Opinion
DOCKET NO. A-0419-10T3
03-19-2013
STATE OF NEW JERSEY, Plaintiff-Respondent v. ANTHONY S. GENTILELLO, Defendant-Appellant.
Kevin G. Roe argued the cause for appellant (Kevin G. Roe, attorney; Kevin G. Roe and Kevin W. Roe, on the brief). William Kyle Meighan, Assistant Prosecutor, argued the cause for respondent (Marlene Lynch Ford, Ocean County Prosecutor, attorney; Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; Mr. Meighan, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Ashrafi, Hayden, and Lisa.
On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 03-01-0029.
Kevin G. Roe argued the cause for appellant (Kevin G. Roe, attorney; Kevin G. Roe and Kevin W. Roe, on the brief).
William Kyle Meighan, Assistant Prosecutor, argued the cause for respondent (Marlene Lynch Ford, Ocean County Prosecutor, attorney; Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; Mr. Meighan, on the brief). PER CURIAM
Tried to a jury, defendant was convicted of second-degree vehicular homicide, N.J.S.A. 2C:11-5a, and three counts of fourth-degree assault by auto, N.J.S.A. 2C:12-1c(1) and (2). For vehicular homicide, defendant was sentenced to seven years imprisonment with an eighty-five percent parole disqualifier and three years parole supervision pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant was sentenced to nine months imprisonment for each of the assault by auto counts, concurrent to each other and to the vehicular homicide sentence.
The judgment of conviction incorrectly states that the assault by auto convictions are third-degree offenses. We remand to the trial court for entry of a corrected judgment of conviction to reflect that they are fourth-degree offenses.
The trial judge also found defendant guilty of related motor vehicle offenses and imposed appropriate sentences, none of which are relevant to the issues on appeal.
On appeal, defendant argues:
POINT I
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO DISMISS THE INDICTMENT FOLLOWING THE STATE'S WILLFUL DESTRUCTION OF EVIDENCE, OR IN THE ALTERNATIVE, TO INSTRUCT THE JURY ON THE ADVERSE INFERENCE TO BE DRAWN.
POINT II
THE TRIAL COURT COMMITTED REVERSIBLE ERROR DURING THE JURY CHARGE BY INVADING THE FACT FINDING PROCESS OF THE JURY.
POINT III
THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY ADMITTING EXPERT TESTIMONY THAT WENT WELL BEYOND THE PERMISSIBLE SCOPE OF SUCH TESTIMONY.
A. THE STATE'S ACCIDENT RECONSTRUCTION EXPERT WAS COMPLETELY UNQUALIFIED TO RENDER AN OPINION OF ALCOHOL OR DRUG IMPAIRMENT TO THE JURY.POINT IV
B. THE REPORT OF THE STATE'S ACCIDENT RECONSTRUCTION EXPERT IS INVALID BECAUSE IT WAS BASED ON A SCIENTIFICALLY FLAWED AND UNRELIABLE METHODOLOGY.
DEFENDANT WAS DENIED HIS RIGHT TO EQUAL PROTECTION UNDER THE FOURTEENTH AMENDMENT BY THE TRIAL COURT'S ADMISSION OF RETROGRADE EXTRAPOLATION ANALYSIS BY STATE'S WITNESS.
POINT V
DEFENDANT WAS DENIED HIS SIXTH AMENDMENT CONSTITUTIONAL RIGHT TO CONFRONTATION WHEN THE TRIAL COURT DISALLOWED EXTRINSIC EVIDENCE TENDING TO DISPUTE CONCLUSIONS RENDERED BY THE STATE[']S EXPERT WITNESSES.
A. DEFENDANT WAS DENIED THE RIGHT TO CONFRONTATION BY THE TRIAL COURT'S REFUSAL TO ALLOW CROSS EXAMINATION OF THE STATE'S EXPERT, ROBERT PANDINA, REGARDING SWORN, PRIOR, CONTRADICTORY TESTIMONY GIVEN BY HIM IN ANOTHER CASE.POINT VI
B. DEFENDANT WAS DENIED THE RIGHT TO CONFRONTATION BY THE TRIAL COURT'S DENIAL OF DEFENDANT'S ATTEMPT TO CONFRONT STATE'S ACCIDENT RECONSTRUCTION EXPERT, MICHAEL O'CONNOR, WITH PUBLISHED, EMPIRICAL DATA, ADMISSIBLE UNDER THE RULES OF EVIDENCE.
DEFENDANT WAS UNDULY PREJUDICED BY IMPROPER REMARKS MADE BY ASSISTANT PROSECUTOR MICHEL PAULHUS DURING SUMMATION.
POINT VII
THE DEFENDANT'S CONVICTION IS AGAINST THE REASONABLE WEIGHT OF THE EVIDENCE AND THIS COURT SHOULD ENTER A JUDGMENT OF ACQUITTAL.
POINT VIII
THE SENTENCE IMPOSED UPON THE DEFENDANT IS MANIFESTLY EXCESSIVE.
POINT IX
THE RECORD BELOW FAILS TO ESTABLISH THE GUILT OF THE DEFENDANT BEYOND A REASONABLE DOUBT THROUGH LEGALLY COMPETENT AND FACTUALLY SUFFICIENT EVIDENCE, REQUIRING THE ENTRY OF A JUDGMENT OF ACQUITTAL BY THIS COURT.
We reject these arguments and affirm.
I.
A.
