result that it otherwise might not have reached.").
C.
Defendant also asserts error resulted in the omission of a specific jury instruction regarding the identification evidence offered by Mooney. Defendant did not object to the final jury instructions or seek an instruction related to the identification evidence. On appeal, he asserts the absence of a charge explaining how the jury must assess the reliability of the identification evidence was plain error. See State v. Henderson, 208 N.J. 208, 231-37 (2011) (discussing the reliability of eyewitness identification evidence). Guided by the standards governing review of this issue, we are convinced defendant's conviction did not result because of Mooney's alleged mistaken identity.
Whether the failure to provide a jury instruction regarding an identification is "plain error depends on the strength and quality of the State's corroborative evidence rather than on whether defendant's misidentification argument is convincing." State v. Cotto, 182 N.J. 316, 326 (2005). Consideration of the specific facts on this issue in light of the overall trial evidence becomes important. The failure to provide a jury instruction regarding identity is not error when there "exists substantial corroborating evidence, where the identification of the witness is positive, certain and consistent, or where defense counsel is able to attack the credibility of identification testimony through cross-examination and closing argument." State v. Salaam, 22 5 N.J. Super. 66, 71 (App. Div.) (citations omitted), certif. denied, 111 N.J. 609 (1988).
On direct, Mooney related his encounter with Botta and another in the convenience store. He also identified the surveillance video, and his observations of the Honda stopped at the light in front of the hospital prior to the crash. Mooney explained, the day after the crash he read an internet article, which included photographs of the vehicle's occupants. Mooney "recognized the one guy from the [convenience store]," Botta, whom he noticed because of his size, and because he reached in front of him to grab a package of matches. He admitted he did not see defendant in the store. At trial, Mooney identified pictures of defendant and Botta as those he saw on the internet. This testimony, elicited on direct, followed:
Q.: What is it that clicked in your head?On cross-examination, Mooney stated the Honda driver did not look like the "ultimate fighter guy" he saw in the convenience store and he "never" thought the driver who looked at him was Botta.
A.: I just recognized him. He looked like the guy that looked up at me when the car was stopped.
Q.: Now, do you recognize him based upon looking at the picture or did you recognize him because of what you read in the newspaper article?
A.: No, I recognized the picture.
Defendant's claim of a Henderson violation is not persuasive. The Court's opinion in Henderson focused on eliminating suggestibility in out-of-court identifications, particularly cross-racial identifications, as conducted by police when isolating a suspect. Henderson, supra, 208 N.J. at 251-53. The Court also provided the foundation for jury instructions to evaluate such identification and minimize errors. Id. at 298-99.
In this matter, defendant did not claim misidentification as his defense. He was in the vehicle when it crashed, therefore his identity was known. The nuanced issue raised by the defense was whether Mooney recognized defendant as the driver when he saw defendant's news photograph. Mooney's testimony regarding the Honda's driver was limited. Further, it predominately related to Botta not being the man Mooney saw at the wheel. In this context, the evidence recognizing defendant after seeing his photograph online was less compelling in affirming defendant's identification.
The State offered significant corroborative circumstantial evidence of defendant's identity as the individual driving the Honda when it crashed, disproving defendant's claim the men switched seats prior to Mooney's observations. This includes video evidence and eyewitnesses squarely placing defendant behind the wheel at the convenience store and uncontroverted testimony from Mooney and another no one exited the Honda when it stopped at New York Avenue. The time elapsed between the Honda's departure from the store to the crash was unrefuted. Several witnesses involved in extracting him from the wreckage observed the manner in which defendant's legs were pinned in or near the driver's side foot well. The jury also heard testimony regarding the extent of damage resulting from successive right-side impacts between the Honda, the fire hydrant and the telephone pole, as well as the specifics of injuries suffered by the two men.
Moreover, the jury was presented with evidence through defense witnesses and detailed cross-examination. Most particularly, defendant attacked Mooney's brief view and oblique angle, he presented Irizzary's opinion after she viewed the bodies, and Dr. Burns discussed how defendant suffered blunt force trauma to his right side.
