State v. Brown

• Decision Date: 25 October 1988
• Citation: 549 A.2d 462,228 N.J.Super. 211
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. James BROWN and Ronald Emm, Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 211

228 N.J.Super. 211

549 A.2d 462

STATE of New Jersey, Plaintiff-Appellant, v. James BROWN and Ronald Emm, Defendants-Respondents.

Superior Court of New Jersey Appellate Division.

Argued Oct. 4, 1988.

Decided Oct. 25, 1988.

Simon Louis Rosenbach, Asst. Prosecutor, for plaintiff-appellant (Alan A. Rockoff, Prosecutor Middlesex County, attorney; Simon Louis Rosenbach, of counsel and on the brief).

Barry T. Albin, Woodbridge, for defendant-respondent James Brown (Wilentz, Goldman & Spitzer, attorneys; Barry T. Albin, of counsel and on the brief and Jeffrey L. Menkin, on the brief).

William G. Brigiani, East Brunswick, for defendant-respondent Ronald Emm (Brigiani, Gelzer, Cohen & Schneider, attorneys; William G. Brigiani, of counsel and on the brief and Phyllis Joy Cohen, on the brief).

Before Judges ANTELL, DREIER and BROCHIN.

The opinion of the court was delivered by

DREIER, J.A.D.

The State has appealed from an order of the Law Division granting defendants new and separate trials after a jury found them both guilty of death by auto, N.J.S.A. 2C:11-5, after a 12-day joint trial. The issue of severance had previously been considered at a pretrial motion by a different judge who determined in a reported decision that the joint trial could be held. State v. Brown, 219 N.J.Super. 412, 530 A.2d 402 (Law Div.1987).

There were three versions of the incident which resulted in the death of the innocent victim, Frank Dmitri. Defendants and the State all agree that between 7:30 and 8:00 p.m. on September 23, 1985, 66-year old James Brown and 18-year old Ronald Emm were in the same lane on Morristown Road, Old Bridge, waiting for a stop light at an intersection. Brown was alone in his car a few cars ahead of Emm who was accompanied by his girlfriend Marilyn Decker. When the light turned green, Brown was slow to accelerate. After the intervening cars either turned or passed Brown, according to the State and Emm, Emm passed Brown, and Brown became angry at Emm for doing so. According to Brown, Emm did not complete his pass, but rather followed Brown closely down Morristown Road, flashing his high beams and tailgating. As the cars proceeded down Morristown Road they passed a pick-up truck going in the same direction. The occupants of the truck, Christopher Mosley and Nicholas LaConte, testified that they watched the two cars drive ahead and they appeared to bump each other, although an examination of the vehicles after the eventual accident proved there was no such contact. Mosley placed Emm in front; LaConte testified to the contrary.

The vehicles then came to a stop sign at the intersection of Morristown Road and Route 34. Both turned north onto Route 34, and again the versions diverge. It is clear that the cars drove abreast of each other proceeding north on the two-lane highway, with Brown at least partially in the southbound lane and Emm in the northbound lane. On occasion Emm fell behind Brown. Emm claims that Brown tried to push him off the road onto the shoulder; Brown claims that Emm passed him on the shoulder and then kept turning towards him, forcing Brown into the oncoming southbound lane. He testified he was terrorized by this situation, as he had been since the original tailgating episode on Morristown Road. Brown further contends that although he drove past his house, he was afraid to turn in the driveway, lest Emm and his companion (Brown only saw a second figure in the car, and could not identify it as a man or woman) follow him into the driveway and possibly harm him or his 89-year old mother, who he thought might be home.

While driving north along Route 34, defendants passed a New Jersey Transit bus proceeding in the opposite direction. The driver of the bus, Harry Maskell, testified that he clearly saw defendant Emm riding in the northbound lane and turning his wheel towards Brown's vehicle, forcing Brown into the southbound lane. Maskell had to drive his bus on the shoulder in order to avoid Brown's car. He saw that Emm slowed down, and Brown reentered the northbound lane. As the two cars drove past the intersection of Cottrell Road and Route 34 a fourth witness, Roger Martin, saw the vehicles. Martin testified that the cars appeared to bump each other as they drove side-by-side, both proceeding at the same speed. Brown's car was half in the northbound lane and half in the southbound lane; Emm's car was half in the northbound lane and half on the shoulder. Emm's car then veered to its left, causing Brown's car to move further into the southbound lane. Martin then lost sight of the cars, but soon heard a loud crash, and immediately drove his vehicle to the scene of the accident. Brown's car had hit the Dimitri car head-on. Emm contended that Brown had passed him on the left (he once incorrectly said "right"), veered in front of Emm for about two to three car lengths, hit the curb and then veered back into the southbound lane of traffic, hitting Dimitri's car. The State accepted the version of each defendant insofar as it implicated the other.