The charges arose out of a motor vehicle accident that occurred on October 21, 2001, at about 3:00 p.m., in Brick. Defendant was driving a Jeep Cherokee eastbound on Route 88. Approaching in the westbound lane was a Nissan Stanza, operated by Arthur Paolucci and occupied by his wife and two other passengers. The trial evidence, which we will discuss in some detail, revealed that defendant made an abrupt left turn, crossing the center line into the westbound lane and striking the Paolucci vehicle in the front left quarter panel. The collision caused Paolucci's death and serious injuries to the other occupants of the vehicle.
Two eyewitnesses testified at trial. Just before the collision, Thomas O'Malley had stopped at a red light. Defendant was behind him and was honking his horn. When the light turned green, O'Malley proceeded through the intersection, and defendant passed him on the right. Shortly thereafter, as O'Malley came around a bend in the road, he observed defendant make an abrupt, sharp turn to the left, striking the Paolucci vehicle in Paolucci's lane of travel. Kevin Kennedy had been driving behind the Paolucci vehicle, and he witnessed defendant's vehicle turn left, into the front left quarter panel of the Paolucci vehicle. He too said the collision occurred in Paolucci's lane.
Both witnesses remained at the scene. Kennedy called 911. Kennedy said defendant asked him "you saw them hit me didn't you," to which Kennedy responded, "no way buddy. You hit them." Kennedy was an experienced bartender, and his father was an alcoholic. He testified that defendant "seemed impaired" and "looked drunk." He said defendant smelled of alcohol, his face was red, his eyes were bloodshot, and his nose was glowing.
The first police officer to arrive at the scene was Robert Hine. According to Hine, defendant did not appear to be injured, and he declined first aid. Hine said defendant was in an excited state, boisterous, and "adamant about getting his side of the story out," namely that Paolucci caused the collision. Hine observed that defendant's eyes were bloodshot and he smelled of alcohol. Defendant initially denied to Hine that he had consumed any alcohol. Officer Scott Reitemeyer then spoke with defendant, and he also smelled alcohol and observed defendant's bloodshot eyes. When the two officers confronted defendant with their observations, he admitted to having consumed a twenty-four-ounce can of beer.
The officers then conducted a series of field sobriety tests. Defendant performed very poorly, and the officers arrested him and transported him to Ocean Medical Center for drug and alcohol testing.
Blood was drawn at 3:50 p.m., and defendant also gave a urine sample. For the first time, defendant complained of back and hip pain. He was examined by medical personnel and x-rayed. The x-rays were negative for fractures, and defendant was diagnosed with soft tissue injuries based on his complaints. No medication was prescribed, and he was released to the police.
At the police station, defendant denied having taken any medications. He said that although he had consumed a beer at about 2:30 p.m. that day, he had not had another drink since September 11, 2001, and before that had not had a drink in thirteen years.
Defendant did not testify at trial, but the statement he gave to the police was admitted in evidence. He said the vehicle he was driving belonged to his employer. He said that, at the time of the collision, he had slowed down to about twenty miles per hour in order to make a left turn onto a dirt road. As he was making the turn, "the guy just hit straight on into me." He said it appeared to him that the other vehicle went out of control and came right at him. He said it happened fast, he had activated his turn signal, and it appeared he had plenty of room to make the turn. He further said, "I don't even know if he came into my lane. I mean you'd have to look at the skids."
The State produced Susan Toner, an expert in toxicology. She testified that defendant's blood tested positive for diazepam (Valium), and his blood alcohol content (BAC) was .085 percent. Defendant had filled a prescription for diazepam in March 2001. The accompanying pamphlet contained a warning that the user should not drive or operate machinery until knowing how he or she would react to the medication. The pamphlet also warned that using the medication alone, with other medications, or with alcohol, may lessen the user's ability to drive or perform other potentially dangerous tasks. Further, the pamphlet described side effects, including "excessive daytime drowsiness, unusual weakness and dizziness, lightheadedness, headache, clumsiness, [and] unsteadiness." A pharmacist testified that the label attached to the prescription bottle would have also contained warnings that the medication "[m]ay cause drowsiness," and that "[t]aking this medication alone or with alcohol may lessen [a user's] ability to drive or perform hazardous tasks."
The State also produced Robert Pandina, Director of Alcohol Studies at Rutgers University, an expert in psychology, specializing in psychopharmacology, developmental neuropsychology, and the effects of alcohol and drugs on human physiology and behavior. By extrapolation, he concluded that, as a conservative calculation, defendant's BAC at the time of the collision was .095 percent. Pandina further testified that defendant's BAC was not consistent with his statement that he had consumed only one twenty-four-ounce can of beer about thirty minutes before the collision. In Pandina's opinion, defendant's BAC was consistent with his having consumed forty-eight ounces within an hour of his blood test.
In Pandina's opinion, the ability of an individual with a BAC of .095 percent to safely operate a motor vehicle is impaired, and such an individual is "six to 10 times more likely to be involved in a fatal collision than a sober driver." Pandina stated that a .095 percent BAC would result in significant "impairment in multiple domains of functioning . . . includ[ing] perceptual motor coordination, which would include such things as reaction time." He opined that this level of alcohol affects "the ability to track what's happening in the environment so that we can coordinate our movements within them," and that it would affect "cognitive processes, how we are thinking, how we make judgments." It would affect an individual's "emotional processes" and "the maintenance of vigilance, understanding what's around us, paying attention to things that are around us, and giving the proper attention to the circumstances that we're required to respond in." Pandina noted that these impairments were consistent with defendant's performance in the field sobriety tests. Further, if defendant accurately reported that he had not had a drink in many years, he would have had a lower tolerance and greater sensitivity to alcohol.