We also have considered the jury charge, read as a whole. The judge emphasized the jury's responsibility to scrutinize the evidence and to determine the credibility of each witness as they alone must discern the facts. The judge also stressed the State's burden to prove every element of each offense beyond a reasonable doubt. The jury understood it must assess all the evidence presented to determine, essentially, whether defendant was driving the Honda and whether his conduct satisfied the elements of the charged offenses.
Consequently, in light of: the limited nature of Mooney's testimony and the depth of his cross-examination; the State's other evidence pointing to defendant as the driver and defendant's evidence refuting that fact; and that defendant did not seek an identification charge, we conclude the judge's failure to sua sponte include a detailed identification charge was not plain error. See Salaam, supra, 225 N.J. Super. at 71-72. "Even if we assume some small error in the portion of the charge to which defendant objects, we would not reverse under the plain-error standard because the charge as a whole thoroughly explained the law and was not clearly capable of producing an unjust result." State v. Robinson, 165 N.J. 32, 47 (2000).
D.
Next, defendant asserts the judge erroneously responded to the jury's question, thereby denying him a fair trial. During deliberations, the jury sent a note requesting "[i]n layman's terms the extreme indifference to human life, probability versus possibility" of death as it related to the charges of aggravated manslaughter and aggravated assault. In this regard, the ultimate question for the jury was whether Botta's death was committed under circumstances involving a mere possibility of death or did the circumstances involve a probability of death. The judge responded this way:
Unfortunately, I am not able to do that. What you must rely upon is what I have given you orally and what I have given you in writing as to the definitions of extreme indifference to human life and the probability as oppose[d] to possibility. You are to use your own intelligence, common sense, life experiences in addition to everything that you've heard in evidence, the documents in evidence and what you believe happened on the day in question.
So . . . I apologize and thank you for your patience, but I cannot answer your question any further. Can't give you my interpretation of it. Can only give you the jury charges, which have been approved by our Supreme Court, and that's what you have[.]
Outside the presence of the jury, the court discussed the issue further, inviting counsel to attempt to agree on a definition for him to consider, stating:
Well, it's not that I'm not interested. . . . My feeling is other than the standard charges, I think I would be exceeding my authority if I started to put my own definition, spin, twist, whatever you may want to call it, on the difference between probability and possibility. Quite frankly, those are fairly common terms and I'm kind of surprised that the jury would ask that question.Defendant argues the judge's comment to the jury's question was non-responsive.
When a question is posed by the jury, the trial judge is required to answer the question "clearly and accurately and in a manner designed to clear its confusion, which ordinarily requires explanation beyond rereading the original charge." Pressler & Verniero, Current N.J. Court Rules, cmt. 7 on R. 1:8-7 (2016). As a general rule, "[w]hen a jury requests clarification, the trial judge is obligated to clear the confusion." State v. Conway, 193 N.J. Super. 133, 157 (App. Div.), certif. denied, 9 7 N.J. 650 (1984). When reviewing a claim that a trial judge erred in his or her response, we must consider "whether that 'error undermines our confidence that the deliberative process produced a just result and the conviction must be reversed.'" State v. Lykes, 192 N.J. 519, 537 (2007) (quoting State v. Parsons, 270 N.J. Super. 213, 224-25 (App. Div. 1994)). Moreover, we held that when "a question is direct and simple to answer[,]" such as when "the jurors ask to be reminded of a definition or of one or more elements of a crime, the judge may simply repeat the appropriate portion of the instructions." Parsons, supra, 270 N.J. Super. at 221.
The initial jury charge exactly tracked the model jury, charges. The judge instructed:
Another element that the State must prove beyond a reasonable doubt is that defendant acted under circumstances manifesting extreme indifference to human life. The phrase "under circumstances manifesting extreme indifference to human life" does not focus on defendant's state of mind, but rather on the circumstances under which you find he acted. If, in light of all of the evidence, you find that the [d]efendant's conduct resulted in a probability as oppose[d] to a mere possibility of death, then you must find that he acted under circumstances manifesting extreme indifference to human life. On the other hand, if you find that his conduct resulted in only a possibility of death, then you must acquit him of aggravated manslaughter . . . .See Model Jury Charge (Criminal), "Murder and Aggravated/Reckless Manslaughter" (2004).
