Opinion
A-4940-18
11-21-2022
STATE OF NEW JERSEY, Plaintiff-Respondent, v. GARRATT D. CARTER, a/k/a GARRETT DOUGLAS CARTER, GARY CARTER, GARRET CARTER, GARRETT CARTER, and GARRETT D. CARTER, Defendant-Appellant.
Uri J. Roer (Uri J. Roer, LLC) argued the cause for appellant. Lucille M. Rosano, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Theodore N. Stephens II, Acting Essex County Prosecutor, attorney; Lucille M. Rosano, of counsel and on the brief).
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
Argued November 3, 2021
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 18-02-0345.
Uri J. Roer (Uri J. Roer, LLC) argued the cause for appellant.
Lucille M. Rosano, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Theodore N. Stephens II, Acting Essex
County Prosecutor, attorney; Lucille M. Rosano, of counsel and on the brief).
Before Judges Fisher, DeAlmeida and Smith.
PER CURIAM
Defendant was driving west on Market Street in Newark on the evening of September 22, 2017, when his vehicle struck pedestrian Steven Dawkins in the roadway; at this location, Market Street consisted of four lanes, two in each direction. No one else saw the accident but several witnesses arrived shortly after it occurred. When officers arrived, they found an hysterical defendant leaning over Dawkins, attempting to give him CPR. The officers smelled alcohol on defendant who was swaying on his feet and slurring his words. Defendant was charged with one count of first-degree vehicular homicide, N.J.S.A. 2C:11-5b(3)(a).
Prior to trial, the State moved to exclude a toxicology report, which opined that Dawkins had a blood alcohol content that would have put him over the limit permitted by law if he was operating a motor vehicle; the report also stated Dawkins had PCP in his system. The judge granted the motion, finding the toxicology report was irrelevant and even if it was relevant, could not overcome the bar set by N.J.R.E. 403.
During the trial, a medical examiner testified about Dawkins' cause of death. Defendant again attempted to elicit the toxicology results, but the trial court again ruled that the results were irrelevant, and the information was more prejudicial than probative. At the trial's conclusion, the jury found defendant guilty as charged, and he was sentenced to an eighteen-year prison term subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.
In appealing, defendant argues:
I. THE COURT COMMITTED REVERSIBLE ERROR WHEN IT PRECLUDED THE VICTIM'S TOXICOLOGY RESULTS FROM BEING INTRODUCED AND ADMITTED AT TRIAL THEREBY DENYING THE DEFENDANT A RIGHT TO A FAIR TRIAL.
A. The court committed reversible error when it precluded the defense from introducing and admitting the victim's toxicology results showing a blood alcohol level of 0.206% g/dL and a PCP concentration of 0.109 mg/L since "but for" causation was an issue in this case and therefore the jury should have been allowed to consider the victim's toxicology results.
B. The court committed reversible error when it precluded the defense from introducing and admitting the victim's toxicology results showing a blood alcohol level of 0.206% g/dL and a PCP concentration of 0.109 mg/L since both prongs of causation were presented to the jury for consideration and therefore the victim's toxicology results were relevant under the second prong of causation.
C. The court committed reversible error when it precluded the defense from introducing and admitting the victim's toxicology results showing a blood alcohol level of 0.206% g/dL and a PCP concentration of 0.109% mg/L after the State's witness referenced the victim's toxicology results.
II. THE COURT COMMITTED REVERSIBLE ERROR WHEN IT BARRED SGT. FONTANA FROM TESTIFYING REGARDING HIS CONCLUSIONS AS THE LEAD ACCIDENT INVESTIGATOR IN THIS CASE RESULTING IN THE DEFENDANT BEING DENIED A FAIR TRIAL.
III. THE COURT COMMITTED REVERSIBLE ERROR BY FAILING TO CHARGE THE JURY THAT THE MOTOR VEHICLE CODE REQUIRES PEDESTRIANS OUTSIDE A CROSSWALK TO Y[IE]LD TO VEHICLES IN THE ROADWAY.
We find insufficient merit in these arguments to warrant further discussion in a written opinion. R. 2:11-3(e)(2). We add only the following comments.