Pandina also testified regarding the effect of the diazepam. He opined that, based on the absence of nordiazepam (a metabolite of diazepam) in defendant's blood and urine, defendant had ingested the diazepam relatively recently. Pandina explained that diazepam reduces a person's anxiety and produces sedation. He stated, "It makes you quieter. It slows you down. It has an impact on your arousability and also, potentially, on perceptual processes as well."
Because the diazepam in defendant's blood was not quantified, Pandina could not state that the diazepam, alone, affected defendant's behavior, nor could he state the extent to which the diazepam interacted with the alcohol. He explained, however, that diazepam and alcohol "enhance the effects of one another" such that the diazepam would "add to the alcohol's sedative effects" and "increase the probability of the deficits in psychomotor behavior." He explained that it would increase the likelihood of lack of vigilance, decrease the ability to make sound judgments, and generally add to the impairment caused by alcohol. Thus, Pandina opined that the alcohol alone rendered defendant impaired, and that the diazepam "increased the sedative effects" of the alcohol, more likely than not rendering defendant more impaired.
An accident reconstruction expert, Michael O'Connor, testified for the State. Based on his examination of photographs of the accident scene and the vehicles, he concluded that, at the time of the collision, Paolucci's vehicle was traveling within the confines of the westbound lane, that defendant turned his vehicle to the left, and the collision occurred entirely in the westbound lane. O'Connor opined that "the primary causal factor of this collision was the failure of [defendant] to make proper observations of approaching traffic in the opposing westbound travel lane prior to making a left turn from the eastbound travel lane." He also expressed the view that defendant's BAC, combined with diazepam, could have impaired defendant's ability to operate his vehicle safely and may have contributed to the collision.
In O'Connor's opinion, the configuration of the roadway did not contribute to the collision, nor did the manner in which Paolucci operated his vehicle. O'Connor concluded that "it took [defendant] approximately one second from the time he started to turn to the time he impacted the Nissan," which was insufficient time for Paolucci to avoid the collision.
As we stated, defendant did not testify. He called several character witnesses and also a doctor who had examined him at Ocean Medical Center on the day of the accident. The doctor testified that defendant suffered several injuries, including contusions and sprains of the thoracic spine and pelvis. The doctor also testified that defendant was oriented to time, place, and person and exhibited no signs of alcohol or drug impairment.
B.
Defendant was initially tried on these charges in 2004. He was convicted, but a panel of this court reversed his conviction based upon errors in the jury instructions. State v. Gentilello, No. A-0671-04 (App. Div. Oct. 21, 2005), certif. denied, 186 N.J. 256 (2006).
While pending retrial, the trial court ruled on several pretrial motions. The court denied defendant's motion to dismiss the indictment based upon the State's destruction of evidence (namely, the two motor vehicles involved in the collision), which occurred after conclusion of the first trial. However, the court further ruled that defendant could move for an adverse inference charge based upon destruction of evidence at the time of trial. The court also ordered that the two arresting officers would be precluded from testifying as to defendant's possible drug intoxication.
We granted the State's motion for leave to appeal. We affirmed regarding the adverse inference charge, but reversed regarding the officers' potential testimony as to drug intoxication and remanded for reconsideration in accordance with the Supreme Court's recent decision in State v. Bealor, 187 N.J. 574 (2006). State v. Gentilello, No. A-2844-06 (App. Div. July 20, 2007).
After conducting an evidentiary hearing regarding the adverse inference charge, the trial court issued a written opinion and order on April 3, 2009, denying defendant's motion for such a charge.
The retrial occurred in May and June 2010, resulting in the verdict we described. Defendant's post-trial motion for judgment of acquittal or a new trial was denied on August 6, 2010, and defendant was sentenced on that date.
II.
We first consider defendant's argument, raised in Point I, that the trial court erred by denying his motion to dismiss the indictment or, alternatively, his motion for an adverse inference charge, based on the destruction of the vehicles by the State.
A brief recap of the relevant sequence of events gives perspective to this issue. The accident happened on October 21, 2001. Defendant was indicted on January 8, 2003. O'Connor's accident reconstruction report was turned over to the defense on April 4, 2003. Defendant's first trial occurred in July 2004. He was sentenced on September 17, 2004. After a timely notice of appeal was filed and served on the Ocean County Prosecutor's Office, addressed to Assistant Prosecutor William Cunningham, the Jeep Cherokee was released from the county impound yard to Allstate Insurance Company, the insurer of the owner of the vehicle, defendant's employer, which had requested that it be turned over to it. Cunningham authorized the release. The decision of this court reversing defendant's conviction and remanding for a new trial was issued on October 21, 2005. Paolucci's Nissan Stanza was moved from the impound lot in November 2005, while the lot was being repaved. Mrs. Paolucci had advised that she did not want the vehicle returned to her, and it was destroyed in January 2006, as part of a mass destruction of vehicles. Defendant requested inspection of the vehicles for the first time in February 2006.