The written charge was given to the jury for its use. See R. 1:8-8(b)(2). There is no challenge to the accuracy of the charge. See State v. Bunch, 180 N.J. 534, 541-42 (2004) ("Because proper jury instructions are essential to a fair trial, 'erroneous instructions on material points are presumed to' possess the capacity to unfairly prejudice the defendant." (quoting State v. Nelson, 173 N.J. 417, 446 (2002))). Therefore, the jury instructions issued were not flawed, ambiguous or misleading. State v. R.B., 183 N.J. 308, 324 (2005). Moreover, the given instructions did not cause the jury to be "misinformed as to the controlling law." Ibid. (quoting State v. Hipplewith, 33 N.J. 300, 317 (1960)).
Instead, defendant asserts when the jurors posed their question, the judge should have done more. Perhaps the judge could have reread the provision of the accurately given charge, which properly focused the distinction between probability and possibility, rather than simply advising the jury to use its common sense and refer to the written charge he had given them. However, the judge recognized an attempt to divine an acceptable distinction between probable and possible or to give examples that may have been confusing or inapposite might have caused prejudice. See State v. Jordan, 147 N.J. 409, 422 (1997) ("Erroneous instructions on matters or issues that are material to the jury's deliberation are presumed to be reversible error in criminal prosecutions."). We cannot conclude the decision not to supplement the instructions already given to the jury, was wrong as a matter of law or was clearly capable of producing an unjust result. Lykes, supra, 192 N.J. at 537.
III.
Defendant also maintains the sentence imposed for manslaughter was excessive. He argues "the court improperly double-counted the death of the victim and relied on aggravating factor two — the gravity of the harm to the victim — in imposing a manslaughter sentence."
Defendant correctly argues "elements of a crime for which a defendant is being sentenced should not be considered as aggravating circumstances in determining that sentence." State v. Kromphold, 162 N.J. 345, 353 (2000) (citing State v. Yarbough, 100 N.J. 627, 633 (1985)); see also State v. Pineda, 119 N.J. 621, 627-28 (1990) (holding that counting victim's death as aggravating factor in sentencing for death by auto conviction is impermissible); State v. Jarbath, 114 N.J. 394, 404 (1989) (finding error where sentencing judge counted victim's death as aggravating factor in sentence for second-degree manslaughter conviction).
After merger, the judge imposed a custodial sentence of eighteen years, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the aggravated manslaughter conviction. In determining the length of the sentence, the judge clearly and convincingly found the applicable aggravating factors outweighed the single mitigating factor. The judge found these aggravating factors: two (gravity and seriousness of harm inflicted on the victim), three (risk of committing another offense) and nine (need for deterrence). N.J.S.A. 2C:44-1(a)(2), (3), (9). In applying aggravating factor two, the judge stated:
The court clearly and convincingly finds that aggravating factor [two] applies due to the gravity and seriousness of harm inflicted on the victim. This victim was particularly vulnerable because he was a passenger in a car over which he had no control. Therefore, this court gives moderate weight to aggravating factor [two].The judge also found mitigating factor seven applied, as defendant had no history of delinquency or criminal conduct, N.J.S.A. 2C:44-1(b)(7), although he had several significant motor vehicle violations.
Consecutive sentences of eight years, subject to NERA, for the aggravated assault of one bystander, and eighteen months for each of the two convictions for assault by auto affecting the other two bystanders were imposed after the judge, who concluded the circumstances of the crimes, against separate victims, were suitable for the imposition of consecutive sentences. See State v. Carey, 168 N.J. 413, 428 (2001) (noting crimes involving multiple deaths or victims who have sustained serious bodily injuries represent especially suitable circumstances for the imposition of consecutive sentences). Thus, all sentences were ordered to be served consecutively to each other.