Defendant, who was operating his vehicle with a blood alcohol content well above the legal limit, N.J.S.A. 39:4-50, argues that the jury did not receive a full picture of what occurred when his vehicle collided with Dawkins, causing his death. The essence of defendant's three points presented in this appeal is that the jury should have been permitted to hear evidence that Dawkins was also intoxicated. We reject these arguments. It makes no difference whether Dawkins was intoxicated or merely a careless pedestrian. Moreover, the admission of proof that Dawkins was intoxicated would have been far more prejudicial to the State's case than relevant.
What was relevant to the defense was that: it was dark - the sun having set two hours earlier - the area illuminated only by artificial light; Dawkins was dressed in dark clothing; and Dawkins was attempting to cross the street in the middle of the block rather than at a crosswalk. But the fact that Dawkins may have been inebriated and under the influence of other substances is not relevant and clearly prejudicial.
Evidence rulings are subject only to limited appellate scrutiny; we seek only to determine whether there has been an abuse of discretion, State v. Buda, 195 N.J. 278, 294 (2008), and will reverse only when an erroneous evidence ruling "undermine[s] confidence in the validity of the conviction or misappl[ies] the law," State v. Weaver, 219 N.J. 131, 149 (2014). We do not substitute our judgment for that of the trial judge unless the ruling was "so wide of the mark that a manifest denial of justice resulted." State v. Brown, 170 N.J. 138, 147 (2001).
In considering defendant's argument through the lens of this standard of appellate review, we start with the basic principle that evidence is relevant when it has a "tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. Relevant evidence possesses probative value and materiality. State v. Buckley, 216 N.J. 249, 261 (2013). In determining whether evidence is relevant, a judge must determine if there is a "logical connection between the proffered evidence and a fact in issue." Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 15 (2004). To be relevant, evidence is not required to be dispositive, or even strongly probative, as long as it has some tendency to prove a material fact. Buckley, 216 N.J. at 261. In making such rulings, the trial judge must consider "whether the thing sought to be established is more logical with the evidence then without it." State v. Hutchins, 241 N.J.Super. 353, 358 (App. Div. 1990). And, even if evidence is relevant, it may still be excluded by N.J.R.E. 403, which states, "except as otherwise provided by these rules or other law, relevant evidence may be excluded if its probative value is substantially outweighed by the risk of (a) [u]ndue prejudice, confusion of issue, or misleading the jury; or (b) undue delay, waste of time, or needless presentation of cumulative evidence."
Defendant was charged with vehicular homicide under N.J.S.A. 2C:11-5, which requires the State to prove that (1) defendant was driving a vehicle; (2) defendant caused the victim's death; and (3) the victim's death was caused by defendant driving recklessly. Because defendant was charged with first-degree vehicular homicide, the State was also required to prove that defendant was operating the vehicle while intoxicated within 1000 feet of a school property. N.J.S.A. 2C:11-5(b)(3)(a).
The statute requires proof of recklessness, which is defined by N.J.S.A. 2C:2-2(b)(3) as follows:
A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree, that considering the purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor's situation.
Beyond proving that defendant was reckless, the State must also establish beyond a reasonable doubt that defendant's recklessness caused the victim's death, Buckley, 216 N.J. at 262, meaning the State was required to show that defendant's conduct was "an antecedent but for which the result in question would not have occurred," N.J.S.A. 2C:2-3(a)(1).
This "but for" test requires that the State prove at least one of two additional forms of causation: "[(1)] the actual result must be within the risk of which the actor is aware . . . or [(2)] if not, the actual result . . . must involve the same kind of injury or harm as the probable result." N.J.S.A. 2C:2-3(c); see also State v. Parkhill, 461 N.J.Super. 494, 501 (App. Div. 2019). In a vehicular homicide case, the actual result is the victim's death in the accident. Buckley, 216 N.J. at 264. "[W]hen the actual result occurs in the same manner and is of the same character as the . . . [risked] result, the causation element is satisfied." Parkhill, 461 N.J.Super. at 501 (quoting State v. Martin, 119 N.J. 2, 12 (1990)).