Because the vehicles were destroyed with the authorization of the prosecutor before they could be examined on behalf of defendant, defendant argues that the indictment should have been dismissed or, at the very least, he should have received an adverse inference charge to the jury. Defendant relies substantially on two circumstances in support of his argument. First, O'Connor's report listed numerous items that O'Connor examined in formulating his opinions, and the vehicles themselves were not listed. At the first trial, during cross-examination, O'Connor acknowledged that he had physically inspected the vehicles. Defendant contends that had he known that earlier, he would have requested a defense inspection of the vehicles. Second, defendant points out that the prosecutor authorized removal or destruction of the vehicles after a timely notice of appeal had been filed after the first trial, and was thus obligated to preserve the evidence or give notice of its intended destruction to defendant.
When ruling on defendant's motion after the first appeal for dismissal of the indictment, the trial court found that the vehicles were not material evidence, defense counsel had not requested access to them before or during the first trial, he requested access only after remand after the first appeal, and he did not claim that the vehicles constituted exculpatory evidence. Rather, defendant sought access only to rebut the State's accident reconstruction expert. The court further noted that defense counsel had cross-examined the State's expert in the first trial, the vehicles were only one of many items O'Connor had evaluated, and O'Connor's report put the defense on notice that he most likely had examined the vehicles (although not expressly listing them). The court also found no evidence of bad faith by the prosecutor. Accordingly, the court denied the motion to dismiss the indictment, reserving to trial whether an adverse inference charge should be given.
As we have previously stated, on the State's interlocutory appeal, this court affirmed the trial court's decision to hold open the adverse inference charge issue and remanded that issue for further consideration in light of standards set forth in a newly decided Supreme Court decision. The trial court's denial of defendant's motion to dismiss the indictment was not before us on the State's interlocutory appeal; it is before us now.
After the remand, the trial court conducted an evidentiary hearing, during which it was established that O'Connor's accident reconstruction report was delivered to the defense together with photographs of the vehicles and accident scene. Although not explicitly set forth in his report, O'Connor had indeed examined the vehicles. Defendant never requested inspection or preservation of the vehicles and he produced no accident reconstruction expert.
Cunningham testified that he was not personally aware that defendant had filed an appeal. However, he said that even if he were aware of that fact, it would not have affected his decision to release the vehicles because the defense had never sought to examine or preserve them, there were many photographs of the vehicles made available to the defense, there was never any suggestion of mechanical failure in either vehicle, and the vehicles were not exhibits at trial.
The evidence also established that, as we have previously stated, Mrs. Paolucci had informed the prosecutor she did not want the Nissan Stanza returned to her, and it was destroyed in January 2006 as part of a mass destruction of vehicles at the impound yard.
Based upon this evidence, the court denied defendant's motion for an adverse inference charge. In a written opinion of April 3, 2009, the court concluded that no sanction was warranted because the vehicles were not material to the issue of guilt or innocence, defendant was not prejudiced by their destruction, and the State had not acted in bad faith.
We find no error in the trial court's denial of defendant's motion to dismiss the indictment and its subsequent denial of defendant's request for an adverse inference charge.
A trial court's ruling, granting or denying a requested sanction, is reviewed for abuse of discretion. Abtrax Pharm., Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 517-18 (1995); Bldg. Materials Corp. of Am. v. Allstate Ins. Co., 424 N.J. Super. 448, 472 (App. Div.), certif. denied, 212 N.J. 198 (2012).
Prosecutors have a duty to preserve potentially exculpatory evidence. California v. Trombetta, 467 U.S. 479, 486-91, 104 S. Ct. 2528, 2532-35, 81 L. Ed. 2d 413, 420-23 (1984). That duty is
limited to evidence that might be expected to play a significant role in the suspect's defense. To meet this standard of constitutional materiality, evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.
[Id. at 488-89, 104 S. Ct. at 2534, 81 L. Ed. 2d at 422 (footnote omitted) (citation omitted).]
In Arizona v. Youngblood, 488 U.S. 51, 58, 109 S. Ct. 333, 337, 102 L. Ed. 2d 281, 289 (1988), reh'g denied, 488 U.S. 1051, 109 S. Ct. 885, 102 L. Ed. 2d 1007 (1989), the Supreme Court limited "the extent of the police's obligation to preserve evidence to reasonable bounds and confine[d] it to . . . cases in which the police themselves by their conduct indicate[d] that the evidence could form a basis for exonerating the defendant." Thus, "unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law." Ibid.
Our own courts have identified three factors on which to focus in determining whether a due process violation has occurred when there has been suppression, loss, or destruction of physical evidence: (1) the bad faith or connivance by the government; (2) whether the evidence was sufficiently material to the defense; and (3) whether the defendant was prejudiced.See also State v. Marshall, 123 N.J. 1, 108-09 (1991); State v. Hollander, 201 N.J. Super. 453, 479 (App. Div.), certif. denied, 101 N.J. 335 (1985); State v. Casele, 198 N.J. Super. 462, 469-70 (App. Div. 1985); State v. Serret, 198 N.J. Super. 21, 26-27 (App. Div. 1984), certif. denied, 101 N.J. 217 (1985).
[State v. Dreher, 302 N.J. Super. 408, 483 (App. Div.), certifs. denied, 152 N.J. 10 (1997), cert. denied, 524 U.S. 943, 118 S. Ct. 2353, 141 L. Ed. 2d 723 (1998), overruled in part on other grounds, State v. Brown, 190 N.J. 144 (2007).]
The defendant bears the burden of proving bad faith. Youngblood, supra, 488 U.S. at 58, 109 S. Ct. at 337, 102 L. Ed. 2d at 289. Bad faith may be found where evidence was destroyed "in a calculated effort to circumvent the disclosure requirements established by Brady v. Maryland and its progeny," where there is evidence of "official animus towards" the defendant, or where there has been "a conscious effort to suppress exculpatory evidence." Trombetta, supra, 467 U.S. at 488, 104 S. Ct. at 2533, 81 L. Ed. 2d at 422.
Here, the trial court found no bad faith on the part of the State, and that finding is entitled to our deference because it is supported by the record from the pretrial hearing. State v. Elders, 192 N.J. 224, 243-44 (2007). There is no evidence that, in releasing the Jeep Cherokee to the insurance company or in authorizing the destruction of the Nissan Stanza, the prosecutor acted maliciously or intentionally to destroy exculpatory evidence. To the contrary, the prosecutor considered the record of the first trial and concluded that the vehicles, which were never trial exhibits, were neither exculpatory nor significant evidence to the defense. It also is significant that the vehicles were released and destroyed in the normal course. See Trombetta, supra, 467 U.S. at 488, 104 S. Ct. at 2533, 81 L. Ed. 2d at 422; Hollander, supra, 201 N.J. Super. at 479.
Further, the record supports the court's conclusions on the second and third prongs. "[E]vidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383, 87 L. Ed. 2d 481, 494 (1985). To be material, "evidence must both possess an exculpatory value that was apparent before [it] was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." Trombetta, supra, 467 U.S. at 489, 104 S. Ct. at 2534, 81 L. Ed. 2d at 422; see also State v. Mustaro, 411 N.J. Super. 91, 102-03 (App. Div. 2009); Hollander, supra, 201 N.J. Super. at 479-80.
Here, the vehicles were available to defendant both before and throughout the first trial, yet he made no effort to examine them, and he hired no reconstruction expert to counter the testimony from O'Connor. These facts alone suggest that the vehicles were not significant to the defense and that their destruction caused no prejudice to defendant. See, e.g., Marshall, supra, 123 N.J. at 110 ("The fact that defendant made no effort to have an expert inspect the tire until well into the trial suggests that defense counsel attached little significance to the possibility that the tire had damage other than the slit.").
Although the State's reconstruction expert examined the vehicles, it is clear from his testimony that in reaching his conclusions he relied primarily upon photographs of the scene of the accident, including the depictions of damage to the roadway as well as the vehicles. Therefore, the vehicles themselves were not of great significance to either the prosecution or the defense, and the photographs were sufficient to protect defendant's due process rights.
Thus, the court did not mistakenly exercise its discretion in denying defendant's motion to dismiss the indictment and his motion for an adverse inference charge. See Dreher, supra, 302 N.J. Super. at 481 (declining to dismiss indictment absent evidence of manifest or palpable deficiencies); State v. Peterkin, 226 N.J. Super. 25, 39 (App. Div.) (concluding that prosecutions should not be aborted due to police misconduct unless defendants' rights to a fair trial had been "irretrievably lost"), certif. denied, 114 N.J. 295 (1988); Marshall, supra, 123 N.J. at 105-10 (finding no basis for issuing adverse inference charge where three-prong test not satisfied).
III.
In Point III, defendant argues that the trial court erred by allowing the State's accident reconstruction expert to provide testimony that exceeded the permissible scope of such testimony. In Point V, defendant makes further arguments regarding the State's experts, asserting error in disallowing extrinsic evidence that would have tended to undermine the conclusions of the State's accident reconstruction expert, O'Connor, as well as the testimony of the State's expert on the effects of alcohol and drugs on human physiology and behavior, Pandina. We find these arguments unpersuasive.
As to the scope of O'Connor's testimony, defendant first argues that O'Connor was improperly allowed to testify that defendant was "under the influence of alcohol and drugs," because O'Connor was not qualified to render such an opinion. Second, defendant argues that O'Connor should not have been allowed to opine as to the cause of the collision because it was based on a scientifically flawed and unreliable methodology in that O'Connor manipulated and selectively chose evidence that supported a predetermined conclusion.
In establishing his expert credentials as an accident reconstructionist, O'Connor testified that he was educated and certified in the field and belonged to relevant professional organizations. He had been a police officer for twenty-seven years, of which he spent eleven years as a member of the vehicular homicide unit. He was trained as a breathalyzer operator and in detection and enforcement of driving while intoxicated (DWI). He had examined at least 2000 vehicular accident scenes and performed nearly 300 accident reconstructions.
He explained that, in this case, he reviewed the police reports, which included photographs of the accident scene, witness statements, and toxicology reports. He also examined the scene of the accident and the vehicles involved. Then he used scientifically accepted principles and methodologies to determine how the accident happened. He explained how photographs of the scene, which showed vehicle scrape marks on the pavement, indicated the point of impact, in the westbound (Paolucci's) lane. He also pointed out and explained the debris field and fluid trail and noted damage to the vehicles that was consistent with defendant's vehicle having turned into Paolucci's vehicle.
Based upon his review of the photographs and information in the file, O'Connor opined "that this crash occurred while [defendant's] vehicle was in a left turn movement when it impacted Mr. Paolucci's Nissan" and that defendant, not Paolucci, had caused it by failing to make proper observations of approaching traffic prior to making the left turn. His conclusions were consistent with statements from witnesses.
At several points during cross-examination, defense counsel attempted to establish that O'Connor had merely picked and chosen evidence, working backwards to justify his predetermined theory of the collision. O'Connor denied that allegation. He stated that the starting point of his reconstruction was "the end of the collision," meaning the collision aftermath. Based upon data, he developed a model. So, his process began with "a technical analysis based on physical evidence". He conceded that some evidence, particularly subjective material from witnesses, might not fit his technical analysis.