"Appellate review of the length of a sentence is limited." State v. Miller, 205 N.J. 109, 127 (2011). We assess whether the aggravating and mitigating factors were based upon "competent credible evidence in the record." Ibid. (quoting State v. Bieniek, 200 N.J. 601, 608 (2010)). We do not "'substitute [our] assessment of aggravating and mitigating factors' for the trial court's judgment." Ibid. (quoting Bieniek, supra, 200 N.J. at 608). We will
affirm the sentence unless (1) the sentencing guidelines were violated; (2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or (3) "the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience."
[State v. Fuentes, 217 N.J. 57, 70 (2014) (alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).]
In analyzing the application of aggravating factor two, we consider the Supreme Court's instructions:
When a sentencing court considers the harm a defendant caused to a victim for purposes of determining whether [the gravity and seriousness of harm] aggravating factor is implicated, it should engage in a pragmatic assessment of the totality of harm inflicted by the offender on the victim, to the end that defendants who purposely or recklessly
inflict substantial harm receive more severe sentences than other defendants. Although the definition of "serious bodily injury" in N.J.S.A. 2C:11-1(b) clearly contemplates a level of injury severe enough to trigger the [gravity and seriousness of harm] aggravating factor, "the gravity and seriousness of the harm" encompassed by that aggravating factor is a broader and less precise concept that permits the exercise of sound discretion by the sentencing court in determining whether the extent of the harm to the victim warrants application of that aggravating factor.
[Carey, supra, 168 N.J. at426 (alterations in original) (quoting Kromphold, supra, 162 N.J. at 358).]
Here, the judge's reliance on "the gravity and seriousness of harm inflicted on the victim," may have appeared to weigh Botta's death, which would be impermissible. See State v. Lawless, 214 N.J. 594, 599-600 (2013) ("[F]or purposes of aggravating factor two, the 'victim' constitutes any person who was directly harmed by the defendant in the exact offense of which he or she stands convicted."). We further note, deeming Botta a "particularly vulnerable" victim because he was a passenger in defendant's vehicle improperly extends the statutory language, which considers a victim's vulnerability as being "due to advanced age, ill-health, or extreme youth, or was for any other reason substantially incapable of exercising normal physical or mental power of resistance[.]" N.J.S.A. 2C:44-1(a)(2). Nevertheless, despite these errors, we conclude the factual findings by the judge sufficiently support the sentence imposed, obviating a need for remand.
In making his findings, the judge articulated the requisite balancing process, "qualitatively assess[ing] the relevant aggravating and mitigating factors, assigning each factor its appropriate weight." State v. McFarlane, 224 N.J. 458, 466 (2016) (emphasis in original) (quoting State v. Case, 220 N.J. 49, 65 (2014)). In issuing his quantitative and qualitative assessments of the aggravating and mitigating factors, the judge: (1) gave aggravating factor two "moderate weight"; (2) found the likelihood defendant would commit another offense "extremely high" based on his "disregard of court orders" and a finding "punishment has had no effect" on defendant's conduct, giving the factor substantial weight; (3) emphasized the need to deter similar conduct by defendant and others, apparently according the factor significant weight; and (4) gave mitigating factor seven "slight weight," noting defendant was only twenty-one and "had not had much time to commit any criminal offenses" and defendant's "deplorable driving record" reduced the weight given the factor. The sentencing range for conviction of aggravated manslaughter was ten to thirty years. Here, the sentence was three years above the mid-range, accounting for the substantial and significant weight given the two clearly applicable aggravating factors and "slight weight" to the sole mitigating factor. See Fuentes, supra, 217 N.J. at 73 ("[R]eason suggests that when the mitigating factors preponderate, sentences will tend toward the lower end of the range, and when the aggravating factors preponderate, sentences will tend toward the higher end of the range." (quoting State v. Natale, 184 N.J. 458, 488 (2005))). Therefore, the erroneous inclusion of aggravating factor two would not have altered the term imposed.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION