Opinion
DOCKET NO. A-2973-10T4
10-18-2011
STATE OF NEW JERSEY, Plaintiff-Appellant, v. KEITH R. BUCKLEY, Defendant-Respondent.
Joie Piderit, Assistant Prosecutor, argued the cause for appellant (Bruce J. Kaplan, Middlesex County Prosecutor, attorney; Ms. Piderit, of counsel and on the brief). Robert W. Gluck argued the cause for respondent (Mandelbaum, Salsburg, Lazris & Discenza, P.C., attorneys; Mr. Gluck, of counsel and on the brief; Frank M. Gennaro, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves, J. N. Harris and Koblitz.
On appeal from an interlocutory order of Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 08-10-01828.
Joie Piderit, Assistant Prosecutor, argued the cause for appellant (Bruce J. Kaplan, Middlesex County Prosecutor, attorney; Ms. Piderit, of counsel and on the brief).
Robert W. Gluck argued the cause for respondent (Mandelbaum, Salsburg, Lazris & Discenza, P.C., attorneys; Mr. Gluck, of counsel and on the brief; Frank M. Gennaro, on the brief). PER CURIAM
After leave granted, the State appeals the trial judge's January 7, 2011 order denying its application to bar defendant Keith R. Buckley from introducing certain evidence at his vehicular homicide trial. The State sought to bar evidence concerning the decedent's failure to wear a seatbelt and the improper placement of a utility pole. Defendant wishes to introduce this evidence to argue that the decedent would not have died had he been wearing a seatbelt or had the utility pole been positioned in conformity with the guidelines of section 8.2.4 of the New Jersey Department of Transportation (DOT) Roadway Design Manual (Design Manual). After reviewing the record in light of the contentions advanced by the State on appeal, we affirm.
The State alleges that on the dry, clear day of August 12, 2008, defendant, a fourteen-year veteran North Brunswick Police Lieutenant, rapidly accelerated a borrowed Dodge Viper to ninety-four miles per hour in a forty-five mile per hour zone, lost control of the car and crashed into a guardrail and utility pole. Defendant's passenger, North Brunswick Police Lieutenant Christopher Zerby, was not wearing a seatbelt and died at the hospital shortly thereafter. Defendant, who was wearing a seatbelt, walked away from the accident with minor injuries.
On October 31, 2008, a Middlesex County Grand Jury returned Indictment No. 08-10-01828, charging defendant with second-degree vehicular homicide for "caus[ing] the death of Christopher Zerby by driving a vehicle recklessly." N.J.S.A. 2C:11-5.
On July 7, 2009, a second Middlesex County Grand Jury returned Indictment No. 09-07-1161, charging defendant with second-degree official misconduct, N.J.S.A. 2C:30-2a and b. We reversed the trial judge's dismissal of this indictment in an unpublished decision. State v. Buckley, No. A-3922-09 (App. Div. Feb. 3, 2011). Defendant filed a petition for certification with the Supreme Court, which granted the petition and summarily remanded to us to more fully consider defendant's cross-appeal. After considering the remaining issues in defendant's cross-appeal, we adhered to our earlier judgment to reverse the trial court order dismissing the indictment. State v. Buckley, No. A-3922-09 (App. Div. Aug 11, 2011). Defendant filed a petition for certification with the Supreme Court on August 19, 2011, which remains pending.
On appeal, the State presents the following issues for our consideration:
POINT I
FAILURE OF A VICTIM TO WEAR A SEAT BELT IS NOT AN INTERVENING VOLITIONAL ACT THAT ENTITLES DEFENDANT TO THE CAUSATION CHARGE.
POINT II
THE LOCATION OF THE UTILITY POLE WAS NOT AN INDEPENDENT OR INTERVENING CAUSE OF ZERBY'S DEATH.
We generally review the trial judge's evidentiary rulings during trial under an abuse of discretion standard, provided the judge's rulings are not inconsistent with applicable law. State v. Kemp, 195 N.J. 136, 149 (2008). When interlocutory review is granted on a purely legal decision given prior to trial without an evidentiary hearing, we independently evaluate the issues de novo because the trial court has neither heard nor seen witnesses and therefore has no "feel" of the case. See State v. Mann, 203 N.J. 328, 336-37 (2010) (stating that "a reviewing court owes no deference to the trial court in deciding matters of law.").
Paraphrasing N.J.S.A. 2C:2-3c, the trial judge noted that "the jury is the entity to decide whether it is fair to hold the defendant responsible for criminal conduct when there is an issue of remoteness, an accident, or the volitional conduct of a third party." He concluded that the victim's failure to wear a seatbelt and the placement of the utility pole were factual considerations that the jury may find have a just bearing on defendant's culpability. We agree.
To convict defendant for vehicular homicide, the State must prove beyond a reasonable doubt (1) that defendant was driving a vehicle; (2) that defendant caused the death of Lieutenant Christopher Zerby; and (3) that defendant caused Zerby's death by driving the vehicle recklessly. State v. Eldridge, 388 N.J. Super. 485, 494 (App. Div. 2006), certif. denied, 189 N.J. 650 (2007); see also N.J.S.A. 2C:11-5. At issue here is whether the jury should hear evidence that may be relevant not to the driver's recklessness, but to the cause of the victim's death. The principles of causation that apply to a charge of vehicular homicide are found in N.J.S.A. 2C:2-3. That statute states in pertinent part:
Second-degree vehicular homicide is defined by statute as "criminal homicide . . . caused by driving a vehicle or vessel recklessly." N.J.S.A. 2C:11-5.
Conduct is the cause of a result when:
(1) It is an antecedent but for which the result in question would not have occurred; and
(2) The relationship between the conduct and result satisfies any additional causal requirements imposed by the code or the law defining the offense.
(c) When the offense requires that the defendant recklessly . . . cause a particular result, the actual result must be within the risk of which the actor was 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.
rN.J.S.A. 2C:2-3.]
The causation provisions of N.J.S.A. 2C:2-3 apply to offenses such as vehicular homicide where causing a specific result is a material element of the crime. N.J.S.A. 2C:2-3; N.J.S.A. 2C:11-5. Thus, when evaluating whether a defendant's reckless driving caused another's death, the causation statute requires a jury to perform two separate but related inquiries. State v. Pelham, 176 N.J. 448, 460 (2003); see also State v. Milligan, 104 N.J. 67, 79 (1986).
The threshold step is the "but-for" test. Pelham, supra, 176 N.J. at 460. Under this test, an actor's conduct is deemed a but-for cause if the result would not otherwise have occurred. Ibid. (citing State v. Martin, 119 N.J. 2, 11 (1990)). If a jury concludes that a defendant's conduct is a "but-for" cause of the result, it must then perform a "culpability assessment," during which the "'but[-]for' requirement must be interpreted in the context of the mental culpability required by the Code" for the offense. See State v. Jamerson, 153 N.J. 318, 336 (1998); see Pelham, supra, 176 N.J. at 460 (citing Martin, supra, 119 N.J. at 11).
This step requires a jury to evaluate whether a defendant was in fact aware that the actual result was within the risk of his conduct or, if he was not, to then consider whether the actual result was of the same character as the probable result and was not too remote, accidental, 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; see Martin, supra, 119 N.J. at 14; Milligan, supra, 104 N.J. at 79 (noting the appropriate analytical sequence in which a jury should perform the culpability assessment).
The State contends that the facts show that defendant's alleged reckless driving was the "but-for" cause of Lieutenant Zerby's death and that defendant was aware of such a risk when he drove in the manner alleged. In reliance on these assertions, the State sought to have the trial court bar the jury from hearing evidence concerning the victim's failure to wear a seatbelt, as it deemed this fact irrelevant to the question of causation. Under N.J.S.A. 2C:2-3, however, both "but-for" causation and culpability are factual determinations left to a jury. Pelham, supra, 176 N.J. at 466; see also Milligan, supra, 104 N.J. at 79.
The Supreme Court has interpreted the language of N.J.S.A. 2C:2-3c to mean that when the actual result was of the same character but occurred in a manner different from that risked, the jury must be permitted to hear facts bearing on alternative theories about the cause of death, as these facts inform the jury as to whether it is "just" to hold a defendant criminally liable for the charged offense. Pelham, supra, 176 N.J. at 461 (citing Martin, supra, 119 N.J. at 13); see also Eldridge, supra, 388 N.J. Super. at 498. Even if the jury finds that a defendant's conduct was the "but-for" cause of death, it may nevertheless conclude either that the death differed in kind from that risked or that the death was too remote, accidental, or dependent on another's volitional act to justify a conviction. Pelham, supra, 176 N.J. at 461 (citing Martin, supra, 119 N.J. at 13); see also Jamerson, supra, 153 N.J. at 336, 338. Thus, when the causal relationship between a defendant's conduct and the actual result is in issue, the jury must be given the opportunity, under proper instruction, to consider facts relevant to alternative theories regarding the cause of death. See Martin, supra, 119 N.J. at 16-17; Eldridge, supra, 388 N.J. Super. at 498.
In Eldridge, the defendant was charged with vehicular manslaughter for recklessly causing the death of two passengers while driving under the influence of alcohol. Id. at 487. The defendant asserted that it was the act of her front seat passenger in tickling her and then pushing her face to the side, and not her driving while intoxicated, that caused the crash and, ultimately, the deaths of her two passengers. Id. at 493. The trial court failed to inform the jury that the State was required to prove that the passengers' deaths were not the result of "another's volitional act." Id. at 494. We reversed the conviction and remanded, finding that the jury must be afforded the opportunity, under proper instruction, to evaluate "competing claims about the cause of death." Id. at 498, 500.