Regarding intoxication, O'Connor testified: "There has been sufficient evidence in this case to opine, with a reasonable degree of scientific certainty, that the blood alcohol level combined with a quantity of a controlled dangerous substance present in the blood of [defendant] post-collision could have impaired his ability to operate a motor vehicle and may have contributed to the happening of this collision". Defense counsel objected: (1) to use of the phrase "controlled dangerous substance"; (2) to use of the phrase "quantity of"; and (3) to the speculative form of O'Connor's opinion. The court sustained the objection in part, striking the phrase "controlled dangerous substance" and replacing it with "diazepam." The witness then rephrased his opinion in accordance with the court's ruling and without further objection from the defense.
Thereafter, during cross-examination, defense counsel premised a number of questions upon O'Connor's allegedly having told the jury that defendant was under the influence at the time of the crash. Each time, O'Connor corrected counsel, stating that he believed only that defendant may have been under the influence. Asked to justify this belief, O'Connor noted the toxicology report, which reflected the presence of diazepam in defendant's blood and a .085 percent BAC. O'Connor also had reviewed the reports of the field sobriety tests. Upon further cross-examination by defense counsel, O'Connor admitted that his conclusion, that defendant's possible intoxication could have contributed to the accident, was speculative.
O'Connor had never read Pandina's report and thus was not familiar with Pandina's extrapolated BAC of .095 percent.
--------
Later, on recross-examination, defense counsel challenged O'Connor's qualifications to address drug and alcohol impairment, noting that O'Connor was not a drug recognition expert. O'Connor conceded the point but stated that he did "have considerable experience with people that are under the influence."
On redirect, the prosecutor pursued the opening created by defense counsel, eliciting O'Connor's opinion that
[a]ny person that ingests alcohol and also ingests Diazepam, it's going to impair their ability to some degree. It may be different from person to person. But in my experience, 27 years of law enforcement, hundreds of arrests of people under the influence, I would say there is no way that it could not affect a person if you ingest those two items.Defense counsel's objection to this testimony was overruled.
Defense counsel thoroughly cross-examined O'Connor about his qualifications in assessing intoxication, but he did not object to O'Connor's qualifications until he made an ambiguous objection at the end of the prosecutor's redirect. Defense counsel also did not object to O'Connor's testimony about the accident reconstruction based upon a lack of qualifications. Therefore, our review of this issue is for plain error, namely error clearly capable of producing an unjust result. R. 2:10-2. Alternatively, if the plain error standard does not apply, we review evidentiary rulings for an abuse of discretion, including rulings on the admissibility of expert testimony. Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371-72 (2011).
"If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise." N.J.R.E. 702. "The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing." N.J.R.E. 703.
N.J.R.E. 702
has three 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. Those requirements are construed liberally in light of Rule 702's tilt in favor of the admissibility of expert testimony.
In respect of prong (3)--the individual's expertise to speak on a topic as an expert witness--our trial courts take a liberal approach when assessing a person's qualifications. Our case law is replete with examples of the generous approach taken by our courts when qualifying experts based on training and experience.
[C]ourts allow the thinness and other vulnerabilities in an expert's background to be explored in cross-examination and avoid using such weaknesses as a reason to exclude a party's choice of expert witness to advance a claim or defense. That the strength of an individual's qualifications may be undermined through cross-examination is not a sound basis for precluding an expert from testifying as part of a defendant's defense, even if it likely will affect the weight that the jury will give the opinion. Rather, a court should simply be satisfied that the expert has a basis in knowledge, skill, education, training, or experience to be able to form an opinion that can aid the jury on a subject that is beyond its ken. We allow substantial deference to the trial court when it determines whether to qualify a proposed expert. A court's witness-qualification decision is subject to essentially an abuse-of-discretion standard of review and will only be reversed for "manifest error and injustice."
[State v. Jenewicz, 193 N.J. 440, 454-55 (2008) (citations omitted).]
Nevertheless, opinions must be supported by evidence. Net opinions, defined as bare conclusions, not supported by factual evidence, are inadmissible. Pomerantz, supra, 207 N.J. at 372; Buckelew v. Grossbard, 87 N.J. 512, 524 (1981). The net opinion rule requires "that the expert 'give the why and wherefore' that supports the opinion, 'rather than a mere conclusion.'" Pomerantz, supra, 207 N.J. at 372 (citations omitted).
Here, O'Connor's opinion about the cause of the accident was not a net opinion. Contrary to defendant's argument, O'Connor did not pick and choose evidence to support a predetermined conclusion. Rather, he analyzed evidence from the collision and, based upon that analysis, he reached a conclusion about the cause of the accident.
O'Connor also never testified definitively that defendant was under the influence of drugs and alcohol at the time of the accident. Rather, his opinion was that defendant's BAC combined with the diazepam in his blood "could" have impaired his ability to operate a motor vehicle and "may" have contributed to the happening of the collision. The closest O'Connor came to a definitive conclusion of impairment was on redirect, when he stated that anyone who ingests both alcohol and diazepam will be impaired to some degree.