When, however, "the actual result is of the same character, but occurred in a different manner from that [risked], "the jury must consider the second prong. Ibid. (quoting Martin, 119 N.J. at 13). Under prong two, "the actual result must involve the same kind of injury or harm as the probable result and must not be too remote, accidental in its occurrence, or dependent on another's volitional act to have a just bearing on the actor's liability or on the gravity of his offense." N.J.S.A. 2C:2-3(c); see Buckley, 216 N.J. at 254-55. Therefore, under this prong a jury must "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." Parkhill, 461 N.J.Super. at 501 (quoting Martin, 119 N.J. at 13).
Defendant contends the toxicology report about Dawkins was necessary for the jury to evaluate "but for" causation. The "but for" test "focuses the jury entirely upon the role of the defendant's conduct - the manner in which he drove before and during the collision. The State must demonstrate nothing more than the fatal accident would have been avoided had defendant not driven [the car] in the manner in which he did." Buckley, 216 N.J. at 267.
In Buckley, the defendant, while driving at excessive speed, lost control of his car and hit a utility pole; the passenger in the vehicle died as a result of the collision and Buckley was charged with second-degree vehicular homicide. Id. at 257-58. Prior to trial, the State moved to preclude defendant from introducing testimony that the passenger was not wearing his seatbelt at the time of the crash, which would have prevented his death, and moved to exclude evidence that the utility pole the car struck was located in a position that violated the DOT Roadway Design Manual and the passenger would have survived the accident had it been in accordance with the DOT guidelines. Ibid. The trial judge denied the State's motion, which the State appealed. Id. at 259. We affirmed the trial judge's ruling, but the Supreme Court reversed. Id. at 259, 270.
The Court found that the defendant's proffered evidence about the seatbelt and the utility pole were irrelevant to the "but for" causation inquiry and that the jury's focus should be on the defendant's conduct and his role in the accident. Id. at 267. The Court also considered whether the defendant's proffered evidence was relevant under the first component of N.J.S.A. 2C:2-3(c)'s two-prong analysis. Ibid. "Under this portion of the statutory test, the jury will determine whether defendant was aware that, by virtue of the manner in which he drove the vehicle, he created a risk of a fatal collision." Ibid. The Court found that "[i]f the jury determines that defendant was aware that his conduct gave rise to such a risk, it need not assess the exact degree of that risk, or the variables that could affect its magnitude." Id. at 268. Based on this analysis the Court concluded that evidence of the victim's failure to wear a seat belt and whether that exacerbated his chance of dying in the collision were irrelevant to the jury's inquiry into the first prong of N.J.S.A. 2C:2-3(c). Ibid.
The matter at hand presents an even stronger case for excluding the evidence proposed in defense of the charge than Buckley. There was no testimony to suggest that the collision would have been avoided had the victim not been inebriated or under the influence; to offer the evidence included in the toxicology report would have invited the jury to speculate as to its impact in this incident.
In short, we find no abuse of discretion in the judge's exclusion of the toxicology report concerning the victim. To the contrary, the judge would have erred had this evidence been admitted. Evidence about Dawkins' inebriation was irrelevant to the issues that the jury was required to consider and, even if it could by some stretch be viewed as relevant, its admission would have been greatly outweighed by its prejudicial impact and would have invited the jury to speculate.
We also reject defendant's argument that the judge erred by not instructing the jury about statutes that govern how pedestrians should cross roadways, such as subsections (2) and (4) of N.J.S.A. 39:4-36(a). Defendant, however, did not argue to the judge that his charge should include those statutory guidelines and he didn't object after the jury was charged.
To be sure, that type of information should be included in jury instructions in matters like this, see Parkhill, 461 N.J.Super. at 505-06, but we are satisfied that in these circumstances, the error was harmless.
When applied to jury instructions, plain error requires a demonstration of "legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and 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. Hock, 54 N.J. 526, 538 (1969). The alleged error must be viewed in the totality of the entire charge.
So viewed, we are satisfied that the omission of instructions tailored to N.J.S.A. 39:4-36(a) was not capable of producing an unjust result. The defense argued that Dawkins was dressed darkly, that the area was not well lit, and that Dawkins crossed in the middle of the block. Jurors, in such matters, can be expected to apply their common knowledge about the significance of those facts regardless of instructions about the law applicable to pedestrians. There is no reason to believe that they did not employ their common sense and implicitly apply these rules when considering the evidence and their verdict.
Affirmed.