In Martin, the defendant was charged with murder, among other crimes. Id. at 5. He acknowledged setting fire to a building, an event that resulted in the death of an occupant. Id. at 6. The defendant in Martin asserted that he was not culpable because highly-flammable carpeting, open air passageways, a hidden container filled with kerosene, inoperable fire detectors, a lack of fire doors, and the victim's intoxication all rendered the victim's death too remotely related to his conduct. Id. at 9-10. The trial court refused to charge the jury that it could consider these other factors when determining causation. Id. at 16. Interpreting N.J.S.A. 2C:2-3, the Court found the failure to charge the jury concerning intervening causation with respect to these factors to be plain error. Id. at 34.
Here, as in Martin and Eldridge, defendant asserts that the victim's death was ultimately caused by intervening factors other than his conduct. Because defendant seeks to offer facts to support an alternative theory of causation, thereby placing the causal relationship between defendant's conduct and the actual result in issue, the jury must be allowed to consider these facts, as they may have a just bearing on whether to hold defendant criminally liable for the charged offense. Pelham, supra, 176 N.J. at 461 (citing Martin, supra, 119 N.J. at 13); see also Jamerson, supra, 153 N.J. at 336, 338; N.J.S.A. 2C:2-3c.
The State argues that the failure to wear a seatbelt should not be considered an intervening cause of death as a matter of law in a vehicular homicide prosecution. Notably, the Legislature has neither defined nor restricted what may constitute an intervening cause. Pelham, supra, 176 N.J. at 461 ("Our Code . . . does not identify what may be an intervening cause."). Instead, the jury, under proper instruction, decides whether an "independent intervening cause" disrupted the causal link between the defendant's act and the victim's injury so as to have a just bearing on a defendant's liability. Martin, supra, 119 N.J. at 13 ("[I]t is for the jury to determine whether intervening causes or unforeseen conditions lead to the conclusion that it is unjust to find that the defendant's conduct is the cause of the actual result.").
The State relies on the Supreme Court's decision in Pelham to supports its contention here. In Pelham, the issue was whether the jury could consider the victim's decision to terminate life support as an intervening cause of death. Id. at 462. The Pelham Court defined an intervening cause as "'[a]n event that comes between an initial event in a sequence and the end result, thereby altering the natural course of events that might have connected a wrongful act to an injury.'" Id. at 461 (citing Black's Law Dictionary (7th ed. 1999). The court concluded that "[r]emoval of life support in conformity with a victim's expressed wishes is not a legally cognizable cause of death in New Jersey," and held that it could not be an intervening cause of death as a matter of law under the facts of that case. Id. at 468. The Court explained that the removal of life support merely allowed for nature to run its course and therefore did not alter the chain of causation. Id. at 467.
The Court concluded that the decision to terminate life support was not "another's volitional act" under the language of N.J.S.A. 2C:2-3 and thus the jury was not permitted to consider whether it qualified as an intervening cause sufficient to lessen the defendant's liability. Pelham, 176 N.J. at 461; see also id. at 469 (Albin, J., dissenting).
The Court noted that the victim's need for life support was a direct result of the defendant's actions. Ibid. Because death occurred naturally once the victim was removed from life support, the causal chain was unaffected. Ibid. As a result, the Court concluded that the decision to terminate life support was neither a "volitional act" within the meaning of N.J.S.A. 2C:2-3c nor an intervening cause of death. Id. at 461.
The decision not to wear a seatbelt is made before the injury-causing event and can have a genuine bearing on the extent of a passenger's injuries. A passenger who would otherwise incur only minor injuries could suffer fatal consequences due to the failure to wear a seatbelt. Unlike the decision in Pelham to terminate life support five months after the accident that prompted its necessity, Lieutenant Zerby's decision not to wear a seatbelt was made prior to the accident. As a result, a jury could find that such an act was an intervening factor, altering the natural course of events that would have resulted from defendant's conduct. See Pelham, supra, 176 N.J. at 461 (citing the Black's Law Dictionary definition of intervening cause); see also Model Jury Charge (Civil) 8.21 (instructing a civil jury to consider an injured party's failure to wear a seatbelt when assessing damages in a negligence claim); Waterson v. GM Corp, 111 N.J. 238 (1988).