After the accident, Emm did not stop, but rather proceeded a short distance to the local volunteer firehouse where he served as a volunteer fireman. He reported the accident to the firemen on duty and the police were called. Emm then returned with the firemen to the scene to give assistance. Neither at that time nor for a period of two days did Emm tell of his own involvement or the circumstances allegedly leading to the accident. Only when he heard that the police were looking for another vehicle did he volunteer his version of the facts. Emm's girlfriend, Marilyn Decker, gave her statement the same time as Emm, and corroborated his story.

LaConte and Mosley in their truck, and Martin in his car, drove to the scene shortly after the accident occurred. All three of these witnesses told police about an apparent drag race between Brown's car and another vehicle. During the search for this other vehicle, the police also found the fourth witness, Harry Maskell, the bus driver.

After the jury verdict finding both defendants guilty of the third degree ¹ offense of death by auto, N.J.S.A. 2C:11-5, defendants filed motions for new and separate trials, principally on the ground that their defenses were antagonistic. In the judge's opinion granting a new trial, she agreed with the defendants that their defenses were antagonistic, giving her general views and listing three specific reasons why defendants should be tried separately: (1) two of the witnesses, Mosley and LaConte, gave testimony that was not believable, and Mosley was the sole witness who even partially corroborated Emm's version of the facts; (2) she had improperly admitted evidence of Emm's prearrest silence, thus violating his Fifth Amendment right against self-incrimination; and (3) she had erred by failing to charge the lesser-included motor vehicle offenses of reckless driving and careless driving. Consequently, the judge found there was "a manifest denial of justice under the law."

After analyzing these reasons individually and collectively, and noting the care with which the trial judge complied with the provisions of R. 3:20-1 to support her finding of "a manifest denial of justice," we sustain her grant of new and separate trials for the defendants. We will, however, analyze her reasons one by one.

The trial judge agreed with the defendants' original basis for their motions for a new trial, namely that their defenses were antagonistic. She acknowledged that when the pretrial motion judge denied the motion to sever, he "could not have anticipated" the way this trial developed. In fact, when both defendants renewed their severance motions at the start of the trial, the trial judge herself denied them.

In State v. Brown, supra, 219 N.J.Super. at 419, 530 A.2d 402, the motion judge stated that at trial the defendants would have similar defenses, namely that they had neither explicitly nor implicitly agreed with each other to play a "game" of "cat and mouse," and therefore both should be acquitted. Both defendants were foreseen as attacking the State's "theory which is premised on the concert of action between the two." Ibid. The judge cited severance rules in a Connecticut and three federal cases (Id. at 417-418, 530 A.2d 402), determining that in those cases where severance had been ordered "the jury, in order to accept the core of testimony offered on behalf of one [defendant], was forced not only to reject the other but to convict as well." Id. at 419, 530 A.2d 402. The pretrial judge did not believe that the case would develop along the lines that it did, finding "the defenses antagonistic to each other but not necessarily irreconcilable or mutually exclusive." Ibid.

The trial judge stated that in actuality the trial consisted of the prosecutor putting on a witness, asking a few questions and then leaving it to each defendant's attorney to prosecute the other defendant. The judge noted that the pretrial judge "could not have anticipated the spectacle of Mr. Brown beating up on Mr. Emm and all of the witnesses against Mr. Emm and [the] atmosphere that that created. It was, to put it bluntly, awful...."

In addition to the defendants' antagonistic defenses, the trial judge felt that the testimony given by Mosley and LaConte was not credible. We have separately viewed their versions of the events. Mosley and LaConte apparently testified in a straight-forward manner concerning their observations as the cars passed their truck. Clearly, they were not entirely consistent in all details, but this does not render their testimony incredible. They gave their names to the police as witnesses at the scene and were asked to appear hours later at headquarters to give detailed statements. The part of their testimony which the trial judge found incredible was not their account of the accident, but their evasive explanations of their activities after the accident and before they...