State v. Milligan

• Citation: 202 N.J.Super. 336,495 A.2d 132
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. Malcolm D. MILLIGAN, a/k/a Douglas Milligan, Defendant-Respondent.
• Decision Date: 02 July 1985
• Court: New Jersey Superior Court – Appellate Division

Page 336

202 N.J.Super. 336

495 A.2d 132

STATE of New Jersey, Plaintiff-Appellant, v. Malcolm D. MILLIGAN, a/k/a Douglas Milligan, Defendant-Respondent.

Superior Court of New Jersey,

Appellate Division.

Submitted May 6, 1985.

Decided July 2, 1985.

Joseph A. Falcone, Passaic County Prosecutor, for plaintiff-appellant (Steven E. Braun, Asst. Prosecutor, on brief).

Bianchi & Casale, Nutley, for defendant-respondent (Angelo R. Bianchi, Nutley, on brief).

Before Judges KING, DEIGHAN and BILDER.

The opinion of the court was delivered by

KING, P.J.A.D.

The issue in this case is whether the existence of the death by auto statute, N.J.S.A. 2C:11-5, precludes a prosecution for manslaughter under N.J.S.A. 2C:11-4(b)(1). The charge against defendant stems from his alleged reckless and intoxicated use of a motor vehicle on May 22, 1984 in West Milford Township, Passaic County, which caused the death of Edward Gamble. We conclude, after examination of the legislation and its history, that a homicide resulting from reckless driving may only be prosecuted under N.J.S.A. 2C:11-5, the death by auto provision. We therefore affirm the Law Division order dismissing the indictment without prejudice to reindict under the appropriate statute.

Initially defendant was charged in a complaint with causing death by auto in violation of N.J.S.A. 2C:11-5. The grand jury then returned an indictment charging him with manslaughter in violation of N.J.S.A. 2C:11-4(b)(1) and no-billed the death by auto charge.

The subsection of the Code of Criminal Justice under which defendant was indicted provides

a. Criminal homicide constitutes aggravated manslaughter when the actor recklessly causes death under circumstances manifesting extreme indifference to human life.

b. Criminal homicide constitutes manslaughter when:

(1) It is committed recklessly; or

(2) A homicide which would otherwise be murder under section 2C:11-3 is committed in the heat of passion resulting from a reasonable provocation.

c. Aggravated manslaughter is a crime of the first degree. Manslaughter is a crime of the second degree. [ N.J.S.A. 2C:11-4].

The language pertinent to our problem is: "criminal homicide constitutes manslaughter when ... (1) it is committed recklessly." As a second-degree offense, a conviction for reckless manslaughter carries a presumption of imprisonment, N.J.S.A. 2C:44-1(d), for a term of five to ten years, N.J.S.A. 2C:43-6(a)(2); where a prison term is imposed, the presumptive sentence is seven years. N.J.S.A. 2C:44-1(f)(1).

The Law Division judge held that defendant could only be prosecuted under the death by auto section of the Code which at the time of the offense charged provided

a. Criminal homicide constitutes death by auto when it is caused by driving a vehicle recklessly b. Death by auto is a crime of the fourth degree and notwithstanding the provisions of 2C:43-2, the court may not suspend the imposition of sentence on any defendant convicted under this section who was operating the vehicle under the influence of an intoxicating liquor, narcotic, hallucinogenic or habit-producing drug and any sentence imposed under this section shall include either a fixed minimum term of 120 days imprisonment during which the defendant shall be ineligible for parole or a requirement that the defendant perform a community-related service for a minimum of 120 days.

c. For good cause shown the court may, in accepting a plea of guilty under this section, order that such plea not be evidential in any civil proceeding. [ N.J.S.A. 2C:11-5].

As a fourth-degree offense at the time defendant was charged, death by auto carried a presumption of a noncustodial sentence (if alcohol or drugs were not involved), N.J.S.A. 2C:44-1(e); if imprisonment was imposed the term could be up to 18 months, N.J.S.A. 2C:43-6(a)(4), with a presumptive sentence of nine months, N.J.S.A. 2C:44-1(f). Since the time of this offense, N.J.S.A. 2C:11-5 has been amended to elevate death by auto to crime of the third degree, L. 1984, c. 212, effective December 10, 1984, which carries a presumptive noncustodial sentence, a sentencing range of three to five years and a presumptive sentence in the event of imprisonment of four years. N.J.S.A. 2C:44-1(e); N.J.S.A. 2C:43-6(a)(3); N.J.S.A. 2C:44-1(f)(1).

The term "recklessly," used in both the manslaughter section and death by auto section, is defined in the "General Principles of Liability" section of the Code 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 nature and purpose of the act or his 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. "Recklessness", "with recklessness" or equivalent terms have the same meaning. [ N.J.S.A. 2C:2-2(b)(3) ].

Thus, the elements of manslaughter and death by auto are really identical where the instrumentality is a motor vehicle. In reaching the conclusion that an indictment may be returned for death by automobile alone, the Law Division judge acknowledged that the existence of a specific statute does not preclude prosecution under a general statute unless a legislative intent to limit the prosecution to the specific statute is shown by an inconsistency between the two, making it impossible to give them concurrent operative effect. State v. Gledhill, 67 N.J. 565, 579-580, 342 A.2d 161 (1975). The judge recognized that both statutes should be given effect if reasonably possible and that legislative intent of mutual exclusivity must be manifest and admit of no other reasonable interpretation. Ibid. The judge concluded that the reasoning of State v. Bott, 53 N.J. 391, 251 A.2d 115 (1969) (Legislature's separate treatment of the crimes of receiving stolen goods and autos), was applicable to N.J.S.A. 2C:11-5 because death by auto has been treated separately since 1935, despite the 1971 recommendation of the New Jersey Criminal Law Revision Committee that the special section on vehicular homicide be abandoned in deference to a general section dealing with criminally negligent homicide. See Volume II: Commentary, Final Report of the New Jersey Criminal Law Revision Commission 166-167 (1971). Judge Martin of the Law Division stated in his oral opinion

It is apparent that the Legislature has followed a consistent course of conduct since first enacting a death by auto statute. The Legislature has consistently and even in the face of a specific recommendation from the Criminal Law Revision Commission, enacted and maintained a specific "death by auto" provision. This consistency, together with the requisite standard of acting recklessly as a basis for conduct evaluation, clearly evidences that when a person recklessly operates a vehicle, a prosecution under 2C:11-5 is mandated as opposed to one under the general manslaughter statute, 2C:11-4. Except for punishment possibilities, there is no legal logic for the State's position in view of the legislative history. In fact, the Legislature has recently again reviewed the death by auto statute regarding a change in penalty provisions. [2C:11-5, death by auto, formerly a fourth degree crime has recently been increased to a third-degree offense. 2C:11-4, manslaughter, is a second-degree offense], and did not change the culpability requirement nor merge or repeal it is additional legislative history that the Legislature intended this statute to be a specific offense, not a general one under the manslaughter statute. [Matter in brackets in original].

Judge Martin also correctly observed that if the evidence shows "conduct with a culpability level beyond that of recklessness, the State may proceed to charge the offenses of aggravated manslaughter [ N.J.S.A. 2C:11-4(a) ] and even murder, [N.J.S.A 2C:11-3] if the conduct is purposely or knowingly accomplished with an automobile."

On this appeal the State argues that the language and legislative history of the manslaughter and death by auto statutes show no repugnancy or incompatibility between them. More particularly the State argues that the Legislature's purpose in enacting the first death by auto statute in 1935 was to make it easier to obtain convictions, because grand juries were reluctant to indict for manslaughter, not to replace manslaughter as an indictable crime where reckless use of an automobile resulted in a death. Since the language of the original 1935 death by auto statute was codified at N.J.S.A. 2A:113-9 and then carried over into the Code in 1978, the State argues that the legislative intent has not changed. The State also contends that the mention of a manslaughter prosecution for reckless driving in Davis v. Automobile Assn. of N.J., 124 N.J.L. 364, 12 A.2d 387 (Sup.Ct.1940), a case which decided an issue of insurance coverage, is some evidence that prosecutions for manslaughter continued after the passage of the death by auto statute in 1935. The State further contends that State v. Bott, 53 N.J. 391, 251 A.2d 115 (1969), is distinguishable because the subsequent specific legislation regarding stolen autos involved in that case provided for a greater penalty and the Court thus concluded that prosecutions under the general receiving statute, with resultant lesser penalties, would frustrate the Legislature's intent of treating the receipt of stolen automobiles as a particular social evil to be combatted by specific legislation. The State urges that here the Legislature chose to provide a lesser penalty for death by auto in order to insure that a reckless vehicular death be punished in some fashion as opposed to not at all. Finally, the State suggests that there was a difference in the degree of defendant's culpability in the case...