The State cites to State v. Radziwil and numerous out-of-state court decisions as support for its contention that a victim's failure to wear a seatbelt does not diminish a defendant's criminal liability for vehicular homicide. State v. Radziwil, 235 N.J. Super. 557 (App. Div. 1989), affirmed substantially for the reasons expressed in the Appellate Division, State v. Radziwil, 121 N.J. 527 (1990). In Radziwil, the defendant struck another car from behind at a high rate of speed while highly intoxicated. Id. at 561-62. The victim's car was propelled into an intersection, where it collided with a third vehicle. Id. at 562. The victim was ejected from his vehicle after the second crash and died. Ibid. The defendant fled the scene. Ibid. He was arrested a year and a half later and was subsequently convicted for aggravated manslaughter and death by auto. Ibid.
On appeal, we concluded that evidence that the defendant drove while highly intoxicated in an extremely reckless manner was sufficient to support his conviction for aggravated manslaughter. Radziwil, supra, 235 N.J. Super. at 570. N.J.S.A. 2C:11-4a(1) defines aggravated manslaughter as "recklessly caus[ing] death under circumstances manifesting extreme indifference to human life."
Relevant here is the Radziwil defendant's argument that the trial court should have granted his motion for a judgment of acquittal because the third driver drove carelessly and the victim was not wearing a seatbelt. In reviewing a trial court's decision to deny a motion for a judgment of acquittal, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." State v. Josephs, 174 N.J. 44, 81 (2002). Under this standard, the State's evidence should be viewed in its entirety and given "the benefit of all its favorable testimony and all of the favorable inferences to be drawn from that testimony . . . ." State v. Spivey, 179 N.J. 229, 236 (2004). We rejected the defendant's contention in Radziwil, opining that these "contributing causes of the accident and resulting fatality . . . would not absolve [the] defendant of responsibility." Radziwil, supra, 235 N.J. Super. at 570. We were not, however, deciding whether or not a jury could consider evidence that the victim was not wearing a seatbelt, but rather whether a reasonable jury could nonetheless convict the defendant after hearing such evidence. Thus, this language from Radziwil does not apply to the issue addressed here.
As to the out-of-state decisions cited by the State, these other states do not have the same statutory framework as New Jersey. As noted earlier, in New Jersey, vehicular homicide requires that the reckless operation of a vehicle cause the death of another person under specific circumstances. See N.J.S.A. 2C:11-5. The causation provision N.J.S.A. 2C:2-3 finds its source in Model Penal Code (MPC) § 2.03. Pelham, supra, 176 N.J. at 473 (Albin, J., dissenting) (citing Martin, supra, 119 N.J. at 11-19). "New Jersey is only one of two states that have adopted MPC § 2.03 and explicitly added the intervening volitional conduct of others as a factor to be considered in determining causation." Id. at 473. Justice Albin points out in his dissent in Pelham that "only New Jersey has incorporated the term 'just' bearing into its causation provision." Ibid. The majority in Pelham cautioned that its decision should not be expanded beyond its facts, making clear that it held only that a "victim's termination of life support" is not an "intervening volitional act of another" within the meaning of the statute. Pelham, supra, 176 N.J. at 467 n.5; see N.J.S.A. 2C:2-3c.
The other state to adopt MPC § 2.03 is Hawaii. See Haw. Rev. Stat. § 702-214 to -217 (1993).
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The State's argument with regard to the admissibility of evidence concerning the placement of the utility pole is similarly misplaced. The State asks the court to bar the jury from considering this "obscure variable[] unrelated to defendant's recklessness." The State maintains that the admission of such evidence would be confusing and invite jury nullification. As the Supreme Court decision in Martin makes clear, when the causal relationship between a defendant's conduct and the actual result is in issue, the jury must be given the opportunity to consider facts relevant to alternative theories regarding the cause of death. See Martin, supra, 119 N.J, at 16-17; see also Eldridge, supra, 388 N.J. Super. at 498.
Defendant maintains that the utility pole violates the Design Manual. State law provides the requirements that a utility company must meet when erecting utility poles. N.J.S.A. 48:17-8 grants permission to any utility company to "erect, construct and maintain" its poles "in, upon, along, over or under any public street, road or highway," after obtaining the necessary permission. N.J.S.A. 48:17-11 requires the utility company to erect its poles in accordance with local ordinances and resolutions that designate "the location, number and size of the poles." The statute further provides that such poles shall be "so placed as not to interfere with the safety or convenience of persons or vehicles traveling on any such street, road or highway." Contey v. N.J. Bell Tel. Co., 136 N.J. 582, 588-89 (1994) (citing N.J.S.A. 48:17-11). Evidence that the placement of the pole violated the Design Manual is probative as to whether its location "interfere[d] with the safety" of this car, thereby violating N.J.S.A. 48:17-11. If the jury finds the location of the pole was unsafe, it might also find that this improper placement was an intervening cause of the victim's death.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELATE DIVISION