As a police officer trained and experienced in detecting and enforcing DWI laws, a member of the vehicular homicide unit, and an accident reconstruction expert, O'Connor was qualified to testify that in his primary opinion, based upon the toxicology report and the field sobriety reports, defendant's ingestion of alcohol and diazepam may have impaired his ability to operate his vehicle and may have contributed to the collision. That was a reasonable conclusion based upon the evidence. See, e.g., State v. Zola, 112 N.J. 384, 416 (1988) (finding no error where trial court permitted expert to testify on common-sense interpretation of the relationship between scientific fact and the inference it sustained), cert. denied, 489 U.S. 1022, 109 S. Ct. 1146, 103 L. Ed. 2d 205 (1989).
O'Connor's redirect testimony that anyone who ingests both alcohol and diazepam will be impaired to some degree might have exceeded the scope of his expertise. That opinion required an understanding of human physiology, or at the very least some experience with the behavior of individuals at various levels of drug or alcohol impairment. Although O'Connor may have had such experience, he gave no testimony on that issue, and he was not qualified as an expert on the effects of alcohol and drugs on human physiology or behavior.
Nevertheless, the court's error in failing to sustain defense counsel's objection does not constitute plain error, warranting reversal of the judgment. The evidence of impairment was overwhelming, coming from an eyewitness (Kennedy), officers who performed field sobriety tests (Hine and Reitemeyer), and experts (Toner and Pandina). See, e.g., Bealor, supra, 187 N.J. at 587-90 (finding, even absent lay opinion testimony about marijuana intoxication, evidence was sufficient to prove beyond reasonable doubt that the defendant was under the influence of marijuana while operating vehicle).
In Point V, defendant contends he was denied his Sixth Amendment right of confrontation because he was precluded from (1) cross-examining Pandina, the State's expert on the effects of alcohol and drugs on human physiology and human behavior, about testimony he had given in another case, and (2) cross-examining O'Connor about accident data for the road where the accident occurred. We find no mistaken exercise of discretion in the trial court's preclusion of this evidence.
The Sixth Amendment protects a criminal defendant's right "to be confronted with the witnesses against him." U.S. Const. amend. VI; see also N.J. Const. art. I, ¶ 10. "The right of confrontation is an essential attribute of the right to a fair trial," and it is exercised through the cross-examination of witnesses. State v. Branch, 182 N.J. 338, 348 (2005).
At the same time, trial courts have considerable discretion in controlling cross-examination. Jenewicz, supra, 193 N.J. at 467; State v. Wakefield, 190 N.J. 397, 451-52 (2007), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008). "Thus, a defendant's constitutional right to confrontation does not guarantee unlimited cross-examination of a witness." State v. Harvey, 151 N.J. 117, 188 (1997) (citing Delaware v. Fensterer, 474 U.S. 15, 20, 106 S. Ct. 292, 294, 88 L. Ed. 2d 15, 19 (1985) ("Generally speaking, the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.")), cert. denied, 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed. 2d 683 (2000).
Trial courts' evidentiary rulings are reviewed for abuse of discretion. Brenman v. Demello, 191 N.J. 18, 31 (2007). Reversal is not warranted unless the rulings were "so wide of the mark that a manifest denial of justice resulted." State v. Carter, 91 N.J. 86, 106 (1982). Any constitutional error will result in reversal unless the error was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828, 17 L. Ed. 2d 705, 710-11, reh'g denied, 386 U.S. 987, 87 S. Ct. 1283, 18 L. Ed. 2d 241 (1967).
Applying these principles, we first consider defense counsel's unsuccessful effort to cross-examine Pandina regarding testimony he gave in "the Aramark case," including testimony that a person with a .15 percent BAC "would not exhibit symptoms of intoxication to alert a server for Aramark that he was drunk when he tried to sell him a beer." The proffered cross- examination was for the purpose of impeaching Pandina's credibility with prior inconsistent testimony. The court sustained the prosecutor's objection, relying on N.J.R.E. 403, because the evidence had the capacity to result in a mini trial of the Aramark case, which "could be confusing to this jury" because of the "variables."
We initially note that the appellate record does not contain a transcript of Pandina's testimony in the Aramark litigation, contrary to N.J.R.E. 607 and 803(a)(1). In this court's published opinion in the Aramark case, we summarized Pandina's trial testimony as follows:
Robert Pandina, defendants' expert in toxicology and addictive behavior, opined that Lanzaro, who he characterized as a tolerant or experienced drinker, had a .13 percent BAC at halftime, when he was last served alcohol. At that level, Lanzaro would not have exhibited any visible signs of intoxication. Pandina explained that his calculation was based on the assumption that Lanzaro drank three regular beers before the game, one regular beer in the parking lot after the game, a few sips of beer at Shakers, and two to four beers and a glass of champagne at The Gallery. Based on those assumptions, Pandina concluded that Lanzaro would have consumed approximately three-and-a-half sixteen-ounce beers in the stadium. Pandina admitted, however, that without accounting for alcohol tolerance, even an untrained individual could notice signs of intoxication at a .15 percent BAC.
[Verni v. Harry M. Stevens, Inc., 387 N.J. Super. 160, 183 (App. Div. 2006), certifs. denied, 189 N.J. 429 (2007).]
Based upon this summary, we first observe that Pandina's testimony in the Aramark case dealt with an experienced drinker with a .13 percent BAC, not .15 percent, as defense counsel suggested in his intended cross-examination in this case. More significantly, the focus of Pandina's Aramark testimony was on the appearance of an intoxicated individual to others, which was relevant to whether the defendant had served a visibly intoxicated person. In this case, Pandina's testimony about defendant's impairment did not relate to how defendant appeared to others, but on how defendant's alcohol consumption impaired his ability to drive, which was relevant to the issue of recklessness.
Indeed, Pandina testified in this case that an individual, like defendant, with a .095 percent BAC would not be "falling down drunk" and could "talk [and] respond to questions normally." The evidence of defendant's visible intoxication came not from Pandina but from an eyewitness to the accident and from the officers who conducted field sobriety tests. Further, it is not even clear that Pandina's testimony in the two cases was inconsistent. One of the "variables" referred to by the trial court was that, in Aramark, Pandina testified about a tolerant or experienced drinker, whereas, in this case, defendant said he had abstained from alcohol for thirteen years.
The court appropriately exercised its discretion in barring cross-examination regarding Pandina's Aramark testimony, which threatened to create an unnecessary mini trial that would result in confusion of the issues, misleading the jury, and undue delay and waste of time. N.J.R.E. 4 03.
Defense counsel also sought unsuccessfully to cross-examine O'Connor, the State's accident reconstructionist, using accident records for Route 88, apparently obtained from the New Jersey Department of Transportation's (DOT) website. Defense counsel had supplied the prosecutor with these records the previous evening. The prosecutor objected because he was unable to "make heads or tails out of them," they were not authenticated, and no appropriate DOT witness was presented to explain them. The trial court agreed, and so do we.
The data defendant sought to introduce might have been relevant, and, under N.J.R.E. 607, could have been used to impeach the credibility of O'Connor's testimony that the characteristics of the roadway did not contribute to the accident. To be admissible, however, the documents had to be properly authenticated, but they were not. See N.J.R.E. 803(c)(8)(B); N.J.R.E. 901. Further, because the documents consisted merely of unexplained data, in order to rely upon them as proof that the roadway was dangerous, defense counsel would have needed a competent witness to explain the data to the jury. See, e.g., Showalter v. Barilari, Inc., 312 N.J. Super. 494, 514-15 (App. Div. 1998). Without such testimony, the jury would have been left to speculate as to matters laypersons could not be expected to understand. Ibid.
IV.
In Point VIII, defendant complains that his sentence is manifestly excessive. He argues that he should have been sentenced in the third-degree range for his second-degree crime. Such sentencing requires satisfaction of a two-prong test in which the court must be clearly convinced that mitigating factors substantially outweigh aggravating factors and the interest of justice demands sentencing one degree lower. N.J.S.A. 2C:44-1f(2); State v. Megargel, 143 N.J. 484, 495 (1996).
As to the first prong, the court found the applicability of three aggravating factors under N.J.S.A. 2C:44-1a, and one mitigating factor under N.J.S.A. 2C:44-1b. He found aggravating factor (1), the nature and circumstances of the offense and defendant's role therein, including whether or not it was committed in an especially heinous, cruel, or depraved manner. The judge based this finding on defendant's conscious decision to consume alcohol and also take diazepam without regard to warning labels before driving. The judge attributed moderate weight to this factor. The judge found and attributed moderate weight to aggravating factor (3), the risk that defendant will commit another offense. This was based upon defendant's substance abuse history, which included alcohol, marijuana, and cocaine, and the fact that he failed to accept responsibility for his conduct in this case. The judge also found aggravating factor (9) applicable, the need for deterrence. The judge attributed heavy weight to that factor. On the mitigating side, the judge found factor (7) applicable, no prior criminal history, and attributed heavy weight to it.
Upon qualitative weighing and balancing, the court was clearly convinced that the aggravating factors substantially outweighed the mitigating factors, the opposite of what is required for sentencing one degree lower. The court also found no basis for satisfaction of the second prong because there were no compelling reasons requiring downgraded sentencing in the interest of justice.
On appeal, defendant argues that the court erred in rejecting several other mitigating factors and in finding the aggravating factors it did. Defendant argues that mitigating factors substantially preponderate and, although defendant makes no particular argument regarding the interest of justice prong, urges a downgraded sentence.
First, we find no error in the trial court's rejection of the various additional mitigating factors proposed by defendant. As to aggravating factors, there was clearly no error in finding the applicability of factors (3) and (9). To the extent that factor (1) might constitute "double counting," any error is harmless, because aggravating factor (2), the gravity and seriousness of the harm inflicted on the victims, would apply in its place and be entitled at least to moderate weight. The basis for factor (2) is the harm inflicted on the three other victims, who suffered serious bodily injuries, and for whom concurrent sentences were imposed. See State v. Travers, 229 N.J. Super. 144, 154 (App. Div. 1988); see also State v. Carey, 168 N.J. 413, 425-26 (2001).
Subject to the comments in the preceding paragraph, the aggravating and mitigating factors found by the trial court are supported by the record, and we find no error in the court's rejection of other mitigating factors proposed by defendant. We therefore conclude that the record supports the trial court's finding of a substantial preponderance of aggravating factors. Not only does that finding preclude a downgraded sentence, it would justify a sentence above the midrange for a second-degree crime. Therefore, the midrange sentence of seven years that was imposed, with concurrent sentences for the other three offenses, was clearly not a mistaken exercise of discretion, and the sentence is not manifestly excessive or unduly punitive. State v. O'Donnell, 117 N.J. 210, 219-20 (1989); State v. Roth, 95 N.J. 334, 342 (1984).
V.
Defendant's arguments in Points II, IV, VI, VII, and IX lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
The matter is remanded for entry of a corrected judgment of conviction. In all other respects, defendant's conviction and sentence are